According to Barry, in order for Virginia’s medical records to be discoverable, the defense must prove that her “memory/ability to recall events [is] an issue”, adding that “I can see a judge allowing discovery of any records relating to memory issues.” However, he adds, “I think most judges will not permit a broader scope of medical records, as this can be viewed as a ‘fishing expedition’ [AKA a non-specific search for information].”
“The court will be very careful not to give the defense free reign of all her medical history – only that which is directly relevant to this lawsuit. Courts are, and should be, protective of allowing access to mental health history.
“However, if there’s a legitimate showing that Virginia’s records may address/discuss a memory condition, I believe a judge would rule them discoverable. Any time a litigant’s position is contrary to what’s contained in his/her prior medical/mental health records, an attorney will try to discredit the witness’s credibility. This is frequently done in litigation.”
GLAMOUR also spoke to Ruth Peters, a solicitor and director at Olliers Solicitors, about the legality of accessing the complainant’s medical records during trials in the UK.
Firstly, Ruth notes, the “vast majority of trials involving allegations of sexual assault are criminal trials,” adding that it’s “rare for there purely to be a civil trial relating to an allegation of sexual assault [as is this case with Prince Andrew].”
In criminal cases, it’s up to the prosecution to prove the defendant’s guilt “beyond reasonable doubt” and the defendant risks a punishment, such as a prison sentence. Conversely, in a civil trial, the burden of proof falls on the accuser (the plaintiff) to show that “on the balance of probabilities” they have suffered harm due to the defendant’s actions.
Ruth explains, “It seems that Prince Andrew’s lawyers have put forward a defence that the allegations put forward arise as a result of false memories i.e. that the act(s) did not take place but the complainant genuinely believes that they did.”
“One would usually expect when such a defence is being forward for there to be expert evidence i.e. for the defence to instruct an expert who can address the jury in terms of the development of false memories and the concept itself. The expert would also need to address any specific evidential issues in the case i.e. counselling notes and to question whether the evidence can properly be classified as a recovered memory.”
Does this mean that the complainant’s medical and mental health records can be examined in court? Ruth explains, “It is not unusual for the defence to make an application for third party disclosure of a victim’s sensitive and private medical records in criminal proceedings,” adding that it makes no difference whether the medical files are with a private or public health provider.
“In any case,” Ruth adds, “where a complainant’s mental health may be relevant, the defence can make an application for certain medical records pertaining to the same to be disclosed. The application would be considered by the prosecution and if not agreed then would be for a judge to make directions as to whether the same can be disclosed.