Survey of Sexual Assaults Survivors
8. ATTEMPTS TO ACCESS PERSONAL RECORDS
Of the 64 survivors who reported their abuse to the police, 54 provided information on whether or not there had been an attempt to access their personal records.[13] As shown in Table 8.1, over a third of these women (19) responded in the affirmative. It should also be noted that close to a fifth (10) indicated that they did not know.
| REQUEST | NUMBER |
|---|---|
| No | 25 |
| Yes | 19 |
| Don’t know | 10 |
| Total | 54 |
In the 19 cases where there was an attempt to access personal records, 10 women reported that only one type of record was requested while the other 9 named more than one, for a total of 35 responses. As shown in Figure 8.1, counselling records were the most frequently sought (13), followed by medical records (9).
FIGURE 8.1 - TYPES OF RECORDS REQUESTED
Table 8.2 indicates that the records were requested by the defence in almost three-quarters (14) of the cases.
| REQUESTOR | NUMBER |
|---|---|
| Defence lawyer | 14 |
| Other | 3 |
| Police | 1 |
| Crown attorney | 1 |
| Total | 19 |
As shown by Table 8.3, women’s confidential records were released in almost three-quarters (13) of the cases in which access was sought. It should also be noted that one woman did not know whether or not her records had been released. Another did not respond to the question.
| RELEASE | NUMBER |
|---|---|
| Yes | 13 |
| No | 4 |
| Don’t know | 1 |
| Total | 18 |
Table 8.4 indicates that the women’s confidential records were released to the defence in 9 of the 13 cases in which access was granted.
| RECIPIENT | NUMBER |
|---|---|
| Defence | 9 |
| Crown attorney | 2 |
| Police | 1 |
| Other | 1 |
| Total | 13 |
Only one woman reported that the records had been used specifically for her benefit - that is, to obtain compensation. Another said that the prosecution had used her records during the trial “to tell her story”, adding that the defence had used the same records to develop questions to discredit her. In fact, most of the women said that their records had been used in this way.
Women whose records had been released to the defence reported feeling re-victimised, violated and betrayed by the justice system and sometimes by the record holder for divulging them. For instance, a woman who thought that justice personnel had taken her records in confidence felt betrayed when they were released to the defence. This feeling was enhanced when her self-represented abuser used them to discredit her in court.
Another woman reported that her self-represented abuser found her address on the police file, enabling him to intimidate her during the trial. Her experience highlights the importance of ensuring that any personal information that is disclosed to a third party does not compromise the woman’s safety.
Given their experiences, it is hardly surprising that many of the women interviewed question the legitimacy and fairness of allowing the defence – or anyone else – to access their personal records. In one woman’s words: “My own personal thoughts and feelings are not relevant to anyone else but me. They are not evidence.”
Nor is it surprising that many women feel that the system is “on the side of the accused”, to the detriment of sexual assault survivors. This perception is based on a number of observations, including the fact that their personal records can be accessed while the defendant’s cannot[14], and the fact that they can be forced to answer questions on their past behaviour while the defendant is under no obligation to testify.
- [13] In sexual assault cases, the accused may seek personal records about the complainant from third parties, i.e. therapists, doctors, employers and others, in an effort to find information to use in his defense. These records are generally not part of the evidence the crown would be relying on to prove the assault; they are held by the parties that created the records.
- [14]As a general rule, the defendant’s criminal history can only be considered at the time of sentencing.
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