Pre-Trial Therapy: A Crucial Moment

All therapists work with the impact of sexual violence due to its prevalence in our society. As examples: one in three women will be affected worldwide, five to 10 per cent of men in developed countries have a history of abuse, and 49 per cent of transgender people interviewed for a 2015 study disclosed this as part of their lived experience.

We may already include appropriate levels of training, skills, and experience in our ethical commitments to survivors of sexual violence.

What should also be included is a working understanding of guidelines set by the Crown Prosecution Service (CPS) in the United Kingdom, which are applicable to clients who are engaged in the criminal justice system whilst we support them. This includes those who have an active report with the police, are having their case investigated by the police or CPS, and are going to court as part of a trial.

The CPS places all such persons under the category of ‘pre-trial’, which for therapists means talking therapy in the above circumstances is being delivered pre-trial. It is true that these guidelines are applicable to anyone who has reported any kind of crime. In a case of systematic discrimination, these guidelines have been disproportionately applied to those who have reported a sexual crime more than any other.

What is wrong with the current pre-trial therapy guidelines?

The result is a very public backlash to the inaccessibility of therapy services for survivors, particularly as the current CPS guidelines state that a person accessing talking therapy pre-trial is not allowed to discuss details of their experiences of sexual violence with anyone – including their therapist. This is because their account of what happened must be protected, as it is their oral evidence in their case.

Unfortunately, the guidelines also cast doubt on the integrity of the therapist’s role. They suggest that, if a client speaks freely, as they normally would do in therapy, the therapist could potentially influence that person’s account. This element of the guidelines includes reference to ‘false memories’, which is the highly disregarded notion of a therapist being able to create a memory of abuse that did not occur in the mind of their client.

What has been the impact on survivors?

In practice, this has meant survivors have been denied talking therapy, as services are concerned about negatively affecting criminal proceedings – or they have only been offered brief and structured work. Many survivors decline sessions themselves as they are of course not expecting to be told that there are limits on what they can discuss in therapy, and the need for many to be able to voice what they’ve experienced is vital to their recovery.

What changes are being proposed?

The CPS has responded to this nationwide issue by creating and publishing a new provisional set of pre-trial therapy guidelines for public consultation.

• The above clause on protecting oral evidence has been removed, which lifts a forced silence between therapist and client. This makes it easier for services to be delivered to, and accepted by, survivors.
• A section on the topic of false memory remains, with the explicit acknowledgement that this phenomenon no longer has a valid place in talking therapy. However, under this section, therapists are asked to be cautious over how convinced a client may be about anything they recall, with the understanding that it may not be the truth. These statements, sitting so closely together, may retain the same negative impact on the integrity of talking therapy by the criminal justice system.

• There is much more detail for therapists on appropriate note-taking, including recording first disclosures. Both are helpful in the instance that therapy notes are requested as a potential form of evidence. It does however mean that therapists need to consider the ethical dilemma of being asked to keep court-ready notes, when our work is focused on symptom alleviation and emotional support.
• An onus on the survivor’s right to access talking therapy is stated throughout, as is managing consent in the process of delivering therapy and handling requests for notes.
• The therapist’s role as a potential witness, including the possibility of appearing in court to give oral evidence, is made clearer.

There are considerations to be made for therapists, and the wider field, as to how highly specialised our role is when working with people affected by sexual violence, given the obvious ethical and confidentiality considerations to be made in undertaking such a role at a delicate time in a client’s life. This should include mandatory training to ensure a more consistent standard of service delivery, as well as provide assurance for survivors navigating the mental health system to find the right person to support them.

How can therapists contribute to the public consultation?   

In any case, the time for therapists, organisations, and survivors to use their collective voices is now. This is a crucial moment in securing the rights of those affected by sexual violence in seeking justice, and accessing therapy.

Any member of the public can submit their feedback as part of the consultation by the 30^th of October 30 here: https://www.cps.gov.uk/consultation/public-consultation-guidance-pre-trial-therapy

Psychotherapy with Survivors of Sexual Violence: Inside and Outside the Room, by Erene Hadjiioannou, is due to be published by Routledge in 2021.