A Critical Exploration of the Use of Mental Health Records in Rape Trials

Abstract

Commentators discussing the cross-examination of rape complainants have tended to focus on sexual history evidence and character evidence more generally. The defence use of psychiatric evidence has, in contrast, received very little attention to date. This thesis examines the use of women’s mental health records in rape trials, arguing that such use is a further demonstration of the resilient focus on the complainant’s character and behaviour in rape trials. Against a backdrop of wide stigmatisation and victimisation of those with mental health problems, this thesis aims to analyse the existing literature on use of mental health records in rape trials, while also serving to highlight the need for more sustained critical research and reflection on the treatment of women with mental health problems within the criminal justice system. The thesis argues that the law governing the use of mental health records in rape trials is significantly flawed and requires reform, taking inspiration from the law in two other jurisdictions – Canada and New South Wales.