Two Roads Converge: The Interchange Between the Mental Health and Legal Discourses in Sexual Assault Trials. (June 2023)

• Record Type: Journal Article
• Authors: Cohen, Inbar; Gal, Tali; Enosh, Guy
• Is Part Of: Social & legal studies. Volume 32:Number 3(2023)
• Page Start: 441
• Page End: 463
• Publication Date: 2023-06
• Subjects: Critical discourse -- theralegal discretion -- mental health expert witnesses -- sexual assault trials -- therapeutic jurisprudence; Sociological jurisprudence -- Periodicals; 340.115
• DOI: 10.1177/09646639221117388
• Languages: English
• ISSNs: 0964-6639

Abstract

Disciplinary differences between mental health and legal discourses limit the implementation of mental health knowledge (MHK) in legal proceedings. This study examined the interchange between these discourses, focusing on sexual assault cases that required testimonies of mental health expert witnesses (MHEWs) in Israel. 42 multi-perspective interviews including 16 MHEWs and 26 legal practitioners were analyzed using critical discourse analysis. Participants' statements relayed three depictions of the interchange between mental health and legal discourses: a dichotomized one, which regards both discourses as incompatible; a tactical one, which regards MHK as beneficial when serving legal interests; and a radical one, which regards MHK as imperative to legal discretion, placing therapeutic considerations ahead of legal ones. The study provides a first empirical analysis of the law-mental-health interchange. In particular, it identifies an emerging practice of therapeutic-legal ("theralegal") discretion, which reflects an understanding that legal considerations alone cannot address complex criminal legal issues.