Matt Carthy (Cavan-Monaghan, Sinn Fein)

I welcome the opportunity to speak on this issue. I commend Deputy Coppinger on again highlighting this issue by bringing it here to the floor of the Dáil and, more importantly, by bringing forward this legislation because legislative change is required in this area. I acknowledge that the Minister, Deputy O'Callaghan, has recognised this to the point that he has said he plans to deal with this issue as part of the criminal law and civil law (miscellaneous provisions) Bill 2025, which the justice committee I chair will be shortly conducting pre-legislative scrutiny of. I have some fears, though, due to the remarks by the Minister of State. What the Government has done very well is set out what the problems may be in terms of a potential constitutional challenge. It has done this without actually dealing with the problems or setting out any of the resolutions. In fact, the Government has just said there is a problem and it is not going to deal with it at all. That is very regrettable.

It is also regrettable that rather than allowing this Bill proceed to Committee Stage, the Government has tabled a delaying amendment. It is bemusing because usually the Government puts forward an amendment proposing a delay of nine months. It is often known as the pregnancy amendment clause. The Government recognises it would be too crass to even suggest that so it is a 12-month delay on that basis. That is regrettable because I reiterate as the chair of the Oireachtas committee that will deal with this issue that we would welcome debates to address the issues the Government has said exist. That would be the most appropriate mechanism and forum for addressing any challenges that might present. This is because - and it has been said but it needs to be repeated - victims of rape and sexual violence have been very clear that the disclosure of counselling notes has been doubly traumatising for them. Very commendably, many victims have spoken about this publicly. They have waived their anonymity to set out in stark terms what the impact of this provision in law has meant for them. As legislators, we have an obligation to listen, hear and, more importantly, to act because clearly this is not an easy thing to do. It is a measure of the anger and frustration of the victims at how the disclosure of counselling notes has left them feeling.

Victims and survivors have spoken of it as a second violation, soul destroying and an invasion of privacy. For victims, the idea that their private counselling notes, where they talk about what happened to them, would be read to the perpetrator, the defence team, the prosecution and, even to be quite frank about it, the judge, significantly compounds the trauma they have experienced. Even without this provision, we should note that many victims and survivors are reluctant to even come forward and report what has happened to them because they often feel they are the ones who will be put on trial. The disclosure of counselling notes for many just simply confirms their fears about how the justice system treats victims of rape and sexual assault. To be fair to others, they have spoken about how they have not got counselling because they did not want to have their personal notes disclosed to the perpetrators and to the court. This then delays their ability to rebuild their lives and work through the violence and trauma they have experienced. We need to understand this as legislators. We are being told there is a provision in our law that creates a situation where some victims either do not go to the counselling they need or do not go to court. This is a very big deal and we cannot just brush it off legally here.

I was struck by the argument regarding the value counselling notes could bring to a trial.

It is not the victim’s words; rather, it is the counsellor’s record and, often, his or her views.

To go off on a tangent, I dealt with a family once whose young teenager was misdiagnosed by every health professional as having an eating disorder. Throughout the process, no one believed the child did not have an eating disorder. The child actually had a physical condition that was resulting in a loss of weight. Subsequently, the family received all the medical records and details through freedom of information requests. As part of that, the psychologists who the family met in hospital wrote in their notes to the effect that the child and family were in denial, etc. Imagine something like that being handed to a judge. In that instance, the psychologist involved was entirely wrong. In a defence team’s hands, however, those notes would be used to destroy a legitimate case. We need to be mindful of that. We also need to be mindful that the majority of counsellors, psychologists and psychiatrists are good at their job and play a good and important role. They are telling us clearly that this, in their professional opinion, is dangerous and that there are implications as to it having a particular impact.

I welcome the visitors to Dáil Éireann, including those from the professions who deal with this issue at the coalface. Usually, we say to people in the Public Gallery that although they are welcome, they should not have to be here. In this instance, however, those present should be coming to the Oireachtas. We should be bringing them here to get their perspective on the experiences of the people they see in counselling sessions relating to the criminal justice system in order that we can learn and ensure we make the system better. It is virtually indisputable that we need to strengthen the entire justice system when it comes to the support it offers to victims and survivors, both in the context of the experience of dealing with the policing system and the Courts Service and the supports that are provided through the legal process and afterwards.

All of this needs to be premised on ensuring that the process does not add to the trauma. This should be the starting point when we are dealing with victims of any crime, but particularly cases of sexual assault, rape and gender-based violence. We must end the lengthy delays for rape and sexual assault cases that are forcing people to put their whole lives on hold for long periods. We have to improve communications and protections for victims and survivors when perpetrators are released, which is often a difficult and anxious time for many. This is just not considered in the law at all.

To speak on behalf of the members of the Joint Committee on Justice, Home Affairs and Migration, we have been clear that we wish to see some of the campaigners who have courageously spoken out on this issue, including the solicitors who have been proactive in respect of it, to be part of our pre-legislative scrutiny of the Minister's legislation. The greatest travesty would be if the Minister brings forward a legislative change that goes through the Houses, which can take time, and then, at the end, Deputy Coppinger ends up having to redraft her Bill and bring it back before the Dáil because the meaning of the Minister’s legislation, in the context of the Judiciary, meant little difference to those people who have sent us a clear message that the system needs to change profoundly.

We have been given a challenge that tests all of our words, both Government and Opposition, and particularly those of the male Members of this House. While we have said that there will be zero tolerance, a sea change and so forth, we now have an opportunity whereby we can prove all of our utterances right. I appeal to the Minister of State, the senior Minister and all members of the Government to ensure that we do not waste this opportunity.

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