Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Bill 2026: Committee Stage
Seanad Éireann — 2026-06-24
============================================================

Frances Black (IND), Industrial and Commercial Panel

I will speak to amendment No. 18, which is the amendment I feel most strongly about. We are proposing full and absolute protection for counselling records, in particular in sexual offence cases. It is not partial protection; it is not a high bar. It is an absolute protection with one exception only, namely, where a complainant freely and voluntarily chooses to disclose their own records. That is the clear and simple principle at the heart of the amendment. I will take some time to explain why we believe this matters so much.
When someone who has survived sexual violence walks through the door of a counsellor's or therapist's office, they are taking one of the most courageous steps of their life. They are asking for help. They are beginning to try to heal. At that moment of extraordinary vulnerability, they must be able to speak freely, honestly and without fear. They must be able to trust that what they say in that room will stay in that room, and they should never have to wonder whether the words they speak there could one day be handed to the person who harmed them. They should never have to sit across from a barrister in a courtroom while their most private thoughts, their most painful disclosures, their most fragile moments of healing are read aloud and used to undermine their credibility. That is what is happening. That is what we are here today to try to prevent.
It is important that the House understands that this is not the first time we have tried to address this problem. In 2017, legislation was introduced to create a formal process whereby the defence in a case would have to apply to a judge before counselling records could be disclosed. The intention was sound but the result was not. Dr. Susan Leahy of the University of Limerick, one of Ireland's leading experts in this area, has written clearly that while the 2017 legislation offered the potential to safeguard against unnecessary disclosure, it has failed to achieve this in practice. She found that complainants often consent to disclosure at a very early stage before they fully understand how their notes might be used to challenge their evidence at trial. Some waive their right to the formal process simply to avoid delays they fear will harm their case. The result is that counselling notes continue to feature regularly as evidence in sexual offence trials. The 2017 reform did not work. We cannot make the same mistake again.
I want to speak about Ms Hazel Behan, a survivor from Mullingar. Ms Behan has campaigned on this issue with extraordinary courage with her advocacy group, Éist - Saying No To Silence. She stood outside Leinster House last September and said the following words, which I want to be on the record of the House, "What happens in a therapy room with me and my therapist is none of your business - and it's certainly none, none of the business of the person who I believe harmed me." Ms Behan, prior to addressing the Oireachtas Committee on Justice, Home Affairs and Migration on that occasion, told reporters that survivors had been silenced for too long. She described the use of counselling notes in court as horrendously traumatising, something that degrades and disputes everything that a victim survivor is saying in court. She also said that the current system allows defendants to sit and consider the damage they have caused their victim. Hazel is not alone. Solicitor and survivor Sarah Grace, speaking at the launch of the Dublin Rape Crisis Centre's annual report in 2023, called the use of counselling notes in court a second violation. These are not abstract descriptions. They are the lived experiences of real people who came forward, sought help and tried to pursue justice but who found that the system used their healing against them.
The harm does not stop with those who have already gone through the courts. The damage reaches back much further to the moment a survivor first considers whether to seek help at all. Counsellor Barbara Kelly, who spoke at the protest outside Leinster House last September, said it is devastating when she has to explain to her clients that their notes may be used in court. She said some people seeking therapy are having to choose between getting justice and healing. That is an unbearable choice. No person who has been through what those survivors have been through should ever be placed in that position. The Dublin Rape Crisis Centre has documented that therapists now report that victims are reluctant to seek counselling after suffering sexual violence due to fears that their records could be used against them in court. If we think about what that means in practice, we can see that people who need help are just not getting it. The wounds that could begin to heal are left open. In some cases, survivors who might otherwise have reported matters are staying silent because they cannot face the prospect of their therapy being weaponised. We know from CSO figures that 30% of victims of sexual offences in Ireland in 2024 reported incidents that occurred more than ten years earlier. The disclosure gap is real and vast. Between 70% and 80% of sexual offences reported to the police between 2018 and 2023 remain uninvestigated. We are losing cases before they begin. We cannot afford a system that adds another barrier between a survivor and the courage it takes to come forward.
The Minister stated that said he wants to restrict the use of counselling notes as far as possible. He cited advice from the Attorney General to the effect that a complete ban would be unconstitutional on the basis of an accused person's right to a fair trial. However, the Attorney General's advice is not the final word on what is constitutionally permissible. It is an opinion. It is an opinion that other senior counsel have challenged. The Dublin Rape Crisis Centre sought its own legal advice from a senior counsel and was told that a blanket ban would face constitutional challenge. However, advocacy organisations and others have questioned whether third-hand notes from counselling sessions that are interpretive, subjective and inherently indirect could ever reach the threshold of exculpatory evidence, meaning evidence that genuinely benefits the defence. Section 16 creates a presumption of non-disclosure. That is a step forward. However, a presumption is not a prohibition. It still allows for applications to the court. It still requires complainants to engage with the legal process at one of the most difficult moments of their lives. It still subjects them to the prospect, however unlikely, that their most private records may be produced and examined. Our amendment would close that door completely.
I remind the House of what the Oireachtas Committee on Justice, Home Affairs and Migration recommended after hearing all the evidence on this issue, including that of Ms Hazel Behan, namely, a complete and unconditional ban on the use of counselling records in sexual offence trials. It did not recommend a presumption or a high bar; it recommended an unconditional ban. The Cathaoirleach of the committee, Deputy Matt Carthy, said that Ms Behan's evidence had a significant impact on every member of the committee. That is this Oireachtas speaking. That is pre-legislative scrutiny doing its job. Yet, the Government has not followed that recommendation. Our amendment follows it. We are asking the House to honour what one of the committees of the Oireachtas has said.
A further point that is often overlooked in the debate is that counselling records are not factual in nature. They are not transcripts. They are interpretive documents written by a third party and reflecting their observations and understanding of what a client has expressed. They may be incomplete. They may reflect the language and framework of the counsellor rather than the exact words of the survivor. They may record early disclosure, accounts that were incomplete or confused because that is the nature of trauma. That is how trauma memory works. To use such records to challenge a survivor's credibility in a criminal trial is fundamentally to misunderstand both the nature of trauma and the nature of counselling. It is to take the most human and the most healing part of a survivor's journey and turn it into a weapon. That is not justice; it is continuation of harm.
I have spent many years working through the RISE Foundation with people who are finding the courage to ask for help. I know what that first step costs. I know how fragile that moment is and that for many people, the decision to walk through the door of a counsellor or a support service is probably the bravest thing they have ever done in their lives. If there is any reason at all to fear that what happens in that room could be used against them, many will not take that step. We owe it to those people to remove that fear entirely - not to reduce it or manage it but to remove it. I am asking the House to go further than the Government has gone.
I am asking us to say clearly and without qualification that counselling is safe; that the room is safe; that what a survivor says to their therapist in their most vulnerable moment belongs to them alone and to nobody else; that the person who harms them will never have access to it; and that the court will never compel its disclosure. Full stop. This amendment is not radical. It is the right thing to do. It is what survivors have asked for. It is what the Oireachtas justice committee recommended and it is what the evidence demands.

---

Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted.

Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-06-24/debate/main
Retrieved: 2026-08-14T04:55:06+00:00
Sitting date: 2026-06-24