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.
Introduction: Court testimonies of mental health expert witnesses (MHEWs) received scholarly attention regarding paradigmatic differences, and ethical issues, neglecting the testimony experience. The study examines MHEWs’ testimony experience in sexual assault proceedings in Israel. Methods:16 interviews. MHEW were recruited using chain referral sampling. Interviews were analyzed based on the constructive dialectical model. Results: Three main themes were conceptualized: MHEWs’ initial image of the court, their perception of mental health and legal languages, and their perception of court conduct as a theatrical play. The themes address the experience of tension between law and mental health along with an unprecedented experience of congruence that emerges when: 1. MHEWs based their testimonies on evidence-based tests and therapeutic interventions which value objectivity, as opposed to focusing primarily on the subjective experience, accommodating the evidence-based legal debate; 2. When MHEWs and legal practitioners formed an interpersonal connection, in accordance with key relational therapeutic elements.
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