Tag: sexual violence

Recent legal reforms, sexual violence, and the perils of “madness”

Posted on by nasrul.ismail

By Emma Yapp and Dr Sarah Markham*

In 2019, British journalist Sirin Kale wrote an article for Vice entitled ‘What it’s like to be raped and told you can’t talk about it with anyone’. The article referred to a legal policy published by the Crown Prosecution Service (CPS) in 2002, which recommended that anyone pursuing criminal justice reparations for sexual violence should not talk about what happened in therapy before a trial. The policy was intended to protect survivors from mental health evidence being used to impugn their credibility, but effectively pitted mental health support and legal redress against each other as mutually exclusive choices. Despite the well-established psychological aftermath of sexual violence, people were being told that they had to choose between comprehensive mental health support and criminal justice.

Following this media attention, the CPS conducted an overhaul of legal policies covering sexual violence and mental health. In addition, a feminist activist campaign for legislative reform has recently been successful, which enshrines in law additional restrictions around the disclosure of mental health evidence in sexual violence trials. Despite these developments, my PhD research demonstrated the various ways in which stereotypes and norms surrounding “trauma” and “madness” continue to bear on the adjudication of sexual violence testimony. Although both training and guidance on mental health and sexual violence has previously been provided for legal professionals by psychiatrists, it is my contention that such training must be informed by socio-legal and critical feminist research, to counter the prejudicial effect of stereotypes at the intersection of mental health and sexual violence. In this blog, I detail a few choice examples to demonstrate the harm of prejudicial ideas about sexual violence and mental health, and to assert that these legal reforms must be implemented alongside effective training materials for legal professionals.

My analysis of legal judgments and policies revealed a highly sceptical legal view of mental health in relation to sexual violence experienced in adulthood. Presently, admission of mental health evidence invariably re-introduces a corroboration requirement – survivors have to be corroborated by either a medical expert or an eyewitness for their cases to be successful. This reflects the law’s general scepticism of sexual violence testimony, and the increased psychological scrutiny brought in by the new wave of prosecutorial policies. By way of illustration, in the enduring CPS guidance on psychological evidence in sexual violence cases, criminal justice professionals are advised to consider ‘the evidential value of a diagnosis of PTSD’, while advocating an ‘understanding of pre-existing mental ill-health’ and cautioning that ‘corroboration must be actively sought and inconsistencies or lies must be dealt with rather than wished away’. This language is strongly suggestive of the twentieth century practice of conducting psychiatric evaluations of sexual violence testimony, encouraging prosecutors to seek either evidence of ‘corroboration’ or ‘mental ill-health […] inconsistencies or lies’.

In one particularly stark example from the case law, stereotypes about women, madness, and “attention-seeking” behaviour informed the adjudication of mental health evidence. Edward Gabbai had initially been convicted for sexual violence against multiple people in 2018. Part of the basis for his appeal, and the one that was ultimately successful, entailed accessing “fresh evidence” in the form of extensive psychiatric notes pertaining to one of the women he was convicted of assaulting, all recorded before she had met Gabbai in December of 2016. In 2014, the woman in question had seen a university counsellor who had taken notes of a previous experience of sexual violence. Referring to these notes, the judgement reported: ‘after discussion of her history of mental health problems and drug-taking, the notes record “see Thought Sheet… I took him back to my flat. I didn’t say no to begin with. Lying. Attention-seeker.”’ The court interpreted the use of the first person in quotation marks as ‘self-descriptions’. It was ultimately these ‘self-descriptions’ that served to acquit Gabbai, as it was suggested that the woman’s propensity towards ‘lying’, and her “attention-seeking” sexual behaviour, could have led to him having a reasonable belief in her consent.

The injustice of prejudicial ideas about mental health also impacts police treatment of sexual violence cases, producing additional harms for people who identify with psychiatric diagnoses and have experienced sexual violence. Philosopher Miranda Fricker has coined the idea of “testimonial justice”, where the denial of the legitimacy of a person’s testimony can produce both practical harms, barring their access to legal redress or healthcare, and can be a painful and dehumanising experience. This idea was drawn on explicitly by one of my interview participants, Elaine, who used the term to describe her interaction with the police when she reported her experience of sexual violence. Elaine had a diagnosis of depression at the time of reporting, and the police repeatedly told her that they were not ‘disbelieving’ her, although Elaine felt that this was a euphemistic way of saying that they did not believe her.

When I asked Elaine to elaborate on testimonial injustice and how this made her feel, she said ‘it made me feel devalued. It made me feel as though, what, you know, that what had been done to me didn’t really matter it didn’t really count […] it almost gave it a permission’; later she added that it made her feel ‘worthless’. The ‘testimonial injustice’ impacted Elaine’s sense of herself, which ‘never really recovered’. In this sense, there is an extent to which the prejudicial reception of her testimony actually caused her to feel ‘devalued’, and it additionally incurred practical harm in denying her access to legal redress. The harms Elaine experienced were not limited to the violence itself, but compounded by this subsequent experience of testimonial violence: the harms of prejudicial ideas about mental health and sexual violence extend beyond the courtroom.

The recent legal reforms covering sexual violence and mental health are intended to afford the mental health records of those who have experienced sexual violence improved protection. They may now only be requested if they have substantial “probative value”. However, these reforms cannot effectively counter the prejudicial reception that Elaine received, nor the emphasis on the “probative value” of evidence of ‘corroboration’ or ‘mental ill-health […] inconsistencies or lies’ in the current CPS guidance on psychological evidence. Further, similar legislation in New South Wales, Australia, has been criticised for leaving too much discretionary latitude to judges. The enduring endorsement of harmful stereotypes surrounding mental health and sexual violence amongst professionals at every stage of the criminal justice process means that it is now imperative that these reforms be accompanied by training concerning the practical and affective harm that these prejudicial ideas can cause.

* Emma Yapp has just joined the University of Bristol as a Senior Research Associate on Natasha Mulvihill’s Powerful Perpetrators project, which investigates sexual misconduct conducted by professionals in positions of power, including legal and medical professionals.

Dr Sarah Markham is an academic mathematician and someone with lived experience of epistemic injustice.

Making Obstetric Harms Visible: Participating in an Obstetric Violence Advisory

Posted on by jo.large

by Rachelle Chadwick

Reproductive and obstetric harms have not typically been included as areas of concern in critical and/or feminist criminology or zemiology studies. However, since the 2000s, obstetric violence (healthcare related abuse during pregnancy and birthing) has been recognized as a legal wrong and form of violence against women in several Latin and Central American countries (e.g. Venezuela, Argentina, Bolivia, Mexico, Panama). Efforts are also underway across a range of diverse global contexts (e.g. United States, South Africa, Australia, Spain) to name and strategise against this form of gendered harm and abuse. While legal attention has only recently turned to the issue of obstetric violence, feminist sociologists and anthropologists have long been engaged in trying to draw attention to the violations (of autonomy, dignity, personhood) that often occur during childbirth. As a young PhD student in South Africa, I was drawn to doing research in this area after reading British sociologist, Ann Oakley’s (1980) ‘Women Confined: Towards a Sociology of Childbirth’, in which she explores the pervasive distress that many women experience during and after birth. This prompted me to conduct research in South Africa exploring birth experiences across a range of race and class divides. My doctoral work on South African birth narratives was conducted before ‘obstetric violence’ was coherently named as a global concern and form of gender violence.

In the last ten years or so there has been an outpouring of research, activist mobilisation, and feminist writing on obstetric violence. As a result, international bodies such as the World Health Organization (WHO) and the United Nations (UN) have issued statements and reports on the issue. For example, in 2014, the WHO identified mistreatment during birth as a cause for transnational concern and in 2019, the UN released its report on a human-rights approach to obstetric violence. In various parts of Africa, efforts are also underway to tackle the problem.

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