Originally published by Kansas Reflector on March 13, 2021:
TOPEKA — The Kansas Legislature will decide whether to keep a decades-old law that allows courts to order victims of alleged sex crimes to undergo mental health evaluations.
Such a decision hinges on the passage of a bill that would prohibit any Kansas court from requiring psychiatric or psychological examinations of a victim of an alleged crime.
In a House Judiciary Committee hearing held on Thursday, advocates spoke in need of the bill, which they said would prevent sex crime victims from undergoing unnecessary and re-traumatizing processes. The bill originated in the Senate, where it passed without opposition in late February. A version of the bill was close to passing last session, which was cut short by the pandemic.
“An individual’s mental health should really never be a factor in whether or not they are allowed to see justice for a crime that’s been committed against them,” said Lindsie Ford, a staff attorney for the Kansas Coalition against Sexual and Domestic Violence, during the hearing. “Whether it be a violent crime or a sexual assault, nobody should be hindered from accessing the court system or being treated respect by the courts because they have some sort of psychological symptoms.”
Ford, who spoke in favor of the bill, said being the victim of a crime can cause trauma and various post-traumatic stress disorders that could be reflected in a psychological examination. Because of that, an alleged victim’s symptoms that we’re caused by the crime could be used to undermine the prosecution of the crime that caused them.
She said this kind of exam is invasive for victims who have already been violated by the crime in question.
“Asking them to undergo even further violation of their sense of self is just not something that I hope the state of Kansas wants to be involved in,” she said.
Todd Thompson, the Leavenworth County Attorney and legislative chairman for the Kansas County and District Attorney Association, said current law allowing for psychological exams places an additional burden on victims of sex crimes, who are often women and children, that is not required for any other type of criminal case.
“It is archaic. It is misogynistic. It is just unfair that they have to go through this,” he said.
The Kansas County and District Attorney Association said the law, which when used is known as a Gregg motion, stems from case law the Kansas Supreme Court relied on in deciding the 1979 State v. Gregg case. The law in question allows for psychiatric interviews in sex cases because of the antiquated idea that women or girls falsely accuse a person of a sex crime because of a psychological condition that “transforms into fantasy, a wishful biological urge.”
In addition to the Kansas Coalition Against Sexual and Domestic Violence and the Kansas County and District Attorneys Association, the Children’s Advocacy Centers of Kansas is in favor of the bill. The Kansas Association of Defense Attorneys provided neutral testimony, and no organizations spoke against the bill.
Rep. John Carmichael, a Wichita Democrat, asked Thompson if the proponents of the bill could provide an estimate of how many times this is used, because in his experience, he said, judges approving an order for this kind of evaluation are “rare.”
“This is probably the fourth year I’ve heard this type of legislation in one fashion or another. I would think that by now prosecutors could tell us how frequently this happens, because I suspect it’s only a handful of times and my guess is there may be genuine reasons,” he said.
Thompson said there are three of these requests ongoing in his district in Leavenworth, but even one is too many. Thompson said there are plenty of ways the justice system insures those accused of sex crimes get a fair review of their case.
“The veracity of a sexual assault victim should be subject to the same tests as all other victims, solid investigations, a prosecutor’s careful review of the facts, through cross examination and the determination by a court or jury as to the credibility of the evidence and testimony,” he said.
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