Jennifer BOIROT is a doctoral student at the CESDIP and Temporary Teaching and Research Assistant (ATER) at the University of Versailles-Saint-Quentin-en-Yvelines. She is completing a thesis on the evolution of the role of forensic psychiatrists in sexual violence cases in Europe.

“PSYCHIATRIC EXPERTISE, LEGAL TRUTH, AND SEXUAL CRIMES IN EUROPE”

Under the guidance of Professor Xavier CRETTIEZ (University of Versailles Saint Quentin en Yvelines)
Student : Jennifer BOIROT – PHD Student in a Political Science and Communication Doctorate to be completed at the end of 2012.

Aim of the research :

Psychiatric and psychological expertise

in sexual crimes cases in England, Spain,

Rumania, Sweden, and France.

  •  Presentation of the subject

As regards criminal matters the entire penal process tends to the discovery of what should be called Judicial Truth. Each of the parties at the trial, each of the actors of the judicial and penal system, offers elements enabling the reconstruction of the circumstances – not always of reality but of a reality, not of the truth, but of a truth : the judicial truth, which, once the penal process has been completed, will be considered as authoritative. However, to be able to judge, one must ask oneself questions, investigate, research, and piece the facts together to understand.

That is the work asked of the multiple actors of the penal and judicial process. For the revelation (or finding) of facts at the criminal trial, all the professionals of the judicial system act or interact with the same aim in mind : recompose the facts, explain the reality, and render justice in the name of truth.

The meaning and the scope of the criminal trial have undergone a notable ideological evolution. For the contemporary justice system, establishing the truth of a crime is no longer just determining its author and applying a legal sanction, but also understanding the motives of the crime in order to better supervise the deviant.

The advent of psychiatry and psychology has enabled experts of the discipline to bring key elements into the explanation of facts and their judicial treatment, elements which had until recently been lacking.

Whatever the national procedure studied, the evolution of the missions assigned to psychiatric and psychological experts raises the question of the very nature of expertise, its legal qualification (is it becoming evidence ? what do we wish to expertise ? what do we wish to prove ?), and the credit it is granted.

In the five countries studied, the procedures have three judicial stages in common : the judicial investigation phase and pre-trial measures ; the trial itself ; and the post-sentencing measures imposed (imprisonment, court-ordered treatment, and social and judicial supervision).
At each of these stages, we will have to raise the question of the stakeholder’s expectations (whether it is – depending on the national procedures in place – the public prosecutor, the investigating judge, the presiding judge, or the parties), and the specific problems encountered.

  •  Psychiatric and psychological expertise in the pre-trial stage

Although the traditional actors of the penal and judicial system retain an essential position and role in the reconstruction of judicial truth, other actors have gradually imposed their presence, to the extent that some of them have become an essential mechanism to the understanding of the facts and accordingly for the supervision of sexual offenders.

The increasing reliance on psychiatric and psychological experts is part of this evolution. Although of a purely medical nature at first, the mission of experts has now largely evolved.
Initially, experts were there to say whether the subject suffered from a psychological or neuropsychological disorder that had altered or abolished the control of their actions. In other words, the idea was to assess the penal responsibility of the accused. Today, experts are also requested to give their opinion of the person accused, to establish a “prognosis” on the risks of a relapse, to gauge the subject’s possibilities for rehabilitation and the need for a court-ordered medical treatment.

What discretion do experts have in the appreciation of the requested “prognoses” (evaluating the risks of relapse and orders for medical treatment) when they write their report ?
At the national levels, are there typical frames for the missions conferred on the expert and in turn, for the reports submitted by the expert ? Can we highlight common work methods for the five countries studied ?

Experts execute legal warrants. They have a public service mission and are thus a particularly precious help for the proper administration of Justice. Does this French reality apply to the other four European countries chosen for our study ? What consequences does the expert’s status have on the questions of the choice of the expert by the parties to the trial, and as regards the expert’s independence, responsibility, and costs ? In what circumstances can a psychiatrist be called in, by whom and under what conditions ? What are magistrates’ expectations towards psychiatric and psychological expertise during the preliminary phase of the trial ? What do such expertise missions contribute ?

We will also explore experts’ perception of their own mission, and the difficulties they face in writing their reports – How can one write the requested scientific report in a language that is sufficiently intelligible to be understood by all the actors in a trial ?
How can one assess the dangerous nature of the accused, and what are the difficulties and obstacles encountered ? What real influence do psychiatric and psychological experts’ findings have on the rest of the procedure ? What is the position assigned to psychiatric experts in the five countries covered and how can they impose a voice of authority within the judicial and legal framework they are working in ?

  •  Psychiatric and psychological expertise in the sentencing stage

Material evidence and scenographic statements are not always enough to demonstrate all the constitutive elements of an offence or a crime. An offence or a crime is (as a general rule), made up of a material element and an intentional element (general or special intent). Although in matters of sexual crimes the material element seems easier to establish, both require complex work.
Indeed, many cases of sexual violence are revealed years after the facts, and there are cases when it is impossible to gather evidence of precise traces or clues (medical exams, DNA, witnesses…). This makes establishing the Truth a particularly difficult task.

Psychiatric and psychological analyses of the accused as of the alleged victim, going over their experiences, their personalities, their possible disturbances, are precious elements for the parties in a trial (lawyer for the defence or the plaintiff, or public prosecutor). This seems particularly true for the jury, who have no knowledge of the case before the trial opens and who discover its elements as the hearing progresses.

In this context, testifying at the bar can quickly become a genuine ordeal for the practitioner, who undergoes a harrowing interrogation. All the actors of the trial try to make the most of the expert’s statements, so to what extent do practitioners manage to remain in their sphere of competence when confronted with the pressing expectations of each of the parties ? What are the special characteristics of the expert’s oral testimony during a trial ?

We will also focus on what the Court expects of the expert during the trial, in order to understand the extent to which the information revealed may influence the construction of the Court’s firm belief in the facts and have a role in the decision it renders.

During these first two stages of the legal process, ethical and deontological issues deserve to be raised : when the facts are not manifest, and the person durably denies they took place, what discretion do experts have in response to routine questions ?
How can we address the issue of the credibility of expertise missions and that of the claims made by the authors and victims who undergo an expertise ?
What recommendations can we make on the basis of this comparative study ?

  •  Psychiatric and psychological expertise in the post-sentencing stage

The handing down of the verdict does not put an end to the investigations by the psychiatric and psychological experts but, for the practitioner, it is understood rather as a kind of conditional release. Indeed, with the changes in public policies as regards the prevention of relapse, namely in matters of sexual offenses, the psychiatrist’s and psychologist’s mission lasts well beyond the doors of the courthouse.

Faced with media and judicial scandals, European authorities have wished to reinforce the fight against sexual violence and improve relapse prevention.

The legislator’s intention, (a will that is common to all five countries studied), is namely put into practice with the implementation of multi-disciplinary teams that intervene at the heart of penitentiary establishments. In order to reinforce the “professionalization” of these teams when it comes to supervising sexual offenders and fighting against relapse, penitentiary establishments are encouraging the development of increasingly precise evaluation tools for criminology. The result of the reports, that assess the dangerous nature of the sexual criminal, are aimed at providing insightful information to the judicial authorities.

Thus, are we witnessing the development by penitentiary administrations of a new form of expertise ? One that no longer derives solely from certified expert-psychiatrist or expert-psychologists’ criminological analyses, but also from “mere” psychiatrists or psychologists who intervene in the penitentiary environment within multi-disciplinary teams and draw their expertise from the routine practice of criminological evaluation and from the tools and methods set up to assess the imprisoned sexual offender ?

In this context, what is the place of the “traditional” psychiatric or psychological expert in the post-sentencing assessment of sexual offenders ?

Does this polysemic interpretation of the notion of “post-sentencing psychiatric and psychological expertise” (stricto sensu judicial expertise and expert practice) exist in the other four countries studied ? What role do psychiatric experts play in the last stage of legal and judicial proceedings in Sweden, the United Kingdom, Spain, and Rumania ? What is the content and objective of expertise missions carried out in each country ? The answer to these questions should help us understand the stakes at play in criminal psychiatric and psychological expertise in the post-sentencing phase, especially when considered in terms of public policies of relapse prevention at the European level.

  •  Work methods and expected results

After having studied the work methods of psychiatry and psychology experts in the five countries concerned, we should give more weight to the information with an analysis of real practices.

Two methods will be preferred :
– Regarding the expert’s role in the pre-trial phase : consulting judicial files, observing hearings and conducting interviews with the various actors involved (experts, magistrates, lawyers…) This operation will be repeated in each of the countries considered.
– Regarding the sentencing and post-sentencing phase : analysing the means, observing the implementation of decisions in situ (namely : court-ordered treatments, assessment of the convict during the detention period, pre-release expertise). This operation will be repeated in each of the countries in order to understand the process of psychiatric expertise in the implementation of public policies for the prevention of criminal relapse.

  •  Expected results

The proposed study will enable us to draw up a sociology of the profession of psychiatric experts in Sweden, the United Kingdom, Spain, Rumania, and France : their training, qualifications, conditions for certification, and codes of ethics.

We will make a comparative study of the rules of criminal procedure – as regards psychiatric and psychological expertise – in matters of sexual crime ; and will study the role of expertise within the penal and judicial process as well as its consequences.

Our aim will be to :
– Understand the interactions and issues raised by psychiatric and psychological expertise within the penal and judicial process in matters of sexual crime.
– Draw up a state of play of existing national procedures in order to highlight the assets and weaknesses of national procedures in force.
– Put forth proposals valuing cross-border cooperation and tending to a European harmonisation of psychiatric and psychological expertise within the penal and judicial process in matters of sexual crime.
– Reflect on the evolutions to come in the practice of penal psychiatric expertise : on the training of psychiatrists and psychologists, but also as regards finding criteria of attractiveness aiming to encourage practitioners’ engagement in expertise.