Question: Can psychiatric evidence from an alleged victim be used in a sex crimes case in Wisconsin?

Answer: There are many reasons why a person might be falsely accused of sexual assault and common sense would tell you that at least some false reports are the result of an accuser’s mental illness. This is something that we do see and it’s not unusual for an accuser’s psychiatric or psychological records to contain information that can shed some light on the reasons for false accusation.

So, the problem is that mental health records, like other medical records, are confidential. We all have the right to refuse to disclose the content of our medical records. In general, this is a good thing. But this right to privacy can sometimes conflict with the right of a person to defend himself in court.

So when that happens, different states handle that content differently. Wisconsin has a system in place where you can file a motion asking the judge to order that the accuser turn over the records to the court. And you can’t do this in every single case; you have to do some investigation, you have to present the judge with really good reasons to believe that the records have information that’s vital to the defense. And if the judge orders that the records have to be released, they don’t just go straight to you, they don’t go straight to the defense—the judge gets them first. The judge gets the records and then the judge only releases the records that actually relate to the case.

The idea is that the defense, the accused, shouldn’t be able to dig around in everybody’s private medical records all they want. But if there are legitimate reasons to think that the records are important, then they should be released. So if you or someone you know is facing a sexual assault accusation, it is very important that you have an attorney that knows how to do the right investigation and file the right motion to get the information you need to present your defense.

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