Ask AGs to ensure support for survivors in court

Victim-survivors of sexual violence deserve to be treated with dignity, care, and respect as they seek justice. But right now, too many victim-survivors who engage with the criminal legal process are left without support to navigate the complex and often retraumatising system.

That means that if a defence lawyer wants to subpoena your personal medical records, or counselling notes into court as evidence, you don’t have a lawyer to turn to for advice on whether you can oppose that or someone to appear in court to argue for your interests. This lack of support compounds trauma and undermines confidence ...

Victim-survivors of sexual violence deserve to be treated with dignity, care, and respect as they seek justice. But right now, too many victim-survivors who engage with the criminal legal process are left without support to navigate the complex and often retraumatising system.

That means that if a defence lawyer wants to subpoena your personal medical records, or counselling notes into court as evidence, you don’t have a lawyer to turn to for advice on whether you can oppose that or someone to appear in court to argue for your interests. This lack of support compounds trauma and undermines confidence in a system that is meant to deliver justice - and it needs to change.

The recent Australian Law Reform Commission Inquiry into Justice Responses to Sexual Violence recommended that governments change this. Now governments need to act.

Can you join the call for Attorneys-Generals to ensure lawyers can appear in court to protect victim-survivors’ confidential information and records, and properly fund this vital service?

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Can you join the call for Attorneys-Generals to ensure lawyers can appear in court to protect victim-survivors’ confidential information and records, and properly fund this vital service?

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I am writing to you because I want to see a future where people who’ve experienced sexual violence are treated with dignity, care, and respect.

I’m concerned that right now most victim-survivors are left to navigate the criminal legal system alone - without advice on their rights beforehand, or an advocate to uphold their rights and privacy in court.

I’m particularly concerned that without the protection of their own lawyer, a victim-survivor might face the prospect of deeply personal counselling or medical records being brought before court, and used to try and intimidate or humiliate them.

I’m aware that because prosecutors represent the interests of the Crown, not the victim-survivor, too many victim-survivors have been left without support or an advocate for their interests in these deeply distressing and vulnerable moments.

This has to change.

I urge you to support action and investment to improve support for victim-survivors of sexual assault, including during the court process.

Specifically, by:

1. Amending relevant legislation to ensure victim-survivors are allowed to have a lawyer appear in court on their behalf to protect their confidential information and records (in line with Recommendation 10 of the ALRC inquiry - copied below).

2. Ensuring victim-survivors can access a specialist lawyer for advice on their rights and needs during criminal proceedings (in line with Recommendation 1 & 9 - copied below).

I’m aware that Attorneys-General are meeting very soon, and would welcome an update on progress towards implementing these and other recommendations from the ALRC Inquiry into Justice Responses to Sexual Violence.

I look forward to your response.

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ALRC Recommendation 1
In the context of the significant under-reporting of sexual violence, and to ensure people who have experienced sexual violence are able to engage with the justice system in a safe, informed, and supported way, the Australian Government, together with state and territory governments, should fund relevant organisations (including sexual violence services, community legal centres, Aboriginal Community Controlled Organisations, Legal Aid Commissions, and participating legal firms) to provide:
a. Independent Legal Services
b. Justice System Navigators
c. Safe Places to Disclose

ALRC Recommendation 9
As a component of the Independent Legal Services recommended in Recommendation 1, the Australian Government, together with state and territory governments, should fund and support independent legal advisers who will be available to: a. provide complainants of sexual violence with legal advice as required during the criminal justice process; and b. represent complainants in court when applications are made to subpoena or inspect materials which may contain a complainant’s personal, sensitive, or confidential information (including sexual assault counselling communications).

ALRC Recommendation 10
The Commonwealth, states, and territories should amend relevant legislation to provide that independent legal advisers have standing to appear in court on behalf of complainants of sexual violence in applications to subpoena or inspect materials directed to third parties which may contain a complainant’s personal, sensitive, or confidential information, including sexual assault counselling communications. The legislative changes should include a mechanism which ensures the complainant is notified that a subpoena has been sent to a third party to produce personal, sensitive, or confidential information, including sexual assault counselling communications, relating to the complainant.

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