‘Never heard of anything like that’: Shocking reason Aussie woman was jailed

Dianne Lucas chose to go to prison rather than betray a woman who needed her help. This is her incredible story of bravery and sacrifice.

EXCLUSIVE

Dianne Lucas knows what it’s like to go to jail.

In 1995, the veteran campaigner for the rights of sexual assault survivors was arrested and imprisoned after she refused to violate the privacy of a rape survivor by handing over the woman’s highly confidential counselling notes to the man charged with raping her.

Ms Lucas’ act of bravery as the manager of the Canberra Rape Crisis Centre sparked national protests, rallies and legal debates, which two years later culminated in the introduction of new shield laws to protect the counselling records of sexual assault complainants in NSW.

But three decades on, as accused individuals find evermore creative ways of circumventing those shield laws, news.com.au is pushing for bulletproof protections to stop alleged offenders getting their hands on the private records of their alleged victims.

Nina Funnell, the creator of the #TakeTheStand campaign, tracked down Dianne Lucas AM at her home in Canberra, where the 69-year-old author, advocate and national living legend continues to speak out about the rights of sexual assault survivors.

‘They took my shoelaces and belt’

“In 1995, I worked at the Canberra Rape Crisis Centre and was about 40 years old,” remembers Dianne Lucas AM.

“I went to a conference in Melbourne for sexual assault services. At that conference, there was a session about counselling notes being subpoenaed. We’d never heard of anything like that before.

Dianne Lucas went to jail rather than betray a client.

She refused to hand over the counselling notes.

“This phenomenon was just not an issue in Canberra, so we had never thought about how we would respond if we were subpoenaed.

“You need to remember that back then, very few women [who had experienced rape] ever reported to police [so criminal cases were rare, and notes were not subpoenaed as a result].

“We just made counselling notes and never thought too much about it.”

Ironically, when Ms Lucas returned from the Victorian conference, there was an envelope waiting for her.

“I couldn’t believe it: there was a bloody subpoena on our desk,” she said.

The subpoena had come from a NSW court as the alleged rape had happened in NSW, but the woman was from Canberra “and so was a client of our service”.

As an experienced counsellor and staunch feminist, there was no way Ms Lucas was going to comply with the subpoena and simply hand over the highly confidential notes.

She knew that doing so would not only damage the survivor’s trust in the service, it could destroy all faith in other counselling services too – after all, if a rape crisis service won’t protect your privacy, who will?

That wasn’t the only danger or principle at stake.

“For starters, other survivors wouldn’t come forward either,” Ms Lucas said, adding that once client notes are shared with [alleged] sex offenders, this can cause the wider clientele to panic and lose faith in the confidentiality of the service.

So when Ms Lucas attended the courthouse in Queanbeyan later that year, she knew she had only one option.

Ms Lucas knew she had only one option.

“We went to court and said ‘no way, we are not handing them over’.”

The refusal placed Ms Lucas in contempt of court.

“The magistrate sent me to jail. Even the police officers who had to escort me to the jail cell were stunned that he’d actually done that,” she said.

“So I ended up in jail. It was at the end of the year, and I thought ‘Oh my god, they will have me in jail for Christmas, what about the kids?’

“They took my shoelaces and my belt. The first lawyer we approached just said ‘hand it over’.

“We thought they were a feminist law firm [but they didn’t understand the significance] … so we ended up with this bloke [who did].”

From there, there was no backing down.

“The police were really supportive,” remembered Ms Lucas, adding that they allowed a friend to smuggle her a book to help her pass the time behind bars.

By then, the counselling notes in question had been moved into a secure, locked briefcase which only Ms Lucas and the rape crisis staff knew the code for.

To this day, no one else has ever seen the notes.

The incident received widespread media coverage and two years later, the first shield laws for counselling notes were introduced in NSW.

“It sparked the whole legislative change,” said Ms Lucas.

‘The aim is to smear the victim’

Three decades on, those hard-won protections are now under threat, due to increasingly creative and aggressive tactics used by accused individuals.

Dr Rachael Burgin, executive director of Rape and Sexual Assault Research and Advocacy, said it’s not uncommon for accused individuals to subpoena the counselling notes, which private therapists hand over without realising they have the right to oppose.

“The judge might then strike out the notes so the jury never sees them, but once the defence has had a read of them, the psychological damage to the survivor is done as their privacy has already been violated without their consent. You can’t unring that bell,” she said.

In one case referred to by Legal Aid NSW, a woman named Shanti* was sexually assaulted by her partner’s friend. When Shanti arrived at court, she saw the accused thumbing through a bundle of papers. She was horrified to recognise that the documents were copies of her entire counselling file.

“She became very distressed. This happened at the worst possible time, because she was about to give evidence and be cross-examined about the sexual assault,” per the report.

Another problem is that the counselling shield laws are inconsistent across Australia.

Dr Rachael Burgin is chief executive of Rape and Sexual Assault Research and Advocacy (RASARA) and a senior lecturer in Criminal Justice at Swinburne University of Technology.

This week, news.com.au published the story of Grace*, a Victorian survivor who had her counselling notes subpoenaed by a dance teacher who indecently assaulted her as a child.

“There were things in those notes I hadn’t even discussed with my fiance, like how the abuse impacts intimacy for me now,” said Grace, now aged 29.

“What you say in counselling is supposed to be sacred.

“I felt like that took away the last little piece of emotional privacy I had. It led to me not seeking further psychological treatment at a time when I really needed it,” said Grace.

A further concern with existing shield laws is that the protection is usually worded in such a way that the onus falls on the counsellor or counselling service to invoke the protection. Some services and providers may not know the protection exists (and may simply hand over the documents when subpoenaed), or they may not have the finances to engage a lawyer.

“These protections are no good if there is no lawyer to turn up on the day to enforce them,” said Dr Burgin, who is also a senior lecturer in Criminal Justice at Swinburne University of Technology.

“In counselling, people share their deepest fears, insecurities and sources of shame. It’s devastating to have that shared with anyone, let alone the person responsible for causing that harm.”

Counsellors may also hand over the notes under the misguided view that the notes will help prove the abuse. But as Dianne Lucas explains, this is rarely the case.

“The whole aim is to smear the victim. Anything, absolute anything can be used in a negative way to smear someone,” she said.

“If a woman discloses she has a mental health problem, they will use that against her. If she is using alcohol or drugs [to cope with the trauma], they will use that … It’s a fishing expedition to find out whatever they can to smear the woman.”

Dr Burgin said that ironically, the very things which might indicate a person has experienced trauma – such as nightmares, flashbacks or intrusive thoughts – can be used paradoxically on the stand to discredit the victim.

Madi Lane was devastated when her counselling notes were handed over.

“They will use those symptoms of PTSD to suggest the person has an unstable memory or difficulty discerning reality from imagination, and that the jury can’t trust them. So rather than understanding those reactions as evidence of a crime which has been committed, those PTSD symptoms are twisted and used to undermine the survivor,” she said.

This is precisely what happened to Madeline Lane, who was raped by Mosman man Boyd Kramer.

A tale of two subpoenas

In April 2020, Ms Lane was raped by Mr Kramer in his Mosman apartment. In the hours immediately following the rape, Ms Lane contacted two services: 1800 RESPECT and the NSW Rape Crisis Centre.

Both services were later subpoenaed for the counselling notes they made following Ms Lane’s contact that night.

The NSW Rape Crisis Centre protected Ms Lane’s privacy and refused to hand anything over, as per their service policy.

1800 RESPECT, by contrast, not only handed over summary information of when Ms Lane contacted and for how long, it also provided a complete transcript of the conversation Ms Lane had with the 1800 RESPECT counsellor in the moments immediately following her rape. That conversation was then read by both the rapist and his legal team.

That transcript was also then used in court to question Ms Lane’s credit, since she expressed feelings of self blame and confusion during the counselling contact.

“That’s a very private and personal conversation which you assume is going to stay confidential,” Ms Lane told Nina Funnell.

“You are so vulnerable when you’re having it. You’re not in the right frame of mind immediately following a rape. I was in a state of shock. I was just blaming myself, so when the defence got that counselling transcript, they tried to use that against me and say, well, clearly I wasn’t raped because I blamed myself.”

Ms Lane had no idea that 1800 RESPECT recorded all calls and contacts unless asked not to, and never expected the conversation would be read by anyone, let alone her offender and a courtroom full of strangers.

Dr Burgin said it’s alarming that while Ms Lucas was willing to go to jail to protect a survivor’s counselling notes, 1800 RESPECT simply handed them over, without contacting Ms Lane to seek her view or inform her of its intention to comply with the subpoena.

Worse still is the fact that legally, the organisation was never obliged to provide the notes, and could have simply ignored the subpoena as the NSW Rape Crisis Centre did, without punishment.

In 2021, over 286,000 contacts were made to 1800 RESPECT, which is a government-funded service run by Telstra Health.

Grace, pictured with court support dog Lucy. Picture: Nicki Connolly/news.com.au

The privacy statement contains a warning that notes can be subpoenaed, but that warning is buried more than 1400 words deep into the privacy document.

“No one in shock or crisis can be expected to go wading through policies before they call a service,” said Dr Burgin.

The 1800 RESPECT website also states that the service will take “reasonable steps to contact you if we receive a subpoena requiring disclosure of your personal information”, but Ms Lane said this did not occur in her instance.

1800 RESPECT was contacted for comment.

Dr Burgin said that cases like that of Shanti, Grace and Madeline demonstrate why we need blanket shield laws for counselling notes.

“If Australia’s largest, most well known, government-funded sexual assault counselling service cannot be trusted to properly protect client notes, why would we expect that private practitioners working out of home offices would be able to muster the resources to?” she said.

“The answer has to be tighter legislation.”

Ms Lucas – and the survivors quoted in this piece – all agree that we need blanket shield laws similar to the privilege between a client and their lawyer.

“Some survivors are even delaying getting counselling til after the trial is over,” said Ms Lucas, adding that this means that survivors might be without any support for two or three years, given the standard length of proceedings.

“Services used to be run by strong feminists … but I don’t know if that is necessarily the case anymore and if someone doesn’t have those politics, they just hand over the counselling notes.

“A lot of us have a lot of grief about that and questions about how do you continue a culture when there is this shift away from that strong ideology.

“I’d go to jail again in an instant.

“It’s that simple, it’s about the principle.”

*a pseudonym

Nina Funnell is a Walkley Award winning journalist and the creator of the #Justice Shouldn’t Hurt: Take the Stand campaign. To support the campaign visit here

Originally published as ‘Never heard of anything like that’: Shocking reason Aussie woman was jailed