In R v E, unreported 27 June 2011, the Court of Appeal upheld a conviction for sex offences where the prosecution had relied upon psychological evidence which was said to be consistent with sexual abuse having occurred.
Facts: E denied sexually abusing the complainant and his defence was that the allegations were a complete fabrication. The complainant was examined by a forensic psychologist who reported that C had symptoms consistent with prolonged sexual abuse.
The psychologists report was reduced to the following agreed admissions:
1. CH was interviewed by Dr Lee Hogan, a clinical psychologist, on 14th April 2010.
2. Dr Hogan’s assessment of C is that although she does not meet the criteria of PTSD in response to a single event, the presentation is consistent with a PTSD reaction called type two trauma.
3. Repeated prolonged trauma such as extensive child abuse is considered to be type two trauma.
The defence contended that the symptoms were equally as consistent with the disharmony that existed between C and her mother.
The trial judge summed up in this way:
Now members of the jury, what he does not say is that her account is true, that’s for you to decide not him. He does not even say that the symptoms are necessarily related to a history of child sex abuse, merely that the symptoms are consistent with some long term repeated events. That’s all he says.
You can accept or reject his opinion, his expert opinion, that’s up to you, in fact you only have his opinion. But if you accept it, it’s certainly up to you to decide how much it helps you to decide whether these allegations are true or not. How much it helps you or indeed if it helps you or indeed if it helps you at all, that’s for you to decide.
The Jury convicted.
Held: In this court, Mr McGarry repeats the submission that the evidence of the psychologist was not admissible and took the form of oath-helping (that is to say was no more than evidence to the effect that the account of C was believable and credible). In our judgment, however, although the learned judge did not approach the matter in this way in his ruling, admissibility could have been better analysed and justified on the grounds that it provided evidence of psychological injury in exactly the same way as any doctor might give evidence of physical injury consistent with a particular allegation. It was thus relevant material for the jury to take into consideration when considering where the truth lay. Were the jury sure that the PTSD found by the psychologist to be present was explained by reference to her complaints or could it have been a consequence of the marital disharmony as submitted by the defence?
Comment: There is a considerable body of literature on this subject, including my own article which can be read here:
http://crimeline.info/app/download/5046819281/rape+trauma+syndrome.pdf
The references at the end of that article will guide you to more reading, including the Home Office consultation paper from a few years ago.
For those interested in this topic there is a superb chapter (chapter 23) in the latest edition of Rook and Ward, written by Dr Fiona Mason.
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