Late last Thursday, Rape Crisis Network Ireland (RCNI) took the decision to notify Tusla, the Child and Family Agency, that we believed they were putting the privacy and data protection rights of survivors of sexual violence at risk.
We also told Tusla that unless they responded substantively to our concerns, we would have no choice but to notify the Data Protection Commissioner and explicitly reserved our right to apply to the High Court for whatever additional remedies were needed to protect survivor privacy rights, including injunctive relief. We didn't take this step lightly. But it is our core belief that survivors must be able to access Rape Crisis Centres (RCCs) with confidence their details – including critically sensitive personal data – will not be unlawfully disclosed.
We were engaged with Tusla from their establishment to find frameworks and systems of communication, accountability and appropriate data-sharing between the new agency and the rape crisis sector. These systems are necessary not only because RCCs and RCNI are independent bodies, but particularly because the survivors we serve are individuals with rights. Those rights are not forfeited by accessing services which receive State funding, just as doctor-patient confidentiality is not forfeited for recipients of medical card funding.
Right to privacy
Each survivor of sexual violence experiences unique harms and risks that may be physical, emotional, mental, communal, familial and/or professional. The State has a duty of care to them but critically the State itself at times presents risks to survivors – a principle acknowledged in EU law on victims’ rights.
The State must take the utmost care not to over-reach and breach their right to privacy. RCNI deems this a current and credible risk based on Tusla contracts with RCCs that explicitly require access to be given over and provided for to information held by the centres whether or not Tusla have a legislative basis for such action.
Most disturbingly of all, the State contract provides that if the consent of the survivor to any such disclosure is needed the RCC will have to obtain it or be in breach of its funding agreement. This model of “compelled consent” from survivors of sexual violence is morally repugnant, quite apart from its legal failings.
The Health Information and Quality Authority (Hiqa) has produced guidance on when and how to perform a privacy impact assessment on information-gathering projects in sensitive health or social settings. Unfortunately, Tusla seems not to have completed any such assessment, let alone, as recommended, “in the early stages of a project – ideally at the planning stage”. If there is such a privacy impact assessment, it should be published.
Fear of exposure
The State continues to be a risk to many survivors because our culture, society and justice options means that becoming “known” to the State can sometimes present unacceptable risks to their wellbeing, lives, livelihoods and relationships – and those of their loved ones. For all too many survivors being “found out’” remains a terrifying and paralysing prospect. And this situation will continue until we have transformed the whole of society in how we respond to sexual violence, gender inequality, misogyny and violence.
If you broke your arm, you would go to your nearest hospital where your needs would be met. With regards to sexual violence trauma, the first hurdle for the State is that the majority of survivors would sooner walk around for the rest of their lives with that broken arm rather than venture into the State services where sexual violence responses are publicly provided.
Without non-State, safe, specialist and holistic responses led by a survivor’s needs, many will simply go without and bear the profound impacts alone and silently. If such a situation is unacceptable for broken arms, it is unacceptable for sexual violence trauma. This is a dilemma for the State in its discharge of its duty.
The State is extremely lucky it has available to it a high-standard infrastructure of independent community-based resources and skilled specialists developed through the 40 years of the rape crisis movement in Ireland.
A RCC is a refuge in which to get support relatively safely, and where consent and privacy will be respected. For some survivors, we are their only support.
Safe harbour
But that response is fundamentally based on our capacity to provide that safe place. If the conditions attached to our funding mean we cannot make that commitment, then we are no longer available to many survivors.
The relationship between the State and the rape crisis sector only works if we have the right to say no, if that no can be heard and if the response to it is appropriate and legal. Our assertion of victims’ rights aims to have our “no” on their behalf heard and respected so that survivors continue to be able to rely on our commitment to them. That commitment is to support them while keeping them safe. And advocating for them publicly, upholding their right to unforced consent and to be treated with dignity and respect.
Clíona Saidléar is the executive director of Rape Crisis Network Ireland