The Use and Abuse of Psychiatric Evidence in Rape Trials
| Date | 01 January 2009 |
| DOI | 10.1350/ijep.2009.13.1.309 |
| Published date | 01 January 2009 |
| Subject Matter | Article |
USE AND ABUSE OF PSCHIATRIC EVIDENCE IN RAPE TRIALS
The use and abuse of
psychiatric evidence in
rape trials
By Louise Ellison*
School of Law, University of Leeds
Abstract This article examines how psychiatric evidence can be misused in rape
trials and argues in favour of more stringent limits on cross-examination to
protect rape complainants from improper attacks on their credibility.
Keywords Cross-examination; Mental illness; Witnesses; Sexual assault
ommentators discussing the cross-examination of rape complainants
have tended to focus on sexual history evidence and, to a lesser
extent, the use of character evidence more generally. The defence use
of psychiatric evidence to discredit rape testimony has, in contrast, received
scant attention to date even though it has been observed that defence
lawyers commonly seek access to complainants’ medical records for this
purpose.1This is perhaps unsurprising when one considers the limited
attention paid generally to the use of psychiatric evidence to impugn witness
credibility in criminal proceedings. Few academic commentators have
addressed the subject and in England and Wales, at least, there is a paucity of
doi:1350/ijep.2009.13.1.309
28 (2009) 13 E&P 28–49 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
1 In England and Wales, Sedley LJ commented on this practice more than adecade ago. Re H (L) [1997]
1 Cr App R 176. More recently, a Home Office study that tracked rape cases over a three-month
period in 2003 found that third party disclosure applications were made in nearly one quarter of
cases and medical records accounted for 22 per cent of applications. L. Kelly, J. Temkin and
S. Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials
(Home Office: London, 2006) 25. Mental health charities and victim organisations have
additionally voiced concerns over this development. Victim Support, Women, Rape and the Criminal
Justice System (Victim Support: London, 1996); M. Pedlar, S. Baker, C. Williams and S. George, Silenced
Witnesses (Mind: London, 2000).
C
* Email: L.E.Ellison@leeds.ac.uk.
decided cases.2In this article I set out to bridge this gap in the literature by first
examining how psychiatric evidence can be misused in rape trials. I begin by
drawing attention to the historical association of rape complaints with female
psychopathology and the underpinning belief that women falsely accuse men of
rape because they are psychologically disturbed or unable to distinguish
between rape and consensual sexual intercourse. This enduring association
provides a clear incentive for defence lawyers to question complainants about
their mental health in the context of a rape prosecution. The difficulty from an
evidentiary perspective is that such questioning may have little, if any, logical
bearing on a complainant’s credibility but may simply reflect popular prejudices
about mental illness and the untrustworthiness of women in relation to sexual
matters. Having outlined these concerns, the second part of the analysis
considers how rape complainants (and other witnesses) may be better protected
in court, turning attention specifically to the United States and the evidentiary
principles that criminal courts in some states have developed and applied to the
use of psychiatric evidence to impeach witness credibility. Drawing inspiration
from practice in these jurisdictions, I offer some thoughts on how a more
principled approach toward the use of psychiatric evidence might be instituted
in England and Wales.
False accusations and women’s ‘madness’
The association between allegations of rape and female psychopathology can be
traced to early 20th century medical jurisprudence. This period saw the
emergence of psychoanalysis and, as Edwards has detailed, interpretations of
female sexuality that were presented as both innately masochistic and related
to the subconscious mind, manifesting in sexual fantasies of sexual domina-
tion, violation and rape.3Both strands of psychoanalytic theory were quickly
assimilated within medical discourse and commentary on rape but were notably
taken a step further in the notion that women could not be trusted to differentiate
between their subconscious sexual desires and reality. According to Kanin, fear
of false allegations reached new heights at this time as prominent medical
figures warned of women’s proclivity to sexual delusion and the tendency of
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 29
USE AND ABUSE OF PSCHIATRIC EVIDENCE IN RAPE TRIALS
2 Critical commentary to date has centred on the evidentiary use of counselling records made
post-assault and issues surrounding the admissibility of evidence relating to a complainant’s
mental health pre-assault have been largely overlooked. See, e.g., S. Bronitt and B. McSherry, ‘The
Use and Abuse of Counselling Records in Sexual Assault Trials: Reconstructing the “Rape Shield”?’
(1997) 8 Criminal Law Forum 259.
3 S. Edwards, Female Sexuality and the Law (Martin Robertson: Oxford, 1981) 101. See also J. Forrester,
‘Rape, Seduction and Psychoanalysis’ in S. Tomaselli and R. Porter (eds.), Rape: An Historical and
Social Enquiry (Basil Blackwell: Oxford, 1986) 57–83.
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