A representative for Kansas prosecutors told lawmakers Wednesday they should ban the “archaic,” ”biased“ and ”shameful“ practice of ordering psychiatric exams for victims of rape and other sexual abuse.
Kansas case law that allows for the court-ordered exams is based on a 1940 legal treatise that claimed a woman's "social history and mental makeup" should be considered by a jury to determine her truthfulness, said Kim Parker, coordinating prosecutor for the Kansas County and District Attorneys Association.
Eighty years later, Parker said, society should know better.
"We ask that you close that door because it is extremely invasive and because there are no known mental examinations that determine the truthfulness of a report of sexual assault," Parker said.
The Senate Judiciary Committee is considering legislation that would prohibit requirements for a complaining witness to undergo a psychiatric or psychological examination in cases involving sex-related crimes.
Parker said the orders are rare but that there is an example within the past five years of a judge in Kansas ordering an evaluation for a child victim of sexual abuse.
The court-ordered evaluations serve no purpose but to harass and insult a victim of sexual assault, she said. The exams aren’t ordered for any other type of victim.
Sara Rust-Martin, policy director for the Kansas Coalition Against Sexual and Domestic Violence, said many victims of sexual assault suffer trauma from their attack. Perpetrators shouldn’t be allowed to benefit from their illegal conduct, she said.
“Requiring a victim of a sexually violent crime to submit to such an intrusive examination that could be used to discredit said victim in a criminal trial is institutionalized victim-blaming,” Rust-Martin said.
Jessica Glendening, of the Kansas Association of Criminal Defense Lawyers, suggested an alternative for reforming state law.
Glendening agreed it is problematic to single out victims of sexual assault cases. The best way to resolve this problem, she said, is to allow court-ordered psychological evaluations in any case.
Mental health professionals can offer valuable insights, Glendening said, in rare instances where there is a a concern about psychological issues. Her proposal is to give the court guidelines that would set a high standard for instances where an evaluation could be required. Judges would have to consider things like whether there is corroborating evidence and whether the witness demonstrates mental instability.
“The evaluations typically are a general psychological evaluation to determine whether there is an underlying issue impairing the witness’ ability to tell the truth,” Glendening said. “They are not a therapy session where the complaining witness must rehash the incident giving rise to the criminal charge.”