Yes. Therapy isn’t just in the best-interests of complainants; investigators and prosecutors need to recognise that it is an asset to the case. A supported complainant who has been given resources to cope with their trauma is less likely to withdraw from the criminal justice process and more likely to give compelling evidence in court.
Historically therapy has been seen as a potential threat to a case – based on concerns that ‘tampering’ by the counsellor could be seen as coaching, that false memories can be easily implanted, or that the therapist’s notes may be called as evidence which might lead to damaging material being presented in court.
As far as ‘tampering’ goes it is perfectly possible to deliver excellent therapy without discussing the details of the case. Therapy is often about life after abuse, not the abuse itself. I know one very excellent trauma specialist who has successfully worked with a client for whom she has no idea what the original abuse was.
Even when therapy does cover the abuse this still shouldn’t prevent complainants from accessing it. Being supported through a process of making sense of what happened can be the only way for some people to recover from trauma. Not only is this essential for their wellbeing but it can also mean that after therapy they are able to explain what might otherwise appear to be confusing behaviour during or after the offence. In effect, therapy may support complainants to become their own expert witnesses, giving them an opportunity to explain their behaviour to a jury in a way that helps the jury understand why they didn’t fight, delayed reporting, gave inconsistent accounts of the abuse etc.
It is rare but possible for false memories to be generated. Anyone who has experienced trauma may confuse certain aspects of events in their mind – combining different instances of abuse, getting mixed up about location and time, remembering detail that was actually from some other event. The solution to this is NOT to stop people from accessing trauma therapy. The solution is for prosecutors and investigators to deal with this through case theory, speeches, and questioning. For example, prosecutors could argue that inconsistencies are to be expected and that they are in fact evidence of trauma, which in itself can be presented as evidence of a lack of consent – people aren’t traumatised when they have consensual sex, they are only traumatised by rape. Prosecutors can also emphasise that the case does not rest on these minor elements of detail but the larger issues of consent; and that (where this is the case) therapy was accessed after an initial report so whilst it may influence the subsequent extra detail that a complainant remembers over time it cannot be responsible for fabricating the reported offence in it’s entirety.
If you are investigating or prosecuting a case, you should do whatever you can to make sure your complainant is receiving all the care that they need and deserve. It is simply not acceptable to sacrifice their wellbeing for the sake of the criminal justice system, nor is it advisable for the prospects of a successful prosecution.
As a first resource you can make sure complainants have access to ‘The courage to be me’ which uses illustrations to explain why victims of abuse often don’t fight, often feel guilty about the abuse, and why many people are affected by the abuse for a long time afterwards. Helping people to make sense of themselves can be the first step in empowering them to address their own confusion and doubt. You can read the whole book for free by clicking here. (Or better still, you can find a budget to give clients copies of the book).