Two Roads Converge: The Interchange Between the Mental Health and Legal Discourses in Sexual Assault Trials
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/09646639221117388 |
| Author | Inbar Cohen,Tali Gal,Guy Enosh |
| Date | 01 June 2023 |
| Subject Matter | Articles |
Two Roads Converge: The
Interchange Between the
Mental Health and Legal
Discourses in Sexual
Assault Trials
Inbar Cohen , Tali Gal
The school of Criminology, Faculty of Law,
The University of Haifa
Guy Enosh
The School of Social Work, Faculty of Welfare and
Health Sciences, The University of Haifa
Abstract
Disciplinary differences between mental health and legal discourses limit the implemen-
tation of mental health knowledge (MHK) in legal proceedings. This study examined the
interchange between these discourses, focusing on sexual assault cases that required tes-
timonies of mental health expert witnesses (MHEWs) in Israel. 42 multi-perspective
interviews including 16 MHEWs and 26 legal practitioners were analyzed using critical
discourse analysis. Participants’statements relayed three depictions of the interchange
between mental health and legal discourses: a dichotomized one, which regards both
discourses as incompatible; a tactical one, which regards MHK as beneficial when serving
legal interests; and a radical one, which regards MHK as imperative to legal discretion,
placing therapeutic considerations ahead of legal ones. The study provides a first empir-
ical analysis of the law-mental-health interchange. In particular, it identifies an emerging
practice of therapeutic-legal ("theralegal") discretion, which reflects an understanding
that legal considerations alone cannot address complex criminal legal issues.
Keywords
Critical discourse, theralegal discretion, mental health expert witnesses, sexual assault
trials, therapeutic jurisprudence
Corresponding author:
Inbar Cohen, The school of Criminology, The University of Haifa, 199 Aba Khoushy Ave.Mount Carmel, Haifa,
Israel 3498838.
Email: inbar0105@gmail.com
Article
Social & Legal Studies
2023, Vol. 32(3) 441–463
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639221117388
journals.sagepub.com/home/sls
The use of mental health knowledge (MHK) through testimonies of mental health expert
witnesses (MHEWs) in criminal proceedings has become common since the 1970s
(Blumenthal, 2002). Testimonies of MHEWs in sexual assault cases usually focus on
issues such as victims’trauma exposure (Ellison, 2005; Miller, 2015), defendants’eligi-
bility to stand trial or their criminal responsibility, risk assessments of sexual offenders
(Goel et al., 2016), and testimonies regarding a particular course of treatment for the
victim or the offender.
MHEWs’court testimonies raise significant challenges stemming from fundamental
differences between law and science and specifically law and mental health.
Professionals from each discipline face significant paradigmatic differences between
law and behavioural sciences that may manifest in ethical dilemmas and their overall
experience during court testimony.
Few scholars addressed those issues based on empirical studies. This study aims at
examining the interchange between law and mental health in sexual assault cases tried
in the Israeli court system.
Current literature about the law-science "culture clash" (Goldberg, 1994), highlights
the fundamental struggle between the scientific emphasis on progress and innovation
and the legal focus on social goals and due process (Goldberg, 1994). The clash
between MHK and the law is attributed mostly to paradigmatic differences, focusing
on the different definitions of what constitutes a fact, and the difference between the
empirical social role of psychology, which seeks to understand human behaviour, and
the normative role of the law, which guides behaviour through adversarial proceedings
(Greenberg and Shuman, 2007; Haney, 1980; Melton et al., 2017).
Part of the discussion regarding court testimonies of MHEWs addresses the legal
dilemmas regarding the admissibility and relevance of psychological knowledge in judi-
cial proceedings, most of which focuses on the limited validity of mental health diagnos-
tic tools (Faust et al., 2010). For example the validity of parental alienation evaluations in
child custody cases is challenged due to their reliance on socially constructed ideas of
appropriate behaviour (Milchman et al., 2020). In sexual assault proceedings, the validity
of expert testimonies regarding repressed memories is constantly questioned in light of
the possibility to form false memories of sexual assault, affecting the court’s view of
victims’memories (Crook and McEwen, 2019). The validity of risk assessment tools
designed to predict future recidivism is criticized. The criticism focuses on assessments
that rely on clinical interviews, as opposed to statistic-actuarial tools, claiming these tools
have a low predictable ability (Hanson and Morton-Bourgon, 2009). However, algorith-
mic risk assessment tools are criticized as well for not being transparent and for being
affected by the young age parameter, leading to improper condemnation of youth offen-
ders (Stevenson and Slobogin, 2018). Additional criticism focuses on risk assessments
that are used to justify involuntary confinement, claiming that their descriptive and nor-
mative components can make accurate predictions only in high-risk cases (Scurich and
John, 2010).
Another part of the discussion regarding expert testimonies in court concerns the
ethical dilemmas arising in the case of testimonies of MHEWs. One example is the
breach of therapist-client privilege caused by the disclosure of therapy records to the
court, which may harm the therapeutic alliance, primarily in sexual assault cases (Pope
442 Social & Legal Studies 32(3)
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