Should a complainant's counselling records be used in a sexual assault trial?

The Law Report investigates a pivotal reform in Victoria that could transform how sexual assault complainants navigate the criminal justice system: the right to pre-record their evidence before trial and the protection of counselling and health records from being used by the defence without consent. Sarah Rosenberg, a survivor and executive director of With You We Can, shares her harrowing experience of having her high school counselling notes, medical records, and even phone data subpoenaed by the defence in New South Wales—information irrelevant to the alleged assault but used to paint her as mentally unstable. The judge concluded she had multiple psychiatric disorders, despite no diagnosis, and the jury had no choice but to acquit. Rosenberg argues this wasn’t about fair trial rights but about systemic abuse that forces survivors to choose between seeking help and reporting crime. Experts like Professor Julia Quilter and Hannah Webster confirm that pre-recording evidence reduces trauma, improves memory accuracy, and cuts delays—practices already standard in the Northern Territory and Queensland. Yet, despite existing legal safeguards, enforcement is inconsistent, and victims often lack legal representation during access battles. The episode reveals a national crisis: while some jurisdictions lead with progressive models, others lag, and the system continues to re-traumatize survivors.