The Impact of Trauma on Adult Sexual Assault Victims
PART IV – Promising Practices: Why We Need a Trauma-Informed Criminal Justice System
This section discusses why a trauma-informed criminal justice system enhances the processing of sexual assault cases. This section also outlines promising practices that criminal justice professionals can put into place for trauma-informed investigations and prosecutions of sexual assault cases.
Victims Have Low Expectations of Police When They Report Sexual Assault
The overwhelming majority of sexual assaults in Canada are never reported to the police. Findings from the 2014 General Social Survey (GSS) reveal that more than eight in ten (83 percent) of sexual assault incidents were not reported to the police. (Conroy & Cotter, 2017) This finding is consistent with the 2004 GSS, which showed that 88 percent of sexual assaults went unreported to the police. (Gannon and Mihorean, 2005)
However, there is a social expectation that “ideal,” “real,” and “credible” victims of sexual assault should report their experiences of sexual assault to the police and follow through the criminal justice system. This is an unrealistic and unreasonable expectation for multiple reasons: the victim’s sense of shame and stigma, compounded by a victim-blaming society, along with fear of what might happen to the perpetrator if the assailant is someone they know.
One of the major reasons for the extremely low reporting rate of sexual assault is victims’ lack of confidence in the police and the criminal justice system. (Conroy & Cotter, 2017) Taking a trauma-informed approach to the investigation and prosecution of sexual assault in the criminal justice system might reduce these difficulties.
It is important for police officers to recognize that disclosure is a process, not a one-time event. It is also important for police to recognize that disclosing sexual assault incidents, which victims often experience as humiliating and disempowering, is particularly difficult. This is especially true in a society where rape myths still exist.
One of the rape myths identified by the Supreme Court of Canada is that some women are “less worthy of belief” (R. v Seaboyer, 1991). Another dominant rape myth is that women and children are prone to “lie” about experiences of sexual assault and sexual abuse. These kinds of harmful beliefs and rape myths create a context of suspicion and doubt, making it particularly difficult for victims to report experiences of sexual assault. The fear of not being believed creates a profound barrier to disclosure for sexual assault victims.
Victims’ experiences of disclosing sexual assault to police or others is key to the investigation as well as to their recovery. As such, it is essential that police receive disclosures respectfully and patiently, in a way that empowers the victim. Professionals in the criminal justice system must receive specialized trauma-informed training in this area.
Promoting a Victim-Centred Approach to How the Criminal Justice System Processes Sexual Assault Cases
Taking a victim-centred approach to how the criminal justice system processes a sexual assault case means treating victim-witnesses with care and respect and recognizing the particular difficulties and needs facing those who have experienced this unique crime and the social stigma surrounding it. It means making a victim-centred approach a central priority in processing, clearing, and closing sexual assault cases.
According to many experts, the attitude conveyed by law enforcement is “the single most important factor in determining the success of the victim interview, and therefore the entire investigation.” (Archambault & Lonsway, 2007, p. 6) Effective sexual assault investigations require impartial, skilled, empathic, well-trained, and experienced investigators, who carefully document all the details of the crime and properly collect all available evidence. (International Association of Chiefs of Police, 2005) As one police captain observed about sexual assault investigations, “If you want justice, it is helpful to care for the victim.” (Human Rights Watch, 2013)
Why Standard Interrogation Practices Don’t Work with Sexual Assault Victims
We are in the midst of a sea change in the way police are conducting sexual assault interviews. This comes from the new knowledge and insights from the neurobiology of trauma and the best practices emerging from the field. It also comes from learning from the mistakes made in traditional interrogation practices, which should not be applied to victims of crime as they were developed to interrogate criminal offenders/suspects.
These standard interrogation practices emphasize establishing a timeline and key facts as soon as possible when it is believed that memory is “freshest” and most complete. Furthermore, in sexual assault cases, victim interviews with police often start with police skepticism, with a view to establishing whether or not the complainant is telling the truth. Footnote 10
This skepticism, however, does not reflect a position of neutrality but rather a position of doubt and suspicion. Standard interrogation practices therefore actually interfere with interviews, and can close down the flow of information necessary to investigate the assault. Examples of typical and problematic police approaches to testing victims during traditional approaches to sexual assault reports have included:
- asking sexual assault victims to repeat their narrative from different points in the sequence, for example, asking a victim to start the story from the end and tell it backwards;
- asking victims questions designed to confuse or test their narrative (as a way to assess its validity).
The effect of the police investigator’s attitude towards a victim, especially a sexual assault victim, is a very significant variable in a first encounter (and indeed any encounter). Victims often feel intimidated, ashamed, or afraid when police respond to them with detachment, harshness, disbelief, or dismissal.
Research (Holmberg, 2004) has demonstrated that sexual assault victims acknowledged omitting significantly more information during interviews with police officers they perceived as:
- impatient, and/or
Insufficiently trained police can contribute to assaulted women experiencing secondary victimization. If victims feel unsafe when questioned they may not be able to use their prefrontal cortex to understand the questions and retrieve certain memories. If victims feel traumatized by the questioning, it may trigger the retrieval of fragmentary sensations and emotions that are nearly as intense as those they experienced during the assault itself. Also, poor memory retrieval is associated with high levels of stress and high arousal, which in turn is associated with the prefrontal cortex being threatened.
Traditional Police Approaches to Sexual Assault Interviews Can Retraumatize Victims
Domestic violence and sexual assault victims frequently encounter police services that mirror the unequal power and control experienced in the abusive relationships that caused past trauma. This retraumatizes victims and is to be assiduously avoided. Instead, police should focus on making it easier for victims to recall and disclose the assault. This can include allowing the victim to make a delayed disclosure several days or weeks after the assault.
Too often, traditional police interviews involve too many interruptions when victims are giving statements about their sexual assault experiences. One study found that the average police interview had 3 open-ended questions and 26 close-ended questions with an average of only 1 second pauses between each question. (Fisher, 1995) Most detectives interrupted responses to open-ended questions after 7.5 seconds, with an average of 4 interruptions per response. Victims were not allowed to complete an interrupted response in any of the interviews studied. (Fisher, 1995) Interruptions are a fatal flaw in investigative approach and impede memory retrieval.
This has an extremely deleterious effect not only on victim well-being and willingness to disclose, but also on the quality of evidence and data available for criminal justice system processing of the sexual assault case.
Often traditional police approaches to victim interviews in sexual assault cases have focused on peripheral details, which are not easily recalled and may not even be relevant. Instead, police need to focus on central details which victims more often and more easily recall.
Sexual assault investigations and prosecutions require victims to cooperate fully. This, in turn, requires that victims trust that the criminal justice system will treat them with fairness and respect. Moving towards a trauma-informed criminal justice system approach to sexual assault investigations and prosecutions will help accomplish this. It will also help remedy the historical and contemporary difficulties and gender biases that have plagued sexual assault prosecutions, all part of the ongoing problem of under-reporting sexual assaults. Furthermore, trauma-informed interview approaches can teach police officers (as well as others in the criminal justice system) that victims’ difficulties talking about aspects of the experience, and perceived gaps or inconsistencies in their story, may actually be a combination of inappropriate investigation and questioning methods, along with a failure to understand the ways in which trauma affects how victims remember the sequence of events and their reactions to them.
Offering more support to victims and responding to them patiently and with respect increases their ability to retell what happened to them. This speaks to the importance of trauma-informed interviewing approaches by police officers, and trauma-informed questioning by lawyers in their roles as Crowns and defence counsel. It requires specialized training, which should also be made available to the judiciary. This kind of knowledge is not taught in law schools, which often don’t adequately cover the basics of sexual assault law and the fundamentals of affirmative consent law.
This leads to the conclusion that standard interrogation methods do not work well with trauma victims. This is empirically evident in the high rates of unfounded cases documented in Canada. (See Doolilttle, 2017a) Fortunately, many police forces in Canada are working to rectify this problem by adopting improved and more collaborative approaches to sexual assault investigations and case reviews involving the participation of victim services and women’s groups. (See Chartrand, 2011; Doolittle, 2017b, 2017c)
Best Practices for Trauma-Informed Police-Victim Interviews
Basic Listening Skills
Most people, including police, Crowns, or judges working in the criminal justice system, find it difficult to hear about traumatic events such as a rape, sexual assault, or other experiences of sexual violation or abuse. In a trauma-informed criminal justice system, it is important to develop this capacity and it is one that can be learned.
Emotional Competency and Empathy
Empathy is the capacity to understand the experience of another. Being empathic is an important skill when listening to the experience of a victim of sexual assault.
Listening with empathy does not make one biased. Connecting with the victim-witness depends on empathy and compassion for the sexual assault victim. It is possible to be both neutral and impartial, and to be compassionate and empathic.
Emotional competency requires developing essential social skills to recognize, interpret, and respond constructively to emotions in yourself and others. This means developing the ability to interview victims in ways that empower and calm them, so they are able to provide more accurate, coherent, consistent and persuasive narratives.
When victims of sexual assault feel:
- that someone is listening to them;
- that the listener can tolerate what they have to say;
- that the listener understands what they have to say; and
- that the listener can imagine their story to be true
they will feel more comfortable disclosing their experience and feel more comfortable providing information about it.
When speaking of the sexual assault, police should not refer to the “alleged” crime, or the “reported” crime. This conveys an attitude of doubt and suspicion. Instead, police must convey respect.
Empathy is not a skill that is typically taught in law schools or during police training. But it should be. It is a skill that can be learned and refined. Not only is it essential to effective work with sexual assault victims, it can also be widely applied to many other spheres of legal and police work.
The stance of the global “Start by Believing” campaign should guide our responses to sexual assault. This campaign was launched by End Violence Against Women International (EVAWI) to transform the way institutions like the criminal justice system respond to sexual assault. Footnote 11 Of course, police still carry out a thorough investigation.
Brief Initial Police Interview: Setting the Tone
The best practice for a trauma-informed approach to the initial contact is for the sexual assault victim to have a brief, respectful, and empathic first contact with a police officer, who should take only a limited amount of information for the initial report. It is important for police to determine what is needed immediately, and what can wait.
By being empathetic, patient, and respectful, [the police officer] can contribute to the immediate and long term recovery of the victim and lay the foundation for mutual cooperation and respect on which the successful interview, investigation, and prosecution is built. (International Association of Chiefs of Police, 2017)
Taking the Report
The first officer who takes a report from a sexual assault victim “should address any safety or medical concerns, collect just enough information to establish the elements of the crime, identify potential witnesses and suspect(s), and identify and secure evidence.” (Human Rights Watch, 2013; International Association of Chiefs of Police, 2005) At a slightly later date, the officer can fill in more details during a more in-depth interview.
It is important at this initial stage to help the victim get connected to a victim advocate or other support services. It is also important to provide her with information about next steps and about how the process will unfold, to make it as predictable as possible.
Delaying Taking Detailed Follow-up Statement
It is important to interview sexual assault victims in a way that is consistent with how memory works. Memory transfer to the cortex during sleep allows the episodic memory to retrieve information that was stored at the time of a sexual assault. Sexual assault victims thus ideally require two full nights of sleep to allow their memories to consolidate and transfer the information about the assault before they can relate detailed narratives about “what happened.” Unless there are exceptional circumstances that require an accused to be immediately arrested, the best practice for conducting sexual assault investigations should be delayed follow-up interviewing. Delayed disclosure is a very typical pattern for many survivors (average of 25 days for sexual assaults, see Rotenburg, 2017).
This translates into a delay for police in taking detailed victim statements.
The initial victim statement is typically taken upon first contact with the victim. Taking this initial verbal statement from the victim is an opportunity for law enforcement to obtain basic information and establish the location and elements of the crime. It is not an opportunity to conduct a comprehensive interview. The initial statement is used to assess safety and health needs, ascertain jurisdiction, identify and preserve sources of evidence and determine next steps. (Governor's Commission on Domestic Violence and Sexual Assault, 2017, p. 18)
Trauma-Informed Interviewing for Sexual Assault Victims
In a trauma-informed approach to sexual assault investigations,
the interview is a way to allow the victim to express what their experience was rather than just what they remember or do not remember. Capturing the trauma and the sensory and peripheral details of the event is compelling evidence. (International Association of Chiefs of Police, 2017, slide 15)
During a traumatic event, people can dissociate as a way of coping with an overwhelming response to what is happening. This can often result in them not being able to remember the event later. They can divide their attention so that when they are being attacked they instead, for example, focus on some other aspect not central to the experience. Victims who dissociate may not be able to tell you what they felt because they were disconnected from their bodies. They may, however, vividly remember some specific aspect on which they focused, such as the colour of the carpet or some other detail of the experience (while not recalling other peripheral details at all).
Because the hippocampus does not remain focused on the present or attend to explicit details and time sequencing, the encoding for the details of the assault is impaired. However, sensory memories (i.e., what was actually being done to the person when they were assaulted) are encoded as implicit memories.
Knowing about dissociation explains why asking victims questions about what happened next, or other questions about peripheral details, often does not elicit useful information. Instead, it is more important to ask victims what they did focus on and what, if any, sensory memories they can recall (colour, smell, etc.). This type of dissociation is called dissociative PTSD and is associated with early childhood and cumulative trauma. (Lanius, 2015) It has recently been recognized as a subtype of PTSD in the DSM-5. (American Psychiatric Association, 2013)
A Paradigm Shift: The Forensic Experiential Trauma Interview (FETI)
FETI is a science-based methodology developed by Russell Strand that uses brain-based cues to facilitate collection of psychophysiological evidence. Strand integrates current forensic psycho-physiological knowledge and practices, to develop a new approach for how to conduct law enforcement interviews with victims of trauma. Using the forensic experiential trauma interview approach, Strand argues that we can gather the best possible evidence by using brain based cues.
It is important to allow for an uninterrupted narrative, articulated by the victim, so that she can tell you what happened in her own words. The interview questions should be open-ended to focus on eliciting raw information, such as the victim’s sensory experiences of sights, smells, and sounds. Police should also practice active listening and avoid victim-blaming language/questions and assumptions, such as “Why did you…?”.
Opening questions in taking a sexual assault report should be probing and open-ended. These can include:
- What are you able to tell me about your experience?
- Where would you like to begin?
- What was the most difficult part of this experience for you?
- What can’t you forget?
Other open-ended questions and probes can include:
- “Tell me more about …” “What was your thought process during this experience?”
- “What are you able to remember (with your six senses)?”
- “Do you recall hearing anything? What do you recall hearing?”
- “Do you recall smelling anything? What do you recall smelling?”
- “What were your reactions to this experience?”
- “What do you remember feeling physically?”
- “What do you remember feeling emotionally?”
- “What was the most difficult part of this experience for you?”
- “What can’t you forget?”
An open-ended approach that elicits sensory details and allows a victim to describe the assault in her own words is recommended. Unblocked memories can lead to identifying more memories. Asking about these details is a way of delicately gathering evidence, and making it possible to collect further information that may corroborate the victim’s account.
How Victims Might Respond to Questioning
Victims will often recall many micro details about the sexual assault experience. Listen for them. Such details can actually support the victim’s account, so look for ways to corroborate them to support the evidentiary record.
Although some of the sensory questions may be difficult for some victims to answer, many victims, including highly traumatized victims, report experiencing a catharsis when they are interviewed sensitively, skillfully and effectively.
Victims who have experienced a freeze response during a sexual assault may experience much higher levels of self-blame about what happened to them. These are complicated responses that may not make sense to triers of fact. They require some skill and information to explain their context, particularly in light of defence tactics which may seize on victim freeze responses and deploy them to suggest that they actually signaled consent to the sexual contact even though this is an error in law, which should be challenged by the Crown and corrected by the judge. The affirmative consent standard in law does not allow this yet defence counsel nevertheless continue to perpetuate this rape myth. (Craig, 2018)
The Important Role of Victim Advocates
Victim advocates are professionals trained to support victims of crime, such as women who have been sexually assaulted. They may be community hospital based (for example, a sexual assault nurse examiner), work in a rape crisis centre, or work in a victim-witness program. The presence and support of victim advocates for sexual assault complainants is an important best practice to improve how the criminal justice system processes sexual assault cases. Victim advocates from the community, the academy, and the women’s movement have played a key role over many decades in developing service delivery, positive policy developments, and law reform to improve responses to sexual assault in Canada. (Gotell, 2010; Roberts & Mohr, 1994)
Advocates can play a range of roles throughout the victim’s encounter with the criminal justice system. They can offer victims information and emotional support, and may assist with finding resources, provide counselling, and also attend court with the victim.
Best practices for victim advocates also allow for a support worker “to be present during the [police] interview, if the victim so desires. The role of the crisis centre advocate is to provide support to the victim, not to participate in the actual interview process.” (Campbell & Martin, 2001, p. 231) In an interview, or in the court room, victims who become overwhelmed or triggered
may not be able to ground themselves in the present and recognize that [they are in] a safe environment ... This is one of the many reasons why it is important to include victim advocates in the interview process. In this case, it would be best to take a break to give the victim time to talk to the victim advocate in hopes that the situation can be de-escalated. It’s always a good rule for investigators to do whatever they can to prevent additional harm to the victim. (Wilson, Lonsway & Archambault, 2016)
This last point bears particular emphasis. Victim advocates play a crucial role in assisting and protecting victim-witnesses as they navigate a system that was not designed with their interests or needs in mind. Put differently,
[t]hroughout all aspects of their work, rape victim advocates are trying to prevent 'the second rape'—insensitive, victim-blaming treatment from community system personnel … The job of rape victim advocates, therefore, is not only to provide direct services to survivors but also to prevent secondary victimization. (Campbell & Martin, 2001, p. 231)
The crucially important role of the victim advocate, therefore, “is to provide emotional support and information, to listen, believe, and work to empower the victim while honoring the choices they make.” (Governor’s Commission on Domestic Violence and Sexual Assault, 2017, p. 36) The presence of a support person can be not only beneficial to the sexual assault victim throughout the investigative process and criminal justice system procedures but can also help the victim engage with the system, and can enhance how satisfied they are with the experience. (Human Rights Watch, 2013) A victim advocate is also consistent with a victim-centred and trauma-informed approach to processing sexual assault cases throughout the criminal justice system.
On the Stand: Preparing the Victim-Witness of a Sexual Assault in a Criminal Trial
Adequately preparing sexual assault victims for the rigours and challenges of the trial process is essential to a trauma-informed approach. Many Crown attorneys do not have adequate time for this preparatory work with victims in the currently backlogged, and often significantly under-resourced, court system. This presents a systemic challenge, and requires a remedy if the criminal justice system is seriously going to move towards becoming trauma-informed and more supportive of sexual assault victims.
Many aspects of the court process are disempowering for victim-witnesses. For example, where victim-witnesses are positioned in the courtroom can make them feel intimidated and vulnerable when they are giving testimony in a sexual assault trial. This physical positioning can be, as one legal scholar has observed, “compounded by the inferior position of the complainant relative to other trial participants such as the lawyers and judges.” (Craig, 2016a, p. 224) This vulnerability is quite literally demarcated by the heightened role of the judge in the court room, as “judges typically sit behind an elevated bench at the front and center of the courtroom, thereby allowing the judge to physically ‘look down’ upon the witness as he sits in judgement.” (Craig, 2016a, p. 218)
Throughout the process of narrating her sexual assault and her reactions to it, the victim-witness, who has typically been isolated and without support, by herself in the witness box, must, under persistent and challenging questioning, lay bare her experience of being violated. All the while she is both under intense scrutiny from the various courtroom players, and also aware that she must mentally prepare for the adversarial and often hostile attack of defence questioning, after she has provided the evidence in chief. The Crown thus has a particular responsibility to prepare the victim-witness thoroughly and sensitively, and to lead the examination-in-chief in a trauma-informed manner.
Recent changes to the Criminal Code allow a number of measures to be invoked in cases such as sexual assault. These can increase the ability of a witness in a criminal proceeding to provide evidence. Having a support person present while a victim-witness testifies is one such testimonial aid. This is allowed by section 486.1(2). Footnote 12
Two other measures can also help witnesses. The excesses of the difficult experience of testifying in a sexual assault trial may be blunted with a successful s. 486.2(2) application. That would allow a witness to testify outside the courtroom by closed-circuit television or behind a screen to avoid seeing the accused. Footnote 13 A s. 486(1) application would allow the public to be excluded from the courtroom to allow the victim to have privacy. Footnote 14 These, however, are not guaranteed because they depend upon the judge’s decision. Footnote 15
Other changes at the trial, such as carefully pacing questioning and taking cues from the complainant (victim-witness) about her need for breaks, can assist the process.
These difficulties for victims testifying in court heighten the need for trauma-informed approaches to criminal justice system processes and trauma-informed questioning to reduce these issues for victim-witnesses whenever possible.
Social Expectations of Victim-Witnesses’ Testimony in a Sexual Assault Trial
Speaking about traumatic life events such as sexual assaults is inherently difficult. They are intensely personal and private, and require discussing the private zones of the body, involve disclosures of sexual acts surrounded by social taboos, and they are also associated with victim-blaming and often shame.
Speaking about this kind of experience with a stranger, like a police officer or lawyer, let alone speaking about it in public courtroom, only increases these difficulties. Yet somehow there is a social expectation that sexual assault victims should relay information about their sexual assault experiences in a calm, linear, and straightforward manner, as if they were speaking about any other routine matter, rather than one that is privatized, stigmatized, or sexualized and involves being violated and humiliated. Not only is this entirely unrealistic and unreasonable, it is at odds with basic knowledge about human psychology or about how trauma affects memory and recall. It is neither trauma-informed, nor trauma-aware.
Trauma is often shrouded in secrecy and denial. The Crown attorney should thus try to understand the victim’s history, because it may help explain her unique reactions to the assault and how she is processing the associated trauma. It is important for the Crown attorney to know about this information before the trial: first, to prevent or minimize retraumatizing the victim; and second, to elicit testimony about victim behaviour and trauma from an expert so that triers of fact have the proper context through which to process the victim’s testimony. (Kristiansson & Whitman, 2015)
Best Practices: Trauma-Informed Training and Education for All Criminal Justice System Professionals
One of the key recommended best practices, given the complexities of victim responses, is the need for criminal justice professionals to have specialized in-depth training and education across all sectors of the system on the neurobiology of trauma, violence, and abuse, and the social contexts of victim responses.
Another best practice in the field is partnerships across sectors and close and ongoing collaborations between criminal justice system players to improve service delivery and responses. This should include police, community and women’s organizations, health care providers, victim-witness support workers and advocates, lawyers, and government policy makers working in the area of sexual assault. This education will enhance judicial knowledge about a complex subject area and assist in neutralizing biases.
Conclusion: Why We Need a Trauma-Informed Criminal Justice System for Sexual Assault Cases
In recent years there has been much public and media attention on the subject of sexual assault and sexual violence. As a result of a number of high profile trials, the #Metoo movement and outpourings of disclosures in Canada and beyond, the scale and pervasiveness of sexual assault and sexual misconduct in Canadian society has been revealed. Sexual assaults and their social, health, economic, and legal costs pose a major problem for equality in Canadian society.
The criminal justice system remains in need of significant reform to achieve better outcomes for victims of this crime and an improved version of justice. A trauma-informed approach is a fundamental and necessary step in this direction.
Criminal justice professionals, including prosecutors, law enforcement and victim services, need to apply trauma-informed practices as a case progresses through the justice system. (Kristiansson & Whitman, 2015) This requires a basic knowledge of the neurobiology of trauma and its impact on victims who have lived through sexual assault and its harms. As such, improved efforts should be made to increase the availability and delivery of specialized trainings and educational workshops to all criminal justice professionals, as well as continued support for on-going and/or new partnerships between criminal justice and other system sectors. These efforts will enhance access to justice for victims of sexual assault, as well as contribute to the ever-growing professional and public awareness about the impact of trauma.
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