Two Roads Converge: The Interchange between the Mental Health and Legal Discourses in Sexual Assault Trials
Social and Legal Studies 2022
35 Pages Posted: 23 Aug 2022
Date Written: August 10, 2022
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.
Funding Information: None to declare.
Conflict of Interests: None to declare.
Ethical Approval: The interviewees were selected after receiving ethical approval from the institutional review board, Faculty of Social Welfare & Health Sciences Ethics Committee, The University of Haifa, approval number: 338/16
Keywords: critical discourse, theralegal discretion, mental health expert witnesses, sexual assault trials, therapeutic jurisprudence
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