Throughout history, complainants of sexual violence have faced evidence that is intended to undermine their credibility during court proceedings. Evidentiary rules or procedures (“rape shield laws”) intended to restrict the introduction of evidence about complainants’ sexual history have therefore been implemented in Canada, the UK, the US, New Zealand, and Australia. However, research in Canada and Australia suggests that such rules have led to an increase in the use of psychiatric evidence to undermine complainants’ credibility instead. Conditions for the admission of psychiatric evidence in sexual violence cases have therefore been developed in some US States.
Currently, England and Wales lack clear governing principles for when and how psychiatric evidence should be deemed relevant to complainants’ credibility. Furthermore, little is known about how this evidence is used in practice. Research examining 236 English court cases from 2003 indicates that applications for the disclosure of complainants’ medical or counselling records occur in around one in four formal applications for third party evidence. However, such data cannot capture how admission decisions are made, nor the full extent of the problem: character evidence is often admitted verbally and without formal application. Doctrinal legal research is therefore required to examine the historical context in which these decisions are made, and court observation data is necessary to examine how evidence is admitted in practice. Discrepancies between survivor and professional perspectives on appropriate practice also need resolution. This project seeks to address these gaps with respect to England and Wales, and to make recommendations for policy and practice.
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