Admitting mental health evidence to impeach the credibility of a sexual assault complainant.

• Author: Wilkinson-Ryan, Tess

INTRODUCTION

The 1970 edition of Wigmore on Evidence offers the proposition that every female complainant in a rape prosecution should be subject to a psychiatric examination and echoes turn-of-the century psychoanalysts in its explanation: "The unchaste (let us call it) mentality finds incidental but direct expression in the narration of imaginary sex incidents of which the narrator is the heroine or victim." (1) In other words, some women falsely accuse men of rape because, either intentionally or inadvertently, they have confused a sexual fantasy with a violent crime.

The focus of this Comment, and the focus of considerable controversy and difficulty in rape trials, is evidentiary procedure when the defendant claims that the complainant consented to the intercourse. Putting aside the philosophical problem of defining consent, (2) in the absence of physical injuries the only relevant evidence of the crime will be testimony from the defendant and the prosecutrix. (3) Recent reforms have attempted to address this situation. Federal Rule of Evidence 413, for example, permits prosecutors to introduce a defendant's history of sex crimes. (4) This Comment examines the evidentiary tools available to the defendant to impeach the testimony of the complainant. The defendant is protected by the Sixth Amendment's Confrontation Clause, (5) but this protection has been further defined, and some would say limited, by rape shield legislation. (6) Rule 412, the federal rape shield statute, broadly reflects the rejection of a system that conflated a woman's chastity with her credibility. (7) With limited exceptions, it excludes evidence of a complainant's sexual history in a sexual assault case. And, of course, any evidence against her will be subject to the normal rules of relevancy and prejudice.

These rules, however, leave at least one large gap. In most states, neither the rape shield law, the other rules of evidence, nor the case law set out comprehensive guidelines for the admissibility of evidence of the complainant's mental health. (8) Although no jurisdiction follows Wigmore's lead in mandating psychiatric examinations for every accuser, defendants may still request a review of a complainant's mental health history, a mental examination, or cross-examination as to a history of psychological problems. (9)

In this Comment, I argue that most jurisdictions are overly permissive in admitting evidence of the accuser's psychiatric make-up and history. Because many courts implicitly rely on outdated and inaccurate conceptions of psychiatric practice, it is too easy for defendants to introduce evidence that has no logical bearing on the complainant's credibility but will nonetheless prejudice the jury against her. This is not an argument about the complainant's right to privacy, but rather an argument about relevance and prejudice.

The introduction of psychiatric testimony intended to impeach the complainant's credibility can serve as an end-run around the rape shield laws; it contributes little relevant evidence, but humiliates the accuser and prejudices the jury against her. In some instances, expert testimony on the complainant's mental health may become an interrogation of the complainant's propensity for dishonesty. (10) Like evidence of sexual promiscuity, an accusation of mental illness has the power to invoke a gender-specific stigma of an unstable or manipulative accuser. Worse, questions about an accuser's mental health may implicitly conjure up stereotypes of female sexual behavior: female psychopathology has long been specifically linked to female sexuality in general and promiscuity in particular. (11)

In Part I of this Comment, I present the current state of the law and outline the most common methods of introducing psychiatric evidence about an alleged rape victim, namely the review of counseling records, court-ordered psychiatric examination, and cross-examination of the alleged victim. In Part II, I survey different state approaches and examine those that are both typical and unusual.

In Part III, I argue that most psychological evidence should be in-admissible because its relevance is substantially outweighed by its prejudicial effects. Psychology may have entered popular culture in some shallow respects, but it is often misunderstood by courts and juries alike. In order to make a considered decision as to admissibility (by the judge) or guilt (by the jury), a thorough understanding of the alleged psychopathology is crucial--there is an enormous difference, in terms of cognitive functioning, between dysthymia, a mild depression, and paranoid schizophrenia, a psychotic disorder. (12) There is even greater potential for jury confusion when evidence of actual psychotherapeutic treatment arises, in which the norms of a therapist-patient relationship, the theoretical orientation of the therapist, (13) and the strictures of insurance guidelines (14) may create a record that looks much more damning to a lay jury than it would to another therapist. Furthermore, psychiatry is an unusually controversial science and many of its methods are notoriously unreliable. (15) Finally, it can be unclear exactly how a jury is meant to use psychiatric testimony or mental health records, and a judge's instructions may simply be inadequate to confine their effect.

In Part IV, I discuss three common types of psychological evidence that defendants seek to admit: pathological lying, suicide threats, and post-traumatic stress disorder. Although all three labels are seemingly familiar to laypersons, it is this false familiarity that makes this evidence dangerously prejudicial.

Admitting evidence of a complainant's psychiatric history can create prejudice and confusion for the court and jury and humiliate the prosecutrix. In order to adjudicate the admissibility of mental health evidence, courts should identify a specific and scientifically legitimate relevance to the complainant's credibility. This should be balanced against the potentially misleading and confusing effect that the information will have on the fact-finding process. This reformed process likely would result in a reduction in admitted psychiatric evidence in rape trials, but also a greater adherence to the rules of evidence. Without this necessary reform, states continue to rely on a hazy mix of laws and evidentiary theories that may allow the use of a rape complainant's mental health history to showcase her unreliability as a witness.

1. FOUNDATIONS OF CURRENT LAW

   1. Rape Shield Laws

      Every state has enacted some form of a rape shield law, a law limiting the admissibility of evidence regarding the complainant's sexual history. (16) Federal Rule of Evidence 412 prohibits "[e]vidence offered to prove that [the] victim engaged in other sexual behavior or evidence offered to prove a "sexual predisposition." (17) Exceptions are allowed to prove that physical evidence (e.g., semen) was the result of intercourse with a person other than the defendant, or, in the case of a consent defense, to prove that the victim had in the past consented to and engaged in sex with the defendant. (18)

      When considering the admissibility of mental health history evidence, many courts are especially concerned with the purpose of the rape shield statute. The Advisory Committee's Note to the 1994 amendment explains that

      [t]he rule aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process. By affording victims protection in most instances, the rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders. (19) Some courts have reasoned that a similar argument can be made for evidence of psychiatric, rather than sexual, history. (20) The purpose of the rape shield laws is to protect the prosecuting witnesses from probing, humiliating inquiries and thereby to encourage victims to come forward with their claims. Although the stigma attached to promiscuity is qualitatively different than that associated with psychopathology, the underlying principle justifying protection is the same. The defendant, not the complainant, is on trial; the focus of evidence should relate to the defendant's actions rather than to the complainant's character.

      The Advisory Committee's Note to Rule 412 does not take an explicit position on the relevance of past sexual conduct to consent and credibility. We can assume that an "infusion of sexual innuendo into the fact finding process" (21) is undesirable because it is more prejudicial than relevant, but some states have nonetheless permitted evidence of past sexual conduct to be used to prove consent or to impeach credibility. (22) A specific repudiation of the link between chastity and credibility--and even past consent with current consent--would be more analytically helpful to courts trying to analogize sexual conduct to mental health evidence.

   2. Court-Ordered Psychiatric Examinations

      Although the states differ in both subtle and substantive ways in their treatment of court-ordered psychiatric examinations of sex crime complainants, the touchstone for many analyses is the California Supreme Court's ruling in Ballard v. Superior Court. (23) The Ballard court explained that the rationale supporting psychiatric examinations for sex crime complainants is the possibility that a conviction may be sustained on the uncorroborated testimony of the victim: "This concern is stimulated by the possibility that a believable complaining witness, who suffers from an emotional condition inducing her belief that she has been subjected to a sexual offense, may charge some male with that offense." (24) Citing "prominent psychiatrists," the court noted that these accusers may be confused by "a mental condition that transforms...