Pre-trial therapy: Re-digging the dirt
Twenty years ago this year, our Advisory Panel member Jennifer Temkin wrote of the danger of therapeutic notes becoming admissible evidence in sexual violence trials. The intervention was timely then, coming shortly after the introduction of a ‘rape shield’ law in England and Wales effectively limiting the admissibility of sexual history evidence. While heralded as a feminist victory, the introduction of rape shield laws in other countries increased alternative strategies intended to impugn the credibility of someone who has experienced sexual violence at trial – in particular, by trying to access medical, psychiatric, and therapeutic records.
Temkin’s fear was that knowing therapeutic records could be used at trial may prevent people from accessing support after sexual violence, as if they did, such evidence could be particularly prejudicial to a jury. Particularly as therapy is intended to make space for people to express feelings of guilt, shame, and self-doubt while working through and with their experiences of violence, Temkin considered such content profoundly incompatible with (and irrelevant to) the realm of criminal justice.
At that time, the Crown Prosecution Service’s solution to this problem was to encourage people to not talk about their experience of sexual violence in therapy until the trial was over, if there was to be one. The ‘gagging’ effect of this guidance was picked up in 2019 by the then shadow Attorney General Shami Chakrabarti, who said that ‘the suggestion that rape victims should avoid vital mental health treatment is as cruel as it is clumsy’. Chakrabarti’s platforming of this issue led to a significant overhaul in legal guidance around evidence pertaining to the medical, psychiatric, and therapeutic realm. The most recent iteration of this guidance, published at the end of May 2022 alongside new Attorney General guidelines on disclosure, together detail the ‘new and improved’ advice for pre-trial therapy.
While this guidance is supposedly ‘clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution’, it has been subject to fierce criticism. The new shadow Attorney General, Emily Thornberry, has suggested it marks a drastic increase in the admissibility of psy evidence, and ‘risks opening the door for the disclosure of almost all notes from pre-trial counselling sessions’. Thornberry is one of nearly a hundred MPs calling for the guidance to be scrapped. Victims’ Commissioner Vera Baird has similarly condemned the guidance, and suggested that therapeutic notes be excluded from trial proceedings altogether.
For Baird, this suggestion comes off the back of some legislative success, as she last year achieved stricter restrictions around the use of mobile phone evidence in sexual violence trials. This was incidentally also Temkin’s proposed solution to the increasing encroachment of the carceral state into therapeutic spaces back in 2002. Temkin cited legislation in Pennsylvania, Baird in New South Wales Australia, where evidence from confidential counselling is restricted in a similar way to ‘rape shield’ laws protecting sexual history evidence – defence counsel would have to apply to adduce such evidence in court. When asked for comment on the new guidance, Temkin reiterated
I agree with the criticism of the latest CPS Guidance. I don’t think defence counsel will have too much difficulty getting access to the notes based on the new test and I continue to feel that therapy notes should be excluded altogether.
While Baird and Temkin advocate legislation restricting access to therapeutic records, my research paints a bleaker picture of the current landscape for people who have experienced sexual violence in England and Wales, or perhaps I have less faith in carceral solutions. One need only look to the history of the ‘rape shield’ law – which was almost instantly rewritten, and is now often wilfully ignored, to understand that no amount of evidentiary restrictions can remedy the law’s suspicion of stories of sexual violence, and the minds of the people who tell them.
For while the CPS were carefully redrafting their guidance on the use of psy evidence, Edward Gabbai was having his conviction for sexual violence against multiple people overturned, in part, using therapeutic notes. In what follows, I provide a brief explication of this case with deep sympathy for those involved, in the minimum amount of detail to make my intended points.
Gabbai appealed against his conviction on multiple grounds, but the one relevant here concerns the therapeutic record of one of the people Gabbai assaulted – for which there is video evidence, recorded by Gabbai on his phone. The law is often an inhuman place, and in order to afford this woman some humanity, I refer to her from now on as ‘Jude’. Jude had experienced sexual violence at several different points in her life, and had sought therapeutic and medical support for various reasons, often discussing such experiences. Jude’s therapeutic notes, variously made by counsellors, GPs, and other mental health workers, are heart wrenching to read.
The notes document the often messy and painful feelings brought up by experiences of sexual violence. People typically implement complex ‘tightrope talk’ in relation to responsibility and sexual violence, as it is both important to understand that the violence they endured was not their fault, and to attribute one’s past self with some responsibility and agency in order to feel some control over the experience to take forward. This often results in complex narrative negotiations, and here the notes paint a painful and dynamic picture of Jude’s various struggles:
The next thing she knows, she’s in a taxi with a stranger and is raped. She couldn’t remember all the details and wonders whether she consented to it as she is a bad person…
Maybe it wasn’t rape…
Taken from a bar. I only said “no” half way through…
I took him back to my flat. I didn’t say no to begin with…
The last of these extracts was within the notes of Jude’s university counsellor. After being sexually assaulted by her then boyfriend, Jude sought counselling for support, and trusted them enough to tell them what had happened. The extract continues: ‘Lying. Attention-seeker.’  In the appellate judgment, they note that ‘the implication of the last phrases is, or may be, that they were self-descriptions’.
Regardless of whether they were or not, the defence had initially sought to introduce this evidence through a section 41 application – applying for an exception to the rape shield law – as well as an application to introduce evidence of ‘bad character’; what I would call a literal smear campaign. The argument was that Jude’s previous behaviour indicated a proclivity towards false allegations, and risky sex, and was thus relevant to the trial. The appeal was allowed, Gabbai’s conviction was quashed, and any residual investment I had in the law with it.
Whether such a case would proceed in this way if England and Wales made therapeutic notes exempt from trial proceedings is difficult to say – the complex acrobatics performed by the defence to enlist two seemingly irrelevant evidentiary frameworks may have still found a way around the exemption. However, standing up for limits on the reach of the carceral state remains an important practice – regardless of who is invested in the law and the solutions it offers to societal problems.
In the 2020 draft of the guidance on pre-trial therapy, the CPS essentially invited therapists to act as proxy criminal justice workers. The guidance instructed professionals to respond to any disclosures of sexual violence by encouraging reporting to the police as soon as possible, and to take meticulous and ‘factual’ notes of all such accounts as ‘evidence’. I, along with I’m sure many others, responded to the public consultation on this guidance with fierce objections. Notwithstanding the fact that accounts of sexual violence produced in a therapeutic setting are worlds away from those required of criminal justice proceedings, such guidance also fails to take seriously people’s extremely legitimate reticence or objection to engaging with criminal justice in particular, and carcerality in general. Using the intimacy of a therapeutic relationship to encourage engagement with the law is not only state violence, but it drastically threatens the safety and trust of interpersonal relationships, and thus compromises people’s access to support.
The framing of therapists as proxy criminal justice professionals has been removed from the more recent draft of the guidance. While this can hardly be considered a ‘victory’ in such sobering times, it is an important reminder of what we are fighting for, one aspect of which includes safe spaces to express experiences of sexual violence, exempt from state intervention.
Temkin’s original 2002 article was aptly called ‘Digging the Dirt’, and it reminds me of a passage in a paper by Sameena Mulla and Heather Hlavka in which they are discussing the applicability of Wittgenstein’s philosophy to social science research. They write that
Another analogy Wittgenstein uses within the Investigations is that of digging in the dirt. When we pick up a shovel to dig, he states, we could either think of ourselves as aiming to dig until we hit bedrock or simply turning over the earth. It is the second model, that of turning over the earth, that appeals to Wittgenstein. Aiming for bedrock may result in definitive and high-impact research, but it closes the door of future inquiry by presuming that there are no questions that ought to be pursued beyond the immediate research agenda.
We are in decidedly well-trodden ground on the issue of carceral access to therapeutic spaces and conversations. Anyone who experiences sexual violence has a right to a safe and supportive space in which to express their process and feelings – however messy. In turning over this ground again, perhaps we can forge new safe spaces for stories of sexual violence which are so often silenced within the realm of criminal justice. As Lexie Bean wrote in 2018, ‘nothing is heavier than silence’. The stories we tell about experiences of sexual violence in therapeutic spaces are complex, dynamic, evolving. They are spoken in a different language to that compelled by the law, which exercises a register of fact-finding chronology and rationality. They are fundamentally incompatible, and whether we resolve that by new legislation restricting access to therapeutic notes, or through abandoning investment in carceral solutions altogether, is up to us.
 Jennifer Temkin, ‘Digging the Dirt: Disclosure of Records in Sexual Assault Cases’ (2002) 61 Cambridge Law Journal 126.
 Whether it actually was a victory is up for debate: Clare McGlynn, ‘Feminist Activism and Rape Law Reform in England and Wales: A Sisyphean Struggle?’, Rethinking Rape Law: International and Comparative Perspectives (Routledge 2010).
 Simon Bronitt and Bernadette McSherry, ‘The Use and Abuse of Counseling Records in Sexual Assault Trials: Reconstructing the “Rape Shield”?’ (1997) 8 Criminal Law Forum 259.
 Temkin (n 1); For more recent work around this, see: Louise Ellison, ‘The Use and Abuse of Psychiatric Evidence in Rape Trials’ (2009) 13 The International Journal of Evidence & Proof 28; Olivia Smith, Rape Trials in England and Wales: Observing Justice and Rethinking Rape Myths (Springer 2018).
 Susan J Brison, Aftermath: Violence and the Remaking of a Self (Princeton University Press 2002); Janice Haaken, ‘The Recovery of Memory, Fantasy, and Desire: Feminist Approaches to Sexual Abuse and Psychic Trauma’ (1996) 21 Signs 1069.
 Temkin (n 1).
 Crown Prosecution Service, ‘Therapy: Provision of Therapy for Vulnerable or Intimidated Adult Witnesses: Legal Guidance’ (Crown Prosecution Service 2002) <https://www.cps.gov.uk/legal-guidance/therapy-provision-therapy-vulnerable-or-intimidated-adult-witnesses> accessed 1 December 2020.
 Temkin (n 1).
 Jennifer Temkin, ‘SHaME Interview – CPS Guidance’ (4 July 2022).
 McGlynn (n 2).
 Clare McGlynn, ‘Challenging the Law on Sexual History Evidence: A Response to Dent and Paul’ (2018) 3 Criminal Law Review 216; Matt Thomason, ‘Sexual Offences: R. v Gabbai (Edward) Court of Appeal (Criminal Division): Irwin LJ, Andrews J and HH Judge Aubrey QC: 20 December 2019;  EWCA Crim 2287’  Criminal Law Review 755.
 R v Gabbai  EWCA Crim 2287.
 Suzanne McKenzie-Mohr and Michelle N Lafrance, ‘Telling Stories Without the Words: “Tightrope Talk” in Women’s Accounts of Coming to Live Well After Rape or Depression’ (2011) 21 Feminism & Psychology 49.
 R v Gabbai (n 20) .
 ibid .
 ibid .
 ibid .
 ibid .
 ibid .
 Crown Prosecution Service, ‘Guidance on Pre-Trial Therapy’ (Crown Prosecution Service 2020) <https://www.cps.gov.uk/publication/guidance-pre-trial-therapy> accessed 1 December 2020.
 Sameena Mulla and Heather Hlavka, ‘Gendered Violence and the Ethics of Social Science Research’ (2011) 17 Violence Against Women 1509, 1517.
 Lexie Bean, Written on the Body: Letters from Trans and Non-Binary Survivors of Sexual Assault and Domestic Violence (Jessica Kingsley Publishers 2018) 28.
 Haaken (n 6); Brison (n 6).