Victims of rape and domestic violence deserve to know their disclosures to counsellors remain confidential, but recent media reporting has highlighted a flaw that anyone navigating the family or criminal courts has known for a long time – these conversations can be accessed by perpetrators for legal purposes.
This includes notes, transcripts, audio and video files from support services including the national sexual and domestic violence hotline 1800 RESPECT.
I asked Melbourne lawyer Melanie Vairawanathan to shine a light on what is happening.
“This is such an important (and honestly really confronting) topic, and I see this play out in family law matters more often than people realise,” the founder and principal of Melmark Law explains.
“In my practice, I regularly see victims and survivors retraumatised when their most vulnerable disclosures, whether to psychologists, support services or in medical records, are subpoenaed and relied upon in proceedings, sometimes by the very person they were seeking protection from.”
Mel said victim and survivor’s conversations with services like 1800RESPECT are not automatically confidential ‘in the way people assume’.
“If a subpoena is issued, those services can be legally required to produce records including notes, transcripts and recordings,” she said.
“That is how these materials end up before the court and, in some cases, in the hands of perpetrators.”
So how do we avoid our confidential discussions becoming part of the other party’s legal response?
Mel said there are ways to try and prevent it but, as with all things legal, it’s not simple.
She explained that objecting to a subpoena usually involved filing formal objections, preparing affidavit material, attending a subpoena objection hearing and making legal submissions.
“It is effectively a separate court process, time sensitive and often costly, which is one of the reasons many victims do not pursue it,” Mel said.
“Given the current state of the law, victims and survivors should be mindful that what they share may not be absolutely confidential in a legal sense.
“In certain circumstances, communications with support services can be subject to subpoena, depending on relevance and the issues in dispute.
“The system is trying to balance fairness with protection, but right now, that balance does not always feel safe for victims.”
MEL’S TIPS FOR PROTECTING YOUR CONVERSATIONS
- Ask how your information is stored and whether records or recordings are kept;
- You can choose to remain anonymous or use a pseudonym when contacting support services, particularly if you are not yet comfortable sharing your identity;
- Be aware that anything recorded (including chats, emails and notes) can potentially be subpoenaed;
- Seek legal advice early if separation or court proceedings are likely, before disclosing highly sensitive information;
- If a subpoena is issued, act immediately – there are strict timeframes to object
- Do not ignore a subpoena affecting your records. You may have grounds to object on relevance, scope or public interest;
- Consider speaking to your lawyer about how to safely document your experiences in a way that protects you while still supporting your case; and
- Understand that not all material will ultimately be admitted by the Court, but once produced, control over it can be limited.
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