Privacy and prejudice

// 26 January 2012

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A photograph of a woman taken at Slutwalk NYC. She has long blonde hair and there is a crowd behind her. She carries a home made placard which has a cartoon girl on it, and which reads Women in Scotland are likely to be pressurised into releasing their medical records for use in court. The advice from the Crown is for prosecutors, and is supposed to be an attempt to increase conviction rates for rape, which currently stands at 7%.

The reasoning appears to be based on defence lawyers’ usage of previous mental health problems in the victim as a way to discredit them, so if the prosecutors can bring up medical records first, it will give them an advantage to present them in a positive way.

However, it is misguided. Firstly, there is the issue of privacy.

Sandy Brindley, from Rape Crisis Scotland, explains in the Scotsman that this change will deter women from coming forward.

“People contact us and ask what rights they have [to refuse to disclose medical records]. But if they say No, that might mean there’s no prosecution.

In addition, Fiona Raitt, Professor of Evidence and Social Justice at Dundee University, said,

“Everyone knows you get a horrible time as a complainer in a rape trial and I’ve been very surprised by the lack of concern over this. Do we have to give up all our privacy rights to complain about assault?”

As well as the privacy concerns is the issue that using victims’ medical records in court is a way to effectively discredit the experiences of any woman who has a history of mental illness, or who has a learning disability.

These groups of women are particularly vulnerable to sexual assault, moreso than the general population, and this is, arguably, partially due to the fact that they are frequently disbelieved, are considered “unreliable witnesses” in the courts’ eyes, and are not taken seriously. Encouraging the use of medical records in court cases further promotes the misapprehension that there are groups of people, chosen by dint of their health conditions, who are more, or less, believable than others.

Nor does it take into account that developing mental health problems, or any kind of emotional distress, after being raped, is a normal, understandable and expected reaction. Using this to discredit and undermine the victim in court is a foul, and all too common tactic.

Medical notes are a personal record of an individual’s health. If refusing to surrender them to the mercy of barristers means your case will not go to court, there are serious flaws in the legal system.

[The image is a photograph of a woman taken at Slutwalk NYC. She has long blonde hair and there is a crowd behind her. She carries a home made placard which has a cartoon girl on it, and which reads “Punish rapists not victims!”. It was taken by Dave Bledsoe and is used under a Creative Commons Licence]

Comments From You

Justine Ossum // Posted 26 January 2012 at 4:43 pm

This development beggars belief. If I was to decide to report my (historical) rape to the police, the subsequent years of depression and self-harm – which are recorded in my medical records, as I have sought assistance several times – would almost certainly be used as an attempt to paint me as the liar the man who raped me certainly thinks I am. That my mental health has suffered for so long, the trigger being sexual assault and subsequent incidences of sexual violence would undoubtedly be glossed over. And that I appear to be capable of living an almost normal life, with brief periods where I feel almost normal and not depressed, would probably also be used against me; well, it can’t be that bad because I haven’t been actively suicidal for 15 years – that kind of thing.

This is a dangerous idea and it will backfire. It’s not like prosecuting lawyers have a fabulous record of standing up for the witness.

Shadow // Posted 26 January 2012 at 7:43 pm

Who will benefit from this latest onslaught whereby women survivors of male sexual violence will have their personal medical history minutely examined by defence and prosecution counsels for any signs no matter how trivial – for proof (sic) female victim is non-credible/an innate liar! Answer – men of course because it is unthinkable any male defendant is an innate liar because men are always credible witnesses are they not and said claims are made because men are always truthful and upright are they not?

The legal system needs to enact measures to limit defence counsel from subjecting female rape survivors to intrusive and wholly irrelevant cross-examination in order to portray the female victim as a supposed liar or else she is suffering from delusions!

Prosecution counsel must be accorded the legal right of challenging defence counsel when they produce witnesses who defaim female victim’s character. Once a female rape survivor has given evidence she has no legal way of refuting the ludicrous claims defence counsel levy concerning her supposed ‘moral/sexual character’ as if this in itself defines a ‘credible/non-credible female rape survivor.’ Male defendants are not routinely subjected to minute prosecution counsel cross-examination of their sexual proclivities; medical history; number of female sexual partners etc. etc. Instead the focus is always on the male defendant’s public persona which supposedly defines whether or not he is a ‘respectable man.’

SexierThanThou // Posted 27 January 2012 at 9:10 pm

Here’s an ignorant question: How exactly can rape be proved? Could the dude not just claim it was consensual? Then, wouldn’t most of the physical evidence just be considered circumstantial?

Philippa Willitts // Posted 28 January 2012 at 8:31 pm

It comes down to the balance of evidence on both sides. Certain signs like injuries, and comments the attacker makes to others, can be signs, but are far from universal.

laura // Posted 21 February 2012 at 5:55 pm

As a survivor whose experience was violated and invalidated further by police treatment, this does not suprise but deeply saddens and angers me. We are silenced.

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