An Unforeseen Alliance: The Experience of Mental Health Professionals when Testifying in Sexual Assault Criminal Proceedings
| Author | Inbar Cohen |
| DOI | http://doi.org/10.1177/13657127221120957 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Articles |
An Unforeseen Alliance: The
Experience of Mental Health
Professionals when Testifying in
Sexual Assault Criminal Proceedings
Inbar Cohen
Criminology Institute, Faculty of Law, The Hebrew University, Jerusalem
Abstract
Introduction: Court testimonies of mental health expert witnesses (MHEWs) received schol-
arly attention regarding paradigmatic differences, and ethical issues, neglecting the testimony experi-
ence. The study examines MHEWs’testimony experience in sexual assault proceedings in Israel.
Methods:16 interviews. MHEW were recruited using chain referral sampling. Interviews were ana-
lyzed based on the constructive dialectical model. Results: Three main themes were conceptua-
lized: MHEWs’initial image of the court, their perception of mental health and legal languages,
and their perception of court conduct as a theatrical play. The themes address the experience
of tension between law and mental health along with an unprecedented experience of congruence
that emerges when: 1. MHEWs based their testimonies on evidence-based tests and therapeutic
interventions which value objectivity, as opposed to focusing primarily on the subjective experience,
accommodating the evidence-based legal debate;2.WhenMHEWsandlegalpractitionersformed
an interpersonal connection, in accordance with key relational therapeutic elements.
Keywords
behavioral science, court testimony, criminal proceedings, mental health expert witnesses,
sexual assault
Introduction
The past century has seen the growing use of mental health knowledge in criminal proceedings concerning
matters such as insanity, suggestibility, and the rehabilitative prospective of offenders (Blumenthal, 2002;
Monahan and Walker, 2011). Mental health knowledge is implemented through the use of mental health
expert witnesses (MHEWs).
Corresponding author:
Inbar Cohen, University of Maryland Baltimore, Baltimore, USA.
Email: inbar0105@gmail.com
Article
The International Journal of
Evidence & Proof
2022, Vol. 26(4) 407–425
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13657127221120957
journals.sagepub.com/home/epj
MHEWs who testify in sexual assault cases focus on professional issues relevant to a legal question.
In the case of sexual assault survivors, experts offer an evaluation of trauma exposure and PTSD, pri-
marily when addressing credibility issues (Ellison, 2005) and when assessing a personal injury (Miller,
2015). In the defendant’s case, experts mostly conduct psychiatric evaluations relevant to the insanity
defense, concerning eligibility to stand trial or criminal responsibility. In other cases, experts conduct
risk assessments of sexual offenders, primarily in sentencing or early release hearings concerning the
diversion of offenders to rehabilitative programs or the imposition of restrictions on sex offenders upon
release from incarceration (Goel et al., 2016; Goldstein et al., 2003). Mental health expert testimony is
also sometimes required in regard to a specific course of treatment, either vis-à-vis the survivor or the
offender.
Professional testimonies provided by MHEWs have received scholarly attention regarding
aspects such as the paradigmatic differences between law and mental health, the ethical dilemmas
concerning the dual role of MHEWs as evaluators and clinicians and those deriving from the need
to disclose therapy records to the court, and the ramifications of court testimony on the therapeutic
alliance; these aspects will be discussed in the following sections. There seems to be an overall
acknowledgment of the harsh and disempowering effect of the testimony experience. This concern
is addressed in numerous guidebooks, including emotional and tactical suggestions for preparing
to testify in court (Barsky, 2012; Brodsky, 2013). Aside from these guidebooks, the experience of
MHEWs testifying in court has yet to receive empirical attention. Most of the research regarding
the emotional impact of court testimony examines the experience of lay witnesses—primarily
victims and defendants. The present study examines the experience of prosecution, defense, or
court-appointed MHEWs testifying in sexual assault criminal proceedings (SACP) in Israel.
Interviews with MHEWs focus on the experience of writing an expert opinion, preparing for court
testimony, and testifying in court. The study conceptualizes three main themes: the interchange
between law and mental health related to the interviewees’image of the court, the legal and
mental health languages, and the perception of the court hearing as a game and as theater. The
study empirically validates common conceptions regarding paradigmatic conflicts between law
and mental health that make court testimony a difficult experience. Surprisingly, the study unveils
an additional and unprecedented experience of compatibility and congruence between law and
mental health, which generates a positive testimony experience. This experience emerges when
there is a mutual alignment between two key objectives in law and in mental health treatment: (1) reli-
ance on objective facts derived from evidence-based testing or therapeutic interventions, thus con-
necting subjective experience with real-life occurrences adhering to the legal fact finding process;
and (2) creating meaningful interpersonal relations between the lawyer and the MHEW, thus
echoing basic intersubjective principles that are the basis of the therapeutic bond. This alignment
provides a new understanding regarding the essential factors that promote fruitful collaboration
between lawyers and MHEWs, enabling them to overcome common reservations and difficult experi-
ences. The study contributes an interdisciplinary angle to the overall knowledge about dynamics and
emotions in the courtroom and the implementation of mental health knowledge in legal proceedings.
Literature review
The literature on the role of mental health practitioners in legal proceedings usually addresses the irre-
concilable gap between law and mental health. Some scholars underline the disciplinary and at times
epistemological conflict between the two paradigms. Others focus on ethical issues pertaining to the
conflicting roles of MHEWs who testify simultaneously as evaluators and clinicians, the disclosure of
therapy records, and the effect of the testimony on the therapeutic alliance. The experience of testify-
ing in court has received scholarly attention only when referring to victims and defendants, as noted
earlier.
408 The International Journal of Evidence & Proof 26(4)
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