Privacy outcry over bid to turn tables on rapists

Published on Sunday 15 January 2012 00:00

PROSECUTORS have been told to seek out the medical records of women involved in rape cases in an attempt to increase the low number of convictions in the Scottish courts.

But the move has been criticised by rape counselling groups, which claim new Crown Office guidelines are an invasion of privacy that will put victims off legally pursuing attackers.

The Crown guidance is in response to the 2010 Criminal Justice Act, which further enshrined the defence’s right to disclosure of material evidence. With defence lawyers able to use an alleged victim’s previous mental health problems to make them seem less credible, the Crown wants to be able to raise medical issues first in court, in a sympathetic way, to negate any attacks which might come later under cross examination.

Rape Crisis Scotland says it understands Crown reasoning but still believes such requests would be a breach of privacy which could lead to a reduction in women coming forward to report sexual assaults.

Scotland already has a low, 7 per cent, conviction rate for sex attacks.

Sandy Brindley, national co-ordinator for Rape Crisis Scotland, said: “It’s something we’re worried about as it’s a deterrent to reporting cases. There’s a major privacy issue along with issues around relevance – if you’ve had depression or other mental health issues, what does that have to do with being raped?

“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. I do not see a proven link between having a mental health problem and a propensity to lie about being raped. If a link between the credibility and mental health of a rape complainer has been made, what does that mean for people who have had problems in the past and their ability to access justice?”

The counselling group said it was also concerned that no other potential crime victim is being asked for such personal data. “I don’t think anyone would want strangers looking through your personal records. It can add to how violating the whole process can be,” said Brindley.

Prosecutors themselves have in the past used an alleged victim’s medical history to drop cases, suggesting that defence lawyers were likely to deploy mental health issues if disclosed. In South Wales in 2006, 14-year-old Kay Miller, who had battled depression and eating disorders before she was raped, killed herself by jumping in front of a train.

Her father Mark told an inquest that the South Wales Crown Prosecution Service then dropped the case. “They explained her mental health problems would have been aired in court and Kay could have been made out to be someone who fantasised or played on her illness,” he said.

Fiona Raitt, professor of evidence and social justice at Dundee University, said that, particularly in trials where the focus was very much on the complainer, the defence’s job was to undermine the witness. “One way this is commonly done is by looking to see if they have mental health records as this might make them seem unreliable,” Raitt 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?”

A spokesman for the Crown Office said: “Personal records are not obtained in every case involving sexual crime and are not obtained routinely. Decisions on whether such records should be obtained are taken by specialist Crown Counsel in the National Sex Crimes Unit on a case-by-case basis.”

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