Therapeutic Records On Trial

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By Rachel Thompson

"What if I'd done something different?"

It's a question victims of sexual assault commonly ask in therapy. Therapists understand it as a way of taking control of a traumatic situation, and record it in their files.

When these records appear in court, they are introduced into a climate where there are many myths and stereotypes about sexual assault, according to Sheila Martin, Professor of Law at the University of Calgary . Martin represents a group of sexual assault centres in Alberta that have applied to speak at the Supreme Court case against Brian Mills this fall. The case will call to question the ability of such records to be readily brought into court.

"We don't question like the police do," said Danielle Aubry of the Alberta Association of Sexual Assault Centres represented by Martin. She said it was dangerous to present information from records that indicate the victim blames herself in any way. Court personnel and defence lawyers do not understand sexual assault trauma, she said, adding that often statements are taken out of context to attack the victim's credibility.

Therapeutic records are not relevant in court because they are not investigative reports, Aubry said. She said that unlike police and forensic doctors, therapists are not trained to document details, such as the time of the assault. "A lot of the details in [our records] are not accurate, because those details are of no interest to us."

Previous Supreme Court ruling came out of the case against Bishop Hubert O'Connor, who was allowed to access the counselling records of the young women he was charged with sexually assaulting in a residential school. Following this decision, Parliament passed Bill C-46, which still allows the accused to access the private records of the victim, but set a higher threshold than the O'Connor decision.

The Mills case goes to the Supreme Court after a Court of Queen's Bench Judge in Alberta ruled that Bill C-46 was "unconstitutional", denying Brian Mills' right to a free trial. "As important as privacy rights are, the fact is that the criminal justice system must remain vigilant to the danger of wrongful conviction," concluded Justice Paul Belzil in his decision.

"We take issue with that," said Martin. "The complainant or patient has separate constitutional rights that would allow the privacy of her records."

Mary Marshall, legal council for the alleged victim in the Mills case, called the use of such records distracting to the court process. "How does having women's intensely personal and private records disclosed help?" she asked.

Marshall said many victims withdraw their charges, rather than allow the very men accused of assaulting them to read their records. It has discouraged many from seeking therapy, she said.

"The greater the threat that private records will be disclosed, the less likely victims will come forward to say they have been sexually assaulted," said Martin. She said in many cases it stops people from getting therapy until after the court process has been completed.

"The fact that we have a six percent reporting rate of sexual assault in this country is disgraceful," said Aubry. The ability of defence attorneys to "literally reach into our files" makes assault centres like the one Aubry works at unable to do their jobs, she said. "[We can't] say what we do here is private and confidential."

A Supreme Court decision on the Mills case would be binding upon all lower courts.

For more information call the Alberta Association of Sexual Assault Centres at (403) 237-6905.