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The use and abuse of counseling records in sexual assault trials: Reconstructing the “rape shield”?

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References

  1. Kathy Mack,Continuing Barriers to Women’s Credibility: A Feminist Perspective on the Proof Process, 4 Crim. L.F. 327 (1993); Aileen McColgan,Common Law and the Relevance of Sexual History Evidence, 16 Oxford J. Legal Stud. 275 (1996).

  2. This article is concerned primarily with female survivors of rape because the vast majority of reported rapes concern women assaulted by men. The rape of men by other men is a distinct sociocultural phenomenon that remains vastly underreported.See generally Male Victims of Sexual Assault (Michael B. King & Gillian C. Mezey eds., 1992).

  3. E.g., Criminal Code §§ 276–277, R.S.C. 1985, ch. C-46 (Can.), makes it impermissible to challenge the credibility of a complainant by adducing evidence of her sexual reputation;accord Crimes Act, 1900, § 409 (Austl. N.S.W.); Sexual Offences (Amendment) Act, 1976, § 2 (Eng.). In the United States, Fed. R. Evid. 412 makes evidence of past sexual behavior generally inadmissible in federal cases;accord 725 Ill. Comp. Stat. Ann. 5/115-7 (1997); Mo. Ann. Stat. § 491.015 (1996); N.J. Stat. Ann. § 2A:84A-32.1 (1996).

  4. The protection afforded by rape shield provisions is not absolute and the rights of the accused are protected by permitting evidence of sexual experience to be adduced or elicited where its exclusion would cause unfairness to the accused. Evidence Act, 1971, § 76G(1) (Austl. A.C.T.). In New South Wales, the exceptional circumstances are prescribed by statute, Crimes Act, 1900, § 409B(3)(c), (e) (Austl. N.S.W.), where the admission of sexual history evidence is permitted in order to explain the presence or absence of semen, pregnancy, injury, or disease when the accused denies that sexual intercourse took place. Such exceptions, express or implied, have been expansively interpreted by the courts,e.g., R. v. Viola, 75 Crim. App. 125 (C.A. 1982) (Eng.), which are concerned lest the protection accorded the complainant jeopardize the accused’s right to a fair trial, particularly the right to make full answer and defense. Zsuzsanna Adler,Rape on Trial (1987); Jennifer Temkin,Sexual History Evidence: The Ravishment of Section 2, 1993 Crim. L. Rev. 3.

  5. Adler,supra note 4, at 100, in her study of the operation of rape shield laws in England over a one-year period in the early 1980s, reported that sexual history evidence was admitted in 96 percent of rape trials. A recent government study in Australia revealed that in 84 percent of sexual assault trials conducted before district courts in New South Wales in May 1994–April 1995, evidence of the complainant’s sexual experience was admitted. Department for Women, New South Wales,Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault 10 (1996) [hereinafterHeroines of Fortitude].

  6. R. v. Osolin, [1993] 4 S.C.R. 595, 86 C.C.C.3d 481, 500 (Can.).

  7. Seesupra text accompanying note 6.

  8. Osolin, 86 C.C.C.3d at 524.

  9. A developing literature critiques medical (mis)conceptions concerning women and madness.E.g., Phyllis Chesler,Women and Madness (1973); Elaine Showalter,The Female Malady (1985); Jane M. Ussher,Women’s Madness (1991); Denise Russell,Women, Madness, and Medicine (1995). For a critical exploration of the medico-legal construction of female sexuality, see Susan Edwards,Female Sexuality and the Law 71–100 (1981).

  10. Showalter,supra note 10, at 145–64.

  11. Quoted in Georges Didi-Huberman,Invention de l’hystérie 32 (1982).

  12. R. v. Beharriell, [1995] 4 S.C.R. 536, 130 D.L.R.4th 422 (Can.); R. v. O’Connor, [1995] 4 S.C.R. 411, 130 D.L.R.4th 235 (Can.). In New South Wales, a rape crisis worker refused to hand over her subpoenaed file notes relating to counseling sessions with a complainant in a rape case and was jailed for contempt. For a discussion of this unreported case, see Simon Bronitt,No Records, No Time, No Reason: Protecting Rape Victims’ Privacy and the Fair Trial, 8(2) Current Issues Crim. Just. 131 (1996).

  13. O’Connor, 130 D.L.R.4th at 257 (Lamer, C.J.C., & Sopinka, J.).

  14. Id. at 299.

  15. Director of Public Prosecutions v. Morgan, [1976] App. Cas. 182 (Eng. H.L.) (holding that a mistaken belief in consent, however unreasonable, negated the intention required for the offense of rape); Bernadette McSherry,Legislating to Change Social Attitudes: The Significance of Section 37(a) of the Victorian Crimes Act 1958, inWithout Consent: Confronting Adult Sexual Violence 380 (Patricia Easteal ed., 1993). On rape myths, see Patricia Easteal,Survivors of Sexual Assault: An Australian Survey, 1994 Int’l J. Soc. L. 22, 329.

  16. Under the common law, in sexual offenses trials, the jury must be warned that it is dangerous to convict on the basis of the testimony of the complainant unless there is independent corroboration of the accused’s guilt. Mack,supra note 1, at 332–33. However, the abolition of this mandatory corroboration warning in many jurisdictions has not altered the informal judicial practice of cautioning the jury about the danger of relying solely on the evidence of rape complainants in individual cases.Heroines of Fortitude, supra note 5, at 8.

  17. On the debate surrounding repressed memory, see Ian Freckelton,Repressed Memory Syndrome: Counterintuitive or Counterproductive?, 20(1) Crim. L.J. 7 (1996). Freckelton argues that opinion evidence on repressed memory should not be admitted because the experts are divided and because there are serious "dangers" of prejudice to the accused. But suggestibility and confabulation are risks in much witness testimony (such as police who refresh their memories using notebooks or witnesses who rehearse their depositions). One suspects that the primary concern about repressed memory relates to its sexual content, and the vulnerability of men to the possibility of false accusation.

  18. Freud’s revision of his early hypothesis, subsequently known as the seduction theory, has been vehemently criticized in recent years. For an introduction to the controversy, see Jonathan Lear,The Shrink Is In, New Republic, Dec. 25, 1995, at 18.

  19. See, in particular, Jeffrey Moussaieff Masson,The Assault on Truth (1984).

  20. The guidelines issued by the Australian Psychological Society and the European Therapy Studies Institute are discussed in Barry Winbolt,False Memory Syndrome: An Issue Clouded by Emotion, Med. Sci. L. 36(2) 100 (1996).

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  21. Annie Cossins,Contempt or Confidentiality, Alternative L.J. 21(5) 223 (1996); Michael Laurence,Rape Victim-Crisis Counselor Communications: An Argument for an Absolute Privilege, 17 U.C. Davis L. Rev. 1213, 1221–26 (1984).

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  22. In re Pittsburgh Action against Rape, 428 A.2d 126, 146 (Pa. 1981) (Larsen, J., dissenting),cert. denied sub nom. Aultman v. Pennsylvania, 504 U.S. 977 (1992).

  23. G.A. Res. 40/34, U.N. GAOR, 40th Sess., Supp. No. 53, at 213, U.N. Doc. A/40/53 (1985).

  24. International Covenant on Civil and Political Rights,adopted Dec. 16, 1966, art. 17, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter International Covenant].

  25. R. v. O’Connor, [1995] 4 S.C.R. 411, 130 D.L.R.4th 235 (Can.).

  26. Kirk Martin,Court Rules against Rape Victims, Globe and Mail (Toronto), Dec. 15, 1995, at A7.

  27. Bronitt,supra note 13.

  28. Can. Const. (Constitution Act, 1982) pt. I [hereinafter Can. Charter].

  29. Id. § 7 states that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." In R. v. Morgentaler, [1988] 1 S.C.R. 30, 171 (Can.), Justice Wilson stated that the right to liberty should be read to "guarantee to every individual a degree of personal autonomy over important decisions intimately affecting their private lives." The Supreme Court has also expressed sympathy for the proposition that § 7 includes a reasonable expectation of privacy. B(R) v. Children’s Aid Soc’y of Metropolitan Toronto, [1995] 1 S.C.R. 315, 369 (Can.) (La Forest, J.); R. v. Beare, [1988] 2 S.C.R. 387, 412 (Can.). Section 8, guaranteeing freedom from unreasonable search and seizure, has been held to have as its fundamental purpose the need "to protect individuals from unjustified state intrusions upon their privacy." Hunter v. Southam, Inc., [1984] 2 S.C.R. 145, 159 (Can.);see also R. v. Dyment, [1988] 2 S.C.R. 417 (Can.); R. v. Pohoretsky, [1987] 1 S.C.R. 945 (Can.). In general, all these cases refer to the Charter as guaranteeing a "reasonable expectation" of privacy, rather than a right to privacy per se.

  30. Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 (Can.); McInerney v. MacDonald, [1992] 2 S.C.R. 138, 148–49 (Can.).

  31. S.Q. 1991, ch. 64, arts. 35–36 (Can. Que.).

  32. R.S.Q. 1977, ch. C-12, § 5 (Can. Que.).

  33. R. v. O’Connor, [1995] 4 S.C.R. 411, 130 D.L.R.4th 235, 290 (Can.).

  34. 130 D.L.R.4th at 248 (Lamer, C.J.C., & Sopinka, J.).

  35. International Covenant,supra note 25, art. 17. As of September 1, 1997, 138 states had ratified or acceded to the International Covenant, including Australia, Canada, the United Kingdom, and the United States (the latter not until 1992 and with substantial reservations).

  36. Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 8, Eur. T.S. 5, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953), guarantees "respect" for one’s "private and family life," "home," and "correspondence." Similar provision is made in American Convention on Human Rights,opened for signature Nov. 22, 1969, art. 11, 1144 U.N.T.S. 123 (entered into force July 18, 1978). The right to privacy is not, however, absolute and may be restricted in a democratic society in order, inter alia, to prevent disorder or crime, to protect health or morals, or to protect the rights and freedoms of others. These derogations are strictly construed, subject to tests of necessity, reasonableness, and proportionality. Seeinfra notes 41–44 and accompanying text.

  37. X v. Iceland, App. No. 6825/74, 5 Eur. Comm’n H.R. Dec. & Rep. 86, 87 (1976);see A.M. Connelly,Problems of Interpretation of Article 8 of the European Convention on Human Rights, 1986 Int’l Comp. L.Q. 35, 567. This broader conception of privacy is reflected in Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), 4 Eur. H.R. Rep. 149 (1982).

  38. Gaskin v. United Kingdom, 160 Eur. Ct. H.R. (ser. A) (1989), 12 Eur. H.R. Rep. 36 (1990); Bernadette McSherry,Access to Medical Records (Australian Institute of Health Law & Ethics, Topics for Attention, Issues Paper No. 1, 1996).

  39. In the United States, the U.S. Court of Appeals for the Ninth Circuit, the California Supreme Court, and the Pennsylvania Supreme Court have all held that confidences imparted to a psychotherapist are protected by constitutional zones of privacy. Caesar v. Mountanos, 542 F.2d 1064, 1067 (9th Cir. 1976),cert. denied, 430 U.S. 954 (1977);In re Lifschutz, 467 P.2d 557, 567–68 (Cal. 1970);In re B, 394 A.2d 419, 423–26 (Pa. 1978).See also infra note 91.

  40. R. v. O’Connor, [1995] 4 S.C.R. 411, 130 D.L.R.4th 235, 289 (Can.) (L’Heureux-Dubé, J.).

  41. For example, in Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (ser. A) (1981), 4 Eur. H.R. Rep. 149 (1982), the European Court of Human Rights found that some degree of regulation of homosexual conduct, specifically concerning the age of consent, may be justified in a democratic society.

  42. Toonen v. Australia, No. 488/1992,Report of the Human Rights Committee, U.N. GAOR, 49th Sess., Supp. No. 40, vol. II, at 226, 234, ¶ 8.3, U.N. Doc. A/49/40 (1993) (quoting the committee’s earlier General Comment 16(32) on art. 17). Such comments are regarded as authoritative rulings on the interpretation of the covenant.

  43. Id. ¶ 8.3. The principle of proportionality is also applied in constitutional adjudication in Australia. Nationwide News Pty. Ltd. v. Wills, 177 C.L.R. 1 (Austl. 1992); Australian Capital Tel. Pty. Ltd. v. Commonwealth (No. 2), 177 C.L.R. 106 (Austl. 1992).

  44. R. v. Beharriell, [1995] 4 S.C.R. 536, 130 D.L.R.4th 422, 450 (Can.).

  45. 130 D.L.R.4th at 450.

  46. See R. v. Governor of Brixton Prison,ex parte Osman (No. 1), 93 Crim. App. 202, [1992] 1 All E.R. 108, 116 (Q.B. 1990) (Eng.); Richard Scott,The Use of Public Interest Immunity Claims in Criminal Cases, 2 Web J. Current Legal Issues 1 (1996),available at http://www.ncl.ac.uk/-nlawwww/1996/issue2/scott2.html [hereinafter Scott,Web Journal]; Richard Scott,The Acceptable and Unacceptable Use of Public Interest Immunity, 1996 Pub. L. 427.

  47. [1991] 2 S.C.R. 577, 611 (Can.).

  48. The courts have inherent jurisdiction to prevent an unfair trial. New South Wales v. Canellis, 181 C.L.R. 309, 328 (Austl. 1994); Dietrich v. R., 177 C.L.R. 292 (Austl. 1992); John Fairfax Pub. Pty. Ltd. v. Doe, 130 A.L.R. 488, 511, 515 (N.S.W. C.A. 1995) (Austl.) (Kirby, P.); Attorney General of New South Wales v. Milat, 37 N.S.W.L.R. 370, 373–74, 380 (N.S.W. Crim. App. 1995) (Austl.).

  49. Andrew L.-T. Choo,Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited, 1995 Crim. L. Rev. 864.

  50. R. v. Morgan, 30 N.S.W.L.R. 543 (N.S.W. Crim. App. 1993) (Austl.); R. v. Bernthaler, 1993 N.S.W. LEXIS 8124 (N.S.W. Crim. App. Dec. 17, 1993) (Austl.); Editorial,Staying a Trial for Unfairness: The Constitutional Implications, 18 Crim. L.J. 317 (1994).

  51. R. v. PJE (N.S.W. Crim. App. Oct. 9, 1995) (Austl.) (Sperling, J., Cole, J.A., & Grove, J., concurring). In dismissing the accused’s application for special leave to appeal, Chief Justice Brennan, speaking for the majority, held that the Court of Criminal Appeal decision was "clearly correct" and that a court could not invoke a stay on the ground that a law enacted by Parliament is unfair. Grills v. R.,consolidated with PJE v. R., Nos. S8/1996 & S154/1995, transcript at 15 (High Ct. Sept. 9, 1996) (Austl.).

  52. [1995] 4 S.C.R. 411, 130 D.L.R.4th 235, 290 (Can.). For a comparative review of the law in this area, see Susanna Ford,Health Care Confidentiality: Recent Legal Developments in Canada and Australia, 4(2) Health Care Analysis 157 (1996).

  53. 8 John Henry Wigmore,Evidence in Trials at Common Law 527 (rev. ed. 1961).

  54. O’Connor, 130 D.L.R.4th at 257.

  55. S.C. 1997, ch. 30 (Can.) (entered into force May 12, 1997).

  56. Evidence Amendment (Confidential Communications) Bill, 1997 (Austl. N.S.W.) [hereinafter Evidence Amendment Bill, 1997]. As noted in the text, the bill was redrafted following public consultation. Attorney General’s Dep’t, New South Wales,Discussion Paper: Protecting Confidential Communications from Disclosure in Court Proceedings app. 1 (June 1996) [hereinafterN.S.W. Discussion Paper].

  57. Evidence Amendment Bill, 1997,supra note 57, cl. 126H(4).Id. cl. 126G defines "harm" as "actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm (such as shame, humiliation and fear)."

  58. Id. cl. 126H(5).

  59. N.S.W. Discussion Paper, supra note 57, at 15, ¶ 4.9.

  60. Dietrich v. R., 177 C.L.R. 292 (Austl. 1992). International Covenant,supra note 25, art. 14, guarantees the accused’s right to a fair trial. The covenant was ratified by Australia in 1980.

  61. Canada acceded to the International Covenant in 1976. The Charter of Rights and Freedoms was enacted in large part to fulfill Canada’s obligations under the covenant. Martin L. Friedland,Judicial Independence and Accountability: A Canadian Perspective, 7 Crim. L.F. 605, 624 (1996). Can. Charter,supra note 29, § 7, enshrines the right to adjudication in accordance with the principles of fundamental justice.

  62. Scott,Web Journal, supra note 47.

  63. Susan Murphy,Assisting the Jury in Understanding Victimization: Expert Psychological Testimony on Battered Woman Syndrome and Rape Trauma Syndrome, 25 Colum. J.L. & Soc. Probs. 277 (1992); Anne Marie Delorey,Rape Trauma Syndrome: An Evidentiary Tool, 3 Can. J. Women & L. 531 (1990).

  64. For a critical analysis of the role of experts in defending battered women who kill, see Katherine O’Donovan,Law’s Knowledge: The Judge, the Expert, the Battered Woman, and Her Syndrome, 20 J.L. & Soc’y 427 (1993); Patricia Easteal,Battered Woman Syndrome: What Is "Reasonable"?, 17(5) Alternative L.J. 220 (1992).

  65. At common law, an expert cannot offer an opinion on matters that are within the common knowledge of the jury. R. v. Murphy, 167 C.L.R. 94 (Austl. 1989). Evidence Act, 1995 (Austl. N.S.W. & Commw.), § 78, allows evidence of lay opinions to be adduced;id. § 80(b) abolishes the common knowledge rule. The Evidence Acts in New South Wales and the Commonwealth, both based on a model code of evidence that has been proposed for adoption throughout Australia, have only minor variations.

  66. Elizabeth Sheehy,Legislating Justice for all Women: Canadian Women’s Struggle for Democratic Rape Law Reforms, 6 Austl. Feminist L.J. 87, 108 (1996).

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  67. In Canada, the Supreme Court has held that where the confidential material is in the possession of the Crown, as opposed to a third party, concerns about privilege disappear as the law of disclosure compels its production to the defense. R. v. O’Connor, [1995] 4 S.C.R. 411, 130 D.L.R.4th 235, 247–51 (Can.) (Lamer, C.J.C., & Sopinka, J.). Seesupra text accompanying note 35. In Australia, the obligation of disclosure on the Crown is less onerous. R. v. Lawless, 142 C.L.R. 659 (Austl. 1979). It has been suggested that the law is outdated since it does not reflect the High Court’s development of the common law right to a fair trial. Jill Hunter & Kathryn Cronin,Evidence, Advocacy, and Ethical Practice 199 (1995).

  68. O’Connor, 130 D.L.R.4th at 299 (L’Heureux-Dubé, J.); Sheehy,supra note 67, at 105–06.

  69. See the definition of "relevance" in Evidence Act, 1995, § 55 (Austl. N.S.W. & Commw.).

  70. Director of Public Prosecutions v. Morgan, 1976 App. Cas. 182 (Eng. H.L.); Pappajohn v. R., [1980] 2 S.C.R. 120 (Can.). The Court of Criminal Appeal of New South Wales has held that the accused’s inadvertence to another person’s consent could constitute recklessness for the purpose of sexual assault. R. v. Tolmie, 37 N.S.W.L.R. 660 (N.S.W. Crim. App. 1995) (Austl.). Although qualifying theMorgan principle, this decision did not disturb the rule that apositive mistaken belief in consent (however unreasonable) precludes liability for rape.

  71. Sexual assault laws and procedures are rarely evaluated against the right to equality or equal protection of the law. For an analysis of the potential role that the constitutional right to equality may have in the development of Canadian sexual assault law, see John McInnes & Christine Boyle,Judging Sexual Assault Law against a Standard of Equality, 29(2) U.B.C. L. Rev. 341 (1995).

  72. For example, the recently revised Code of Ethics of the Australian Medical Association recognizes an exception to patient confidentiality where the doctor is required to disclose by an order of the court. As Ford,supra note 53, at 158, concluded, "Under this framework there is no ethical obligation or expectation on doctors to assert privilege in appropriate cases."

  73. Laurence,supra note 22, at 1235. A similar assessment has been made of the equivalent New South Wales rape shield provisions.See generally Jenny Bargen & Elaine Fishwick,Sexual Assault Law Reform (1995).

  74. Solosky v. R., [1980] 1 S.C.R. 821 (Can. 1979); R. v. Derby Magistrates’ Court,ex parte B, [1996] 1 App. Cas. 487 (H.L. 1995) (Eng.).

  75. Baker v. Campbell, 153 C.L.R. 52 (Austl. 1983). The absolute nature of this rule, which is one of law rather than evidence, was reaffirmed in R. v. Carter, 81 A. Crim. R. 19 (Austl. 1995). The protection is codified in some jurisdictions as a client legal privilege. Evidence Act, 1995, § 118 (Austl. N.S.W. & Commw.).

  76. E.g., Marks v. Beyfus, [1890] 25 Q.B. 494 (Eng. C.A.); R. v. Lalonde, 5 C.C.C.2d 168 (Ont. High Ct. 1971) (Can.); R. v. Blain, 127 C.C.C. 267 (Sask. C.A. 1960) (Can.).

  77. R. v. Seaboyer, [1991] 2 S.C.R. 577, 607 (Can.). Note, however, that courts in both Australia,Carter, 81 A. Crim. R. 19, and the United Kingdom,Derby Magistrates’ Court, [1996] 1 Appl. Cas. 487, characterize the lawyer-client privilege in absolute terms, as discussed below.

  78. 81 A. Crim. R. 19.

  79. The common law position has been modified by Evidence Act, 1995, § 123 (Austl. N.S.W. & Commw.), which ensures that a defendant in a criminal proceeding may adduce confidential communications and documents except where they relate to communications between, or documents prepared by, a co-accused and his or her lawyer.

  80. Carter, 81 A. Crim. R. at 24 (Brennan, J.) (noting that the privilege cannot be invoked for an illegal purpose);see also Evidence Act, 1995, § 125 (Austl. N.S.W. & Commw.).

  81. Carter, 81 A. Crim. R. at 26 (Deane, J.).

  82. Evidence Act, R.S.C. 1985, ch. C-5, § 4(3) (Can.). Provincial legislation also creates a spousal communications privilege in civil proceedings.

  83. Charter of Human Rights and Freedoms, R.S.Q. 1977, ch. C-12, § 9 (Can. Que.).

  84. Evidence Act, R.S.N. 1970, ch. 115, § 6 (Can. Nfld.).

  85. Medical Act, R.S.Q. 1977, ch. M-9, § 42 (Can. Que.).

  86. In New Zealand and in some Australian jurisdictions, public interest immunity is now governed by statute. Evidence Amendment Act (No. 2), 1980, § 35 (N.Z.), provides the courts with a discretionary power to excuse any witness from answering any question or producing any document where the public interest in the preservation of confidentiality outweighs the public interest in having the evidence disclosed;see also Evidence Act, 1995, § 130 (Aust. N.S.W. & Commw.).

  87. The categories of evidence protected by public interest immunity are not closed. Recent English cases have extended the immunity, for example, to confidential social services files, Gaskin v. Liverpool City Council, [1980] 1 W.L.R. 1549 (Eng. C.A.), and police complainant files, R. v. Chief Constable of the West Midlands Police,ex parte Wiley, [1995] 1 App. Cas. 274 (H.L. 1994) (Eng.).

  88. "Public interest immunity is not a privilege which may be waived by the Crown or by any party." Air Canada v. Secretary of State for Trade (No. 2), [1983] 2 App. Cas. 394, 436 (Eng. H.L.) (Lord Fraser);see also Lonrho Plc. v. Fayed (No. 4), 1994 Q.B. 775, 793–94 (C.A. 1993) (Eng.) (Roch, L.J.); Australian Securities Comm’n v. Zarro (No. 2), 34 F.C.R. 427 (Fed. Ct. 1992) (Austl.).

  89. In England, where evidentiary material (testimonial or documentary) is prima facie subject to public interest immunity, ordinarily it is the courts, rather than the prosecuting authorities, that should decide whether or not to disclose the material on the balance of competing public interests. R. v. Horseferry Road Magistrates’ Court,ex parte Bennett (No. 2), 99 Crim. App. 123, [1994] 1 All E.R. 289, 294 (Eng. Q.B. Div’l Ct.). There are, however, cases where the balance will be clear, and provided that certain guidelines are observed, voluntary disclosure by the prosecution is permissible.Ex parte Bennett, [1994] 1 All E.R. at 297.

  90. Jaffee v. Redmond, 116 S. Ct. 1923 (1996). Justice Stevens, delivering the opinion of the Court, highlighted the significant private and public interests supporting a privilege for confidential communications made in the course of psychotherapy, including the concern that disclosure would impede treatment and that the mental health of the nation’s citizens is a public good of transcendent importance.

  91. R. v. Beharriell, [1995] 4 S.C.R. 536, 130 D.L.R.4th 422, 450–51 (Can.).

  92. R. v. Seaboyer, [1991] 2 S.C.R. 577, 607 (Can.). In R. v. Keane, 99 Crim. App. 1 (C.A. 1994) (Eng.), a claim of public interest immunity could not be upheld where the material might prove the accused’s innocence or prevent a miscarriage of justice.

  93. Annie Cossins et al., N.S.W. Working Party Concerning the Confidentiality of Counsellors’ Notes,Recommendations for the Protection of Counsellors’ Notes in Sexual Assault Court Matters 4–10 (1996).

  94. Epidemiological Studies (Confidentiality) Act, 1981, § 8(1) (Austl.); Epidemiological Studies (Confidentiality) Act, 1992, § 8(1) (Austl. A.C.T.), provide: A person who has assisted, or is assisting in the conduct of a prescribed study shall not be required— (a) to produce in a court, or permit a court to have access to, a document prepared or obtained in the course of that study, being a document concerning the affairs of another person; or (b) to divulge or communicate to a court any information concerning the affairs of another person acquired by the first-mentioned person by reason of that person having assisted, or assisting, in the conduct of that study.

  95. This legislation is discussed in Simon Bronitt,Criminal Liability Issues Associated with a "Heroin Trial" 40 (National Center of Epidemiology and Population Health, Canberra, and Australian Institute of Criminology, Canberra, Feasibility Research into the Controlled Availability of Opioids, Working Paper No. 13, 1995).

  96. Dietrich v. R., 177 C.L.R. 292 (Austl. 1992).

  97. Seesupra note 52 and accompanying text.

  98. Jago v. District Court of New South Wales, 168 C.L.R. 23, 49 (Austl. 1989) (Brennan, J.).

  99. McInnes & Boyle,supra note 72, at 360, have suggested that these reforms in Canada "should incidentally reduce the demand for past sexual history."

  100. This follows the approach taken in Criminal Code § 278.3 (Can.). In New South Wales, Evidence Amendment Bill, 1997,supra note 57, cl. 126H, applies to civil and criminal proceedings, and the latter specifically includes committals.

  101. Seesupra notes 95–96 and accompanying test.

  102. Evidence Amendment Bill, 1997,supra note 57, cl. 126K, envisages this power to suppress part of the evidence.

  103. See Cossins et al.,supra note 94, at 5–11.

  104. Seesupra note 5. A recent empirical study of rape law reform in Victoria reported similar data. Attorney General’s Legis. & Pol’y Branch, Victoria,Report No. 2, The Crimes (Rape) Act 1991 (1997).

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Authors and Affiliations

  1. Australian National University, Canberra, Australia

    Simon Bronitt (Senior Lecturer in Law)

  2. Monash University, Melbourne, Australia

    Bernadette McSherry (Senior Lecturer in Law)

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LL.B. (hons.), University of Bristol 1988; LL.M. (hons.), University of Cambridge 1989; Associate, Australian Institute of Criminology, Canberra, Australia. This research was funded by a Canadian Studies (Faculty Research) Award in 1996, and an Australian Research Council Small Grant in 1995. We would like to thank Paul Hibberd and Susanna Ford for their research assistance.

B.A. (hons.), University of Melbourne 1984; LL.B. (hons.), University of Melbourne 1984; LL.M., University of Melbourne 1990; D. Jur., York University 1996. Part of this article was written during a visiting fellowship at the Faculty of Law, Australian National University.

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Bronitt, S., McSherry, B. The use and abuse of counseling records in sexual assault trials: Reconstructing the “rape shield”?. Crim Law Forum 8, 259–291 (1997). https://doi.org/10.1007/BF02677785

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