U.S. flag

An official website of the United States government, Department of Justice.

NCJRS Virtual Library

The Virtual Library houses over 235,000 criminal justice resources, including all known OJP works.
Click here to search the NCJRS Virtual Library

Use and Abuse of Counseling Records in Sexual Assault Trials: Reconstructing the "Rape Shield"?

NCJ Number
Criminal Law Forum Volume: 8 Issue: 2 Dated: 1997 Pages: 259-291
S Bronitt; B McSherry
Date Published
33 pages
This paper examines the use and abuse of a victim's counseling records in sexual assault trials such that the intent of a "rape shield" law is undermined.
The common law of rape traditionally viewed the complainant's reputation for sexual license and her sexual history as relevant both to her credibility as a witness and to the issue of consent. In Australia, Canada, the United Kingdom, and the United States, the rules of evidence and procedure have been modified in recent years to restrict the way in which the defense can seek to undermine the credibility of women who allege rape. "Rape shield" laws in many common law jurisdictions now restrict the admission of evidence of sexual reputation and history in an effort to protect women from further victimization by the legal process. Recent empirical studies suggest, however, that rape shield laws are routinely ignored by counsel (both defense and prosecution) and by trial judges. Moreover, in Canada and Australia, defense counsel have sought to circumvent these provisions by targeting the psychiatric, rather than the sexual, history of the complainant. The main purpose of seeking access to such records is the same as that of investigating her sexual history: to find evidence that may be used to undermine her credibility as a witness. This article first critically examines the assumptions underlying defense counsel's desire for access to counseling records; it then surveys the public policy issues involved in granting or denying access to confidential counseling records, followed by an examination of the ways in which access might be restricted. Finally, the authors argue that the best approach is for the legislature to create an absolute privilege for counseling records that is offset by the inherent power of the courts to stay proceedings in circumstances in which the accused has been unfairly deprived of material essential for his defense. In camera the court would be allowed to inspect protected communications and/or examine relevant witnesses. Only when the court is satisfied that, without the benefit of this evidence, there is a risk of an unfair trial, should a stay be granted. The focus of the analysis is on Canada and Australia, but the issues are of much wider importance. 106 footnotes