Sexual Assault and Abuse Emotional Injuries - How does the victim prove her/his injury where the harm suffered is most frequently emotional trauma? Personal injury cases most frequently involve physical injuries - bone fractures, burns, lacerations, for example. The emotional injuries caused by a sexual assault are less visible but no less real or harmful. These emotional injuries are often present more difficulty in recovery and are resistant to treatment efforts. Proof in court of emotional injuries most often requires the testimony of treating and/or consulting psychiatrists or mental health counselors. In addition, the testimony of the victim, family members, teachers and others might be used to complete the picture for judge or jury of the extent of the emotional injury caused by the sexual assault. One difficult issue that consistently arises is the extent of the inquiry that the defendant, whether the perpetrator, his employer or other party, can make into the mental health history of the victim. In a civil claim for damages, courts generally find that bringing the claim for emotional damages waives the usual privilege that attaches to mental health records and counseling. Massachusetts General Laws Chapter 233 Section 20B says that the mental health confidentiality privilege does not apply, "...(c) In any proceeding, except one involving child custody, adoption or adoption consent, in which the patient introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected." Therefore, it is important for a victim to understand before bringing an emotional damage claim that all his or her mental health history will be open to examination by the defendant's lawyers. The defendant's lawyer will have access to all the mental health records and may seek to take deposition testimony of the treating mental health care providers. As uncomfortable as this may sound, an attorney experienced in representing the victims of sexual assault and abuse usually can make this pretrial discovery process less intrusive and intimidating. Preparation by obtaining and reviewing all the treatment records of the victim and meeting with each of the providers who are to be deposed can go a long way toward making the process go smoothly. The message should be that the process of pretrial discovery and trial itself should not prevent any victim from asserting his or her rights and having those rights enforced legally through the court system.
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