The government has recognised that the length of a woman’s skirt and her past sexual history does not mitigate a rapist’s culpability, so why has it not recognised that a survivor’s mental health should not be "fodder for the defence"?
So asks one rape survivor in her brave and moving testimonial about the experience of having her medical records aired in court. Sarah Scott was brutally attacked, leaving her with harrowing injuries. In court, however, Scott says she herself felt that she was on trial. She was taken completely by surprise when the QC representing her attacker raised the fact that she had self-harmed years previously as a child, as a result of being bullied, a fact she had disclosed only to her school psychologist and perhaps her GP. Scott believes that the defence was trying to undermine her credibility.
While improvements have been made to the way rape and domestic abuse survivors are treated in court, in some respects the system is still unfair to the complainer. So it is a welcome development that Lord Glennie has upheld the right of a complainer in a domestic abuse case to receive legal aid to oppose the disclosure in court of her medical records. Up until now, there has been no provision for them to do so.
Rape Crisis notes that having their personal lives raked over in a courtroom acts as a “direct deterrent” to women reporting rape in the first place. There could be times when a woman’s medical records are relevant to the defence, but she should certainly have a right to know if they are being brought into play and her lawyer should have the right to oppose their disclosure.
Huge strides have been made in improving the way rape and domestic abuse survivors are treated in court. The pernicious and once pervasive prejudice that victims were somehow responsible for being raped, has been successfully challenged in a variety of ways, even if not wholly eradicated. But it is sobering to note that a victim’s medical records are still frequently applied for in rape cases. While restrictions do already apply to what may be requested from those records, and it is not possible for lawyers to engage in all-out fishing expeditions, women’s rights campaigners have serious concerns about how they are being used.
The Scottish Government has a proud record of championing the interests of women who have experienced violence. They have fallen short of the mark on this particular matter so far, but now have the opportunity to reconsider the application made to them for legal aid. It makes sense that complainers should have the right to contest the disclosure of her medical history, without preventing medical records being admitted into evidence in a blanket fashion. Naturally there will be implications for the legal aid budget but that cannot be allowed to stand in the way of an important human rights judgment such as this.
The proportion of rape prosecutions that result in a conviction is still far too low: 41 per cent in 2013/14, compared to an 87 per cent conviction rate for all crimes. Many women are still disillusioned by the court process, so any measure that makes it a fairer process is to be embraced.
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