The following account was sent to me by a woman who was repeatedly raped on a weekly basis by a psychotherapist of whom she was a client. Following her abuse, it transpired that all of his qualifications were bogus. Her account gives a vivid description of the effect the criminal justice system has on survivors of rape. It was originally written in 2002, and I don’t know enough about the topic to know how it compares to the experiences of victims in more recent cases. I suspect the difference is not much.
Copyright of this article remains with the author, who is entitled to remain anonymous.
This is my personal anonymous account as someone who has been closely involved as a victim in a criminal rape case within England & Wales. On legal advice, all specific case details have been omitted. However it gives one person’s view of the workings of the police, criminal justice system and related bodies involved in the prosecution of crime. I found the whole experience stressful and rather puzzling.
My experiences stem from a period of time of abuse some years ago – as an adult – the abuser being someone I held in a position of trust and who had access to many vulnerable patients/clients. I was suffering from clinical depression when I first had any contact with this individual and he encouraged me to become totally dependant on him. I was trapped in an abusive relationship with him for several years.
When I finally got away from him, I reported my experiences to about six mental health professionals over an eight year period. Not one of them took the repeated rapes seriously enough to even refer me to a Sexual Assault Referral Centre (SARC) or to suggest that I should have tests for sexually transmitted diseases/HIV. Finally, after eight years, a friend told me about a SARC and with some help, I was able to go there and talk to a counsellor. She totally believed my experience of repeated rape and offered to call the police. I was then able to tell the police what had happened in the safety of the counselling suite with the counsellor still present. This feeling of safety was so important – I could not imagine walking into a police station and reporting what had happened over the counter.
Investigations into my allegations were started and then stopped after a few months. However the allegations were re-investigated because of further information. During the first investigation, there was not much contact from the police and I did not know what was happening with the investigation. During the second investigation, the detectives were much more forthcoming. The officers phoned me immediately after they had arrested the man and came to see me the next day. They also mentioned another possible victim, however the woman declined to make a statement because she found it too upsetting.
The police contacted Victim Support on my behalf. Victim Support is a charity set up to help victims of crime. I found Victim Support’s response was rather baffling. They deliberately allocated me to a lady who, although very well meaning, had no experience of working with someone who had been raped. When I asked why this had been done, I was told that it was to prevent any contamination of my evidence. This seems to be bit of a contradiction – how can they support victims of crime if they are constantly looking over their shoulder and worrying about contaminating the evidence? I certainly felt quite frustrated at times as a result of this decision. The lady from Victim Support also told me that she could not attend the Trial in case I happened to glance towards her and the defence could argue that she was coaching me. This does seem a very strange form of victim support. Instead, I was told, a complete stranger from the Witness Service could be in court if I wanted some support on the day.
Shortly after the man was arrested and charged, the police needed to interview me again to get as much detail as possible about the assaults. This meant an initial interview of 5 hours with just a 20- minute lunch break, followed the next day by a further couple of hours. This was incredibly traumatic. For many years I had tried to forget the detail of the prolonged period of abuse, yet now I was being asked to remember it in a claustrophobic interview room in a police station with yet another police officer (again, to prevent contamination of my evidence). By now, I was on medication to help depression and I was also told that I was suffering from post traumatic stress disorder (PTSD). I had no one to talk to at home as I live alone and I found the interviews were unbelievably stressful and intense.
Immediately after giving this additional statement I was experiencing many more flashbacks than normal; I was hardly sleeping; I was very tearful and totally lacking in confidence. 4 Having to give this statement had a profound, long lasting effect as well – once having opened these dark memories, it was now impossible to forget them whilst the case was ongoing. I doubt if I shall ever forget them now and this is something that I will have to live with. It is not helpful when the volunteer from Victim Support keeps saying brightly, “Well at least you can get on with your life once the trial is over…”. Does she really think that some magic switch is thrown the day after the trial and all these memories will disappear?
About a week after I had gone through these interviews, the officers came to bring the additional statement for me to read and sign. I found that as I went through the statement, I got upset and started shaking when I reached certain points. The police were in a hurry that day and I felt under a certain amount of pressure to just sign it and let them go. I automatically assumed that I would be given a copy, but I was told that I would not see it again until the Trial. This came as a surprise because I had been given a copy of my first statement (from the first aborted investigation) and I was aware that the defendant was allowed to have a copy of his taped interview. He also had access to my medical records, my statements and any reports prepared by the expert witnesses. It felt as if my rights were being trampled on in favour of the defendant’s.
This was the first of several occasions when I felt that things were unfairly biased in favour of the defendant. It seems to me that the victim does not have any rights in the eyes of the criminal justice system and it makes me wonder if this is why people are reluctant to get involved in criminal cases. Maybe the other abused woman the police found but who refused to become involved in the case had got it right – I probably had a rather naïve trust in the system.
Then came all the adjournments at magistrates court. When the defendant first went to court, he had certain bail conditions imposed on him. I believe that four applications were made to have these conditions revoked, but he was not successful. The Committal Hearing at the magistrates court was adjourned three times. When a court sets a date, you assume that it is set in stone. I was not expecting all these delays and it certainly added to the stress levels. I got really distraught every time I was told of another delay and thought of dropping the case because of the frustration. This, no doubt, is what the defence hoped would happen. I had been told that I may need to attend the Committal Hearing, but fortunately this was not necessary.
When the case was finally committed to the Crown Court, the local paper ran a small article about it. Even that hurt a bit because they made the defendant sound so respectable.
Crown Court Adjournments
Once he was committed to trial at the Crown Court, I assumed that things would run more smoothly. The next significant stage 6 for me was the Pre-Trial Hearing where the Crown Prosecution Service (CPS) would be arguing that I should be entitled to have a screen whilst I was giving evidence. The trial date was set for about six months after the committal hearing and the pre-trial hearing was set for the month before. The screens were an important issue to me – I did not want to be exposed to any direct eye contact from him in the court setting. I was warned, though, that it was unusual for the use of screens to be allowed.
About ten days before the trial was due to take place, the police took me to the Crown Court and I was introduced to the person in charge of running the Witness Service at that court. She showed me in to see both a modern courtroom and the older style of courtroom. She told me where the various people would be sitting and allowed me to stand in both types of witness box, showing me how I could position myself to try and avoid having to look at the public gallery or the defendant if the screens were not granted. The modern courtroom felt very claustrophobic and I hoped that the trial would take place in the more spacious, older style courtroom.
The pre-trial hearing was cancelled on the day that it should have taken place. Another date was arranged, but this too was cancelled at the last minute. As was the third attempt. It was eventually re-arranged for the morning of the trial – even that failed to take place and it eventually took place on the afternoon of what should have been the first day of the trial. This was incredibly nerve wracking as the police had collected me early morning on the assumption that the trial would start that day.
I was eventually told that the request for screens had been granted and that the trial should start the next day. I was collected again the next morning and I was told that the jury would be sworn in, then the prosecution barrister would give her opening speech and that I would be the first witness to be called.
Sure enough, just before midday, I was called to go to the courtroom to give evidence. I had been kept in a separate area with the Witness Service so that I would not bump into the defendant beforehand, and the volunteer from the Witness Service took me up to a side room to wait to give evidence. To my horror, just as I was about to be taken into the court, I saw the barrister and police officers come out of the court. I was taken back down to the witness area and after about an hour the crown prosecution service (CPS) clerk and police came to tell me that the defence barrister had objected to part of the prosecution opening speech and the judge had dismissed the jury.
I was told that the trial would start again after lunch. More interminable waiting around. Then a couple of hours later, further bad news. The defence had asked for an adjournment so that they could get another expert report and the judge had granted this. I was told that the trial should take place in a few weeks time, but the new date was finally rearranged some 6 months later.
This was incredibly hard to cope with – I had really got myself mentally prepared for the trial to go ahead and nothing had prepared me for the possibility that it could all fall apart at the last minute like this.
At the next pre-trial hearing months later, the defence revealed that the defendant was ill and may not be fit to stand trial at the new trial date. The judge ordered another pre-trial hearing for three weeks later and at this hearing, it was revealed that he had actually had a major operation; so another date was set for 4 months after this.
Then, a few weeks before that trial date there were indications that more delays would occur. The defence suggested that the defendant would never be fit for trial because of his illness. However, when the judge asked for supporting evidence, they were not able to produce any. Then, at a pre-trial hearing on the day the trial had been scheduled to start (the 3rd trial date), the defence said that he was too ill to attend. The judge had to allow the adjournment but told the defence that they should arrange for the defendant to see a specialist privately – to be paid for by legal aid. Another new trial date was set for 6 months later.
The adjournments were extremely stressful – especially when I was in the Crown Court for two days waiting to give my evidence. I am a rather shy and quiet person and the prospect of having to stand up in court and explain what this man had done to me was terrifying. The adjournments also caused more anxiety because I was worrying about whether it would be the same judge and barrister next time around. It felt important that the same people should carry on with the case because they are familiar with the case and the papers. Logically I suppose that it should not make a difference, but when you have so much invested in a case continuity seems important.
My GP has been incredibly supportive, allowing me to go and see her whenever I needed to and she also helped me to access some psychotherapy. However, this is time limited because of NHS restrictions and there was quite a long wait to obtain it. Surprisingly, the police encouraged me to pursue the psychotherapy because they recognised my need to have someone to talk to and support me through the court process. So why didn’t they panic about contamination of evidence? I suspect that it was because they rather naively thought that psychotherapy was a form of support for me. It was actually rather painful and hard work undergoing the therapy, but whenever I said that I wished for more support, the police officer would turn round and comment that I was seeing a therapist regularly and that I was actually getting far more support than most sexual assault victims as a result. Not much consolation.
I had been under the impression that if a person had a medical report prepared about them, they were entitled to see the contents. I asked to see the report about my medical condition and the CPS refused to let me know what was in the report. Furthermore, one of the detectives told me that the defence had prepared a psychiatric report on me without even talking to me. Again, I was not allowed to know what the report said. Why? What are a victim’s rights in this situation?
I did not realise that the criminal case was not my case. It was the Crown’s case because rape, like other criminal charges, is a crime against the Crown. Whilst the victim is a very important witness – the victim is exactly that – a witness. The prosecuting solicitor and barrister were not my representatives but represented the interests of the Crown. Should a conflict arise, the interests of the Crown come before the interests of the victim. The victim has no rights in the decision making process and this can be very disempowering.
At the beginning of the second investigation, the officers were really good at keeping me up to date with developments. They were constantly reassuring me and seemed to actively try and build up my self-confidence. I had total confidence in their ability to thoroughly investigate the case and to prepare the case papers accordingly. However, once the investigation phase was completed, the contact with the officers became much less frequent. One of the officers was posted to another job, so my contact was restricted to the remaining officer whose workload was prohibitively high. I was not allowed to speak to the CPS solicitor or the barrister and so any queries had to go through my only contact with the justice system – the one remaining detective.
The issue of disclosure was never explained to me. As I had tried to understand how I had come to be abused, I had made contact with other victims and had obtained a few articles from all over the world on similar types of abuse. I gave these quite openly to the police, not realising that they would then promptly be disclosed to the defence. I also had not appreciated that signing a form agreeing that my medical records should be released to the police would also effectively release them to the defence.
When it came to the practicalities surrounding the trial, the police were very helpful. They drove me to and from the court and even arranged for me to get into the building through a side door so that there was no chance that I would encounter the defendant or the media.
It was the day-to-day communication that caused the problems. I live on my own with no close family nearby to share my worries and concerns with. I soon discovered that “friends” could disappear into the woodwork when something major comes along and so I quickly learnt that it was easier to keep these problems to myself. As I said earlier, my GP and the rest of the practice staff were incredibly supportive of me but they also were not able to help with any questions about the legal procedure.
So the only person I could ask was the remaining police officer. He was obviously not a lawyer and so any legal questions could take several days or weeks to be answered since it depended on when he was able to contact the CPS caseworker. Then he got a new job that took him out of the local area and meant that he was not easily contactable. This then became very frustrating – especially as each new trial date approached and I would need lots of reassurance to keep me going.
I did come very close to withdrawing on a couple of occasions and instead of getting some encouragement I found that the opposite was true. The first time, I asked Victim Support if there could be any comeback on me if I withdrew my statement. They told me that the police could come and arrest me and that I could be charged with wasting police time. Needless to say, this completely panicked me. I phoned the detective to ask if this was true and he told me that they would never do that in a case of rape or sexual assault. It took him quite a while to calm me down and to persuade me that I should continue. The second occasion was a few weeks before the third trial date was due. I told the officer that my self-confidence was very low and I wasn’t sure if I could go through with the trial. He told me that if I did not see it through, then there was nothing to stop the defendant from taking civil action against me for loss of income and defamation of character and that I would also still have to go to court to explain myself to the judge. This just made me feel that I was being bullied into something and I felt really resentful. It would have been much more useful on both occasions if someone could have just spent some time talking to me and helping me to recover some confidence.
One effect of being abused by a “professional” person who was in a position of trust was that I found it almost impossible to trust other individuals – no matter what their profession was. This probably made me question decisions about the prosecution more than I normally would have done, but to me, they were perfectly justified doubts and I really could have done with a bit of reassurance.
When the fourth Crown Court date came round, I was very apprehensive. Not knowing if it would finally go ahead or not. When the police got me to court on the Monday morning, they told me that the defence had in fact tried for an adjournment the previous Friday, but the judge had not allowed it.
The morning dragged by because the judge had to hear bail applications and deal with administrative matters. I did briefly meet the prosecution barrister, but she was not allowed to speak to me about the case, so we just shook hands. Then, after lunch, the jury was sworn in and the case finally began with the prosecution’s opening speech. I was kept in a separate witness area all this time so that I would not have to see the defendant. I was lucky enough to have a friend with me but still felt incredibly edgy and nervous about things. I was convinced that my mind would go blank or that I would break down and make a fool of myself.
I was finally called at about 14.45hrs and the Witness Service volunteer escorted me up from the basement of the Crown Court and into a side room where we waited for the usher to come and collect me. This only took about five minutes and then I was walked along the corridor and into the courtroom. The detective sergeant in charge of the case was waiting outside the courtroom and he winked at me and gave me the “thumbs up” signal as I passed him.
To my relief, the courtroom turned out to be one of the old style ones with a high ceiling and plenty of space. My friend was not allowed into the courtroom with me and had to go and join her husband in the public gallery. The detective sergeant was not even allowed into the public gallery because he was due to give his evidence at the end of the prosecution case and he was not allowed into court before that. The psychiatrists who were the expert witnesses for both the prosecution and defence were, however, allowed to hear me giving evidence. The judge had thought that they might find it useful.
The Witness Box
The judge was very kind to me when I went into the witness box and told me that I could take a break whenever I needed one. He was raised above me on the left hand side, the jury were directly opposite me and the barristers were opposite the judge’s bench. The public gallery was behind the barristers and seemed to rise steeply up into the ceiling. What did surprise me was that the screen was not placed around the witness box (which could have been a bit claustrophobic) but instead was placed in the dock immediately in front of the defendant.
The prosecution barrister was immediately to my right and she just quickly went through the main points of my statement. The hardest part was trying to remember to address the jury in front of me and not to answer her directly. She only questioned me for about twenty minutes, then it was the turn of the defence barrister and the cross-examination began. This was very tiring mentally because the barrister would seem to ask the same question in about four different ways. Then if she didn’t believe what I’d said, she would say something like “Oh, come along now, Miss X.” as if to indicate that what I was saying was complete fantasy and totally unbelievable. I felt incredibly vulnerable. This went on for an hour and then the judge intervened and said that as it was now 16.15hrs, he intended to adjourn the court until the next day. I was relieved because I was beginning to feel quite tired.
I didn’t sleep much that night because I was re-running the questions in my mind and wondering if I had answered them all right. The next morning, I bought my daily newspaper and was surprised to read that the defendant was now charged with fewer counts of rape and indecent assault than what I had been originally been told. No one had bothered to mention this to me and it felt very hurtful to find out through a press report. It immediately planted the suspicion that this case was not being viewed as seriously as I had been led to believe, although I was later told that it had been done to simplify matters for the jury.
The detectives again collected both my friend and myself. The sergeant said that the Crown Prosecution Service had told him that I had been fine in the Witness Box the previous day. I told him that I felt tired and nervous so he tried to reassure me by saying that it should all be over very soon. If only that were to be true!
I arrived back in the Witness Support area on Tuesday morning to discover that I had a new volunteer because the lady from the previous day was not working on the Tuesday. This new volunteer I’m sure was well meaning, but she seemed to think that it was her job to take my mind off things by chattering incessantly about her recent holiday and her grandchildren. Inside my head, I was screaming “SHUT UP” until in the end I had to say something to her. I was very restrained and simply asked her if she would mind if we sat in silence whilst we were waiting. Luckily she agreed and things passed peacefully until 09.50hrs when I was called up to the courtroom again.
It did occur to me that it was rather ironic that the victim was being kept confined in a basement but the defendant was free to roam the building as he pleased.
I was back in the witness box at 10.00hrs and the cross examination continued – until 13.15hrs. It was a real marathon and utterly exhausting. I only had one short break and that was when the defence barrister warned me that she was going to ask some questions of a personal and embarrassing nature. That immediately increased my feelings of anxiety and I remember glancing at the judge. He noticed and asked if I would like a break. I was taken out of the courtroom and into a side room where I broke down into tears. The Witness Service volunteer went to get me some water and the court usher provided tissues. After about 15 minutes, I was asked if I felt able to go back into court. The judge must have been told that I had got upset and he asked the court usher to stay near me with some more water and tissues to hand.
The personal questions revolved around my previous sexual history. I basically hadn’t had one being a virgin. It was like trying to explain something to a brick wall. She did not want to hear the answer. I was also very conscious of the advice I had been given before the trial to simply answer the questions and not to get drawn into a discussion. I think that on the whole I managed to keep to this advice and it was good advice when the barrister would ask the same question in several different ways. I just gave the same, concise answer to each version of the question.
The questioning seemed never ending and I felt increasingly exhausted as the hours slid by. As well as the different ways of asking the same question, she was still implying total disbelief at many of my answers. It was very undermining. As was the fact that I had to stand up in a courtroom and talk about what this man had done to me sexually. These were details that I had not even discussed with my closest friends.
The judge then drew everyone’s attention to the fact that it was 13.00hrs and he asked the defence barrister how much longer she envisaged the questioning would carry on for. She estimated that it would be about 10 minutes. So he turned to me and asked if I would like to break for lunch or continue. I wanted to get it over with and I also thought that a break would enable the barrister to come up with even more questions, so I asked if we could continue. She finished her questioning after 10 minutes and then the prosecution barrister stood up again and asked me a couple of final questions. Finally, I was released from the witness box and taken back downstairs to the basement.
The relief that my part in the trial was over was tremendous, but I felt totally drained of energy.
The police took me home after lunch – and within 5 minutes of being home, there was a knock at my door and a reporter was there. An hour later, another one turned up. I sent them both away, but I was concerned at how they had found me because only my name had been given in court, not my address and there was a police press officer at court anyway to deal with press enquiries. I phoned the sergeant to tell him of the press interest and he said that they would have tracked me down through the electoral roll. He said to refer any further enquiries to him. Luckily, there were no more.
The next day I spent worrying about how the trial was going, then in the late afternoon, the sergeant telephoned me and said that I would have to back to court the next day to answer one more question. He was not allowed to tell me what the question was and so I spent another sleepless night – it was quite a blow because I had thought that my involvement was over. I could not imagine what the question was going to be.
They collected me the next morning (Thursday) and we got to court for about 0915hrs. I was taken back into the basement and found myself with yet another volunteer from the Witness Service. The phone call eventually came through to ask me to go up to the Court and so the volunteer walked me up. But instead of placing me in a side room, she walked me straight up to the court entrance where, to my complete horror, the defendant was sitting on a chair outside the entrance. After all the care with the screen in court, suddenly I was confronted with him. As soon as we got into the court, it was apparent that things were still not ready and the judge was not even there yet. I told the volunteer that the defendant was sat in the corridor and someone was despatched to move him. Then I was taken out into a side room until the court was ready. It had really shaken me to see him like that and I felt very distressed.
I then went into court for about 15 minutes while the defence barrister asked me the question. I didn’t give her the answer that she wanted to hear so the question was asked again and again and she virtually called me a liar. Unfortunately, for legal reasons, I can’t explain what the question was but it was a very simple question which I was able to answer with just one word. Then it was over again.
The defence then opened their case which took the rest of Thursday and until lunchtime on Friday. Then after lunch on the Friday, both the prosecution and defence gave their closing speeches. I believe that the defence wanted to give their speech on the Monday morning, but the judge did not allow this. The weekend was unbearable and the only way that I could rest was to take several sleeping tablets and keep knocking myself out.
On the Monday morning, the judge summed up the case and the jury were sent out to consider their verdict. I was told that his summing up was quite even handed.
The sergeant phoned me from court as soon as the jury went out to consider their verdict and so there was then more waiting and anticipation. I had been dreading this moment since I first went to the police – I didn’t know how I would cope if it was a “Not Guilty” verdict after all that I had been through. After about three hours, the phone rang again. I could tell from the sergeant’s voice that he was disappointed and, sure enough, he reported that it was a Not Guilty verdict. I did not know what to say to him – I felt utterly devastated and was very tearful. I suppose that logically, I should have been expecting the verdict because recent figures from the Home Office show that the conviction rate for rape cases is only 5.8% in England and Wales. But I had a rather naïve trust in the 22 Criminal Justice System and had believed that if I told the truth, he would be convicted.
I will never know the reason why the jury did not convict him – even the police or the Crown Prosecution Service cannot interview jurors after a verdict. Experts who were at the trial and others I have consulted have suggested a number of factors:
– the very low conviction rate for rape in England and Wales (5.8%)
– the very high standard of proof which gives the accused every benefit of the doubt
– a strong tendency for juries to treat victims or witnesses with mental health problems as “unreliable”
– the possibility that more effective expert testimony would have made a difference
– even in countries where the conviction rate in this sort of situation is much higher, special laws have been passed because it is hard to prosecute a professional for such conduct. For example, more than a third of states in the USA have such laws in place. These laws can help convince a jury that any sexual contact is a matter of submission rather than consent. Even being aware of these possible reasons did not make the verdict any easier to handle – if anything, these reasons made it even more frustrating. Why are rape convictions so low? What difference should it make if I suffer from depression? These thoughts made me feel angry about the criminal justice system and angry towards the defendant.
After the verdict had sunk in, I felt totally distraught. I was exhausted all the time yet only managed to sleep for about three hours at night and the flashbacks and nightmares increased in both intensity and frequency. I had no motivation to carry out even basic household tasks – I would sometimes not even have the energy to open my post for several days. I also became reluctant to leave the house. At the time of writing this, over a year since the trial, many of these symptoms are still present. There are times when I get so depressed that I have difficulty in getting through one day and into the next. It is hard to see any kind of future and I feel badly let down by the system which I thought was there to protect victims of crime.
Having said that, I do not regret pursuing the case because the police seemed so positive that we had a strong case and I would always have wondered “what if…?” if I had not gone through with it. After the publicity of the trial, my GP became aware of another two possible victims but sadly they felt unable to make formal statements. Having been through the system myself, I can’t say that I blame them – but should the justice system be such an ordeal that victims are put off reporting crimes?
Why is there the ban on dealing with anyone from the Crown Prosecution Service? Why can’t you speak to the solicitor handling your case or the barrister who will be representing you in court? The defendant has full access to his legal team, but not the victim. Again, in the USA, victims of rape liaise with representatives of the District Attorney’s office and the conviction rate is much higher. What can our government do to reverse the trend of falling conviction rates? In 1977, the conviction rate was 33%, in 1999 it had dropped to 7.5% and now it is only 5.8%.
I was very fortunate in that my National Health Service psychotherapist was able to extend my therapy for an additional six months to try and work through the issues of the trial and the verdict. However, he said that the trial had effectively retraumatized me and that in an ideal world I should receive a longer period of psychotherapy. The NHS resources were not available to allow this to happen.
I decided to write to the Crown Prosecution Service and ask them why the case had failed. I had not had any direct contact with them throughout the investigation and the trial period but I did not see why they could not answer some questions now the case was over. They surprised me by writing a four-page letter in response. They reassured me that I had not done anything wrong in giving my evidence saying that my demeanour was beyond reproach and that I had dealt with the cross-examination with a quiet dignity.
It is to be hoped that this sort of case will be easier to prosecute in the future under the proposed changes to sexual offences legislation. If the changes go through there will be a new offence of a “breach of a relationship of care” which will make it a specific offence for anyone in a position of trust to rape or sexually assault a vulnerable person in their care. Consent will not be an issue.
The legislation referred to in the final paragraph above is Section 38 of the Sexual Offences Act 2003.
38 Care workers: sexual activity with a person with a mental disorder
(1)A person (A) commits an offence if—
(a)he intentionally touches another person (B),
(b)the touching is sexual,
(c)B has a mental disorder,
(d)A knows or could reasonably be expected to know that B has a mental disorder, and
(e)A is involved in B’s care in a way that falls within section 42.
I only know of one case in which a psychotherapist has been prosecuted under Section 38. The police and CPS made a complete pig’s breakfast of the case, and the defendant was acquitted.