Criminal Law, Civil Law and Defence (Miscellaneous Provisions) Bill 2026: Committee Stage
Seanad Éireann — 2026-06-24
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Alice-Mary Higgins (IND), National University of Ireland

All of the amendments to this section are trying to come at something we all know to be true, which is that the signal being sent on the use of counselling records in sexual offences trials will have a devastating effect, not only in terms of the retraumatisation of victims or the chilling effect, as was outlined in terms of counselling and people accessing support, but it will also have a very serious chilling effect on the law. The interests of justice get talked about at one point in this Bill, but if we apply a wider frame to it, and we put a test on it and apply it to the provision allowing for counselling notes to be accessed, I do not believe that is in the interests of justice. The issues of a fair trial and so forth have been cited but, again, the instances are low in terms of evidence being provided of situations where this is clearly affecting the outcome of a trial.
What we know, based on the statistics, is that 71% of victims of incidents of sexual violence did not report it to the Garda. There is a crisis of justice in relation to sexual violence in this State. The same statistics and survey found that 76% of the public, not just the victims, believe that victims of sexual violence are going to get a hard time in a trial. The vast majority of the public do not have confidence in the victims of violence getting fair treatment at trial. The vast majority of those who experience sexual violence are afraid to go to the guards. We have a massive crisis in justice right now in terms of how sexual violence is dealt with and how justice is meted out in society. We should not resort to saying that it is a pity, that here is how it is and that we are worried. We should be asking what more we can do. How can we improve the situation? How can we get it down to 50% of those experiencing sexual violence in the State believing that it is worth going to the guards and going through a court case and that they will not be retraumatised and dragged over the coals, which is the common perception? That is the perception of the vast majority of people in towns, villages and families. If someone experiences sexual violence, people will tell them it is not worth it. It is not just that people would be afraid to go to counselling, even though it is huge to have to choose between healing and justice. That is what is being said here. If someone knows counselling could be used against them, it damages the whole process. It may or may not be used. The Minister could say not to worry because it will very much be balanced out and there will be all of these caveats, but they are not enough. The very fact is that when they have the conversation they know, at a minimum, somebody else will see it who they do not know - those who will be determining if it is relevant. This is after a person has felt violated in that way. Regardless of whether it gets given to the person who may have attacked them and their lawyers, other strangers will read their personal trauma when making a determination on whether they want to give it to the person who may have attacked or assaulted them.
That is what is ahead of a person when they are at the door of the counselling office if they have experienced sexual violence in the State. What is ahead of them if they go through the other door – into the Garda – is the idea of trials the public do not believe will treat victims fairly. They say they believe they will get a harder time than victims of other crimes. Most people feel they will not get justice. That is the problem we have. We must find ways to build levels of trust and get our way out of that system and away from the problem. Not all, but the vast majority of victims are women. We are also talking about a whole swathe of the population who are afraid of going to the justice system for certain offences. That should be a problem we debate at length in Bill after Bill. We should try everything to build confidence in the justice system among that part of the population. Instead, stuck into a miscellaneous Bill with lots of other things we are saying "By the way, your counselling notes will now potentially be made available."
This is a backward step from a situation that was already a crisis of justice.
I want to go to some of the specific amendments here. First of all, I recognise the very detailed and excellent work that was done and put forward by colleagues in regard to amendment Nos. 16 and 17. They are people who have tried to put forward what might look like a better system with more safeguards. They have tried to do the work of delivering things like the presumptions of non-disclosure in a meaningful way and tried to put in safeguards. I recognise the work there.
Our amendments, in comparison, are somewhat simpler. In regard to amendments Nos. 18 and 19, the Minister will know the joint committee on justice spent significant time on this issue. My colleague, Senator Ruane, also sits on that committee. In its pre-legislative scrutiny it consulted the victims and survivors of sexual violence and talked to practitioners and experts. It had the consensus from survivors, practitioners and experts alike that the disclosure of counselling records in sexual offences trials has a hugely traumatic impact on victims and forces them into a qualified decision on whether to pursue justice in relation to their experience of sexual violence or to seek therapeutic support or intervention. The committee's conclusion was that a complete and unconditional ban should be inserted. I know what the Minister has said about such a ban. People have come forward and said why it is a backward step. Even if this was happening previously, the decision to allow it now, in 2026, says that we think this is something that is okay. That sends a signal to all of those who come forward, who spoke to the Oireachtas committees, who have given their testimonies, who talked about the impact of it, and who said what the effect of such disclosure, or the threat of such disclosure, has on them. It sends a negative signal to those who have come forward, not just those who went to the Garda or spoke to their counsellors but also those who walked in the door of the Oireachtas and contributed here. They were brave enough with that third bravery, to not just seek counselling and support and not just seek justice but also to seek the ear of our lawmakers and decision-makers. They did that bravely, the committee listened to them, the committee sent a very clear signal and that signal has not been heard and is not reflected in this legislation.
We propose in our amendments, Nos. 18 and 19, that the substitution of section 19A - I refer to amendment No. 18 - would prevent the disclosure of counselling records as evidence except where it is consented to by the complainant or the victim. We believe the rewording of this section achieves a better balance. It ensures the rights on the interests of the complainant and defendant. The Minister will note that the Dublin Rape Crisis Centre, which I spoke to, said the bar is quite difficult. The same bar is being applied to persons who want to speak about their own experience in counselling and those who are seeking access to that individual's private testimony from counselling. I think it is appropriate that there would be a different bar for a person when it relates to their personal data and testimony, much as we saw in relation to the mother and baby homes, where one of the things people wanted was access to their own records of their own testimony of what they said, and for that to be something that could be spoken about and be useful. There is an argument and there may be cases where a person, in relation to their own counselling records, would like to seek disclosure of those records - their testimony and experience. In those circumstances, amendment No. 18 would allow for disclosure.
Amendment No. 19, separately, relates to the disclosure hearings that the Minister proposes to introduce, which would see the court consider on application whether a complainant's counselling records should be included as evidence in sexual offences trials. Our amendment proposes the court should only allow for the inclusion of these records as evidence in a situation where there is a risk to a fair trial. Again, this is a narrowing of it. I still favour a ban on their inclusion and I will be voting accordingly. As a compromise piece, and if the Minister cannot deliver that request for a full and total ban that was put forward by the committee, or indeed the caveat of such personal information only being used with the permission of the person whose information it is, then at a minimum we believe a fairer balance is if it is only to be used in a situation where there is a risk to a fair trial. That is a higher and separate bar.
I do not think this whole provision is in the interests of justice but the "interests of justice", as it is used here, is something that could be very widely construed. Is it that, for example, a person's testimony on their sexual history is going to be attempted to be used as an ameliorating factor? Is it going to be an attempt, in terms of justice, by someone to look for lesser sentencing, to impugn character or imply ambiguity about consent? It is one thing regarding a fair trial to say there is a situation where somebody may be looking to say they believe a solid injustice is being done - there is possibly a case there - or that a fair trial is not being granted, but the interests of justice, in a wider framing, speaks to the risk of these records being used in relation to attempts to impugn the character of a complainant and to create ameliorating or compensatory circumstances around a case. That is a really worrying aspect.
Our preference would be that the Minister would listen to the committee but we have put forward what we believe are reasonable compromise proposals. I also acknowledge the very detailed and nuanced compromise proposals which have also been put forward by other members of the Opposition, all of whom, I think, are seeking to engage in good faith in addressing this issue. They are trying to ensure we do not send a piece of legislation out into the world that will compound the very real feeling of many in this State that they will not be treated fairly if they experience sexual violence.

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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