Thursday, June 11, 2015

State Re-Traumatization

“Trauma is not random.  Its occurrence varies as a function of characteristics of the individual (e.g., racial/ethnic minority or LGBT status), peer relationships (e.g., intimate partner violence), community characteristics (e.g., poor neighborhoods), and socio-political factors (e.g., terrorism, war, and civil unrest).  Additionally, these characteristics influence trauma type (e.g., women are more likely than men to be victims of intimate partner violence and unwanted sex).  Outcomes of trauma are also not random, and are highly related to characteristics of the individual, peer group support, community, and socio-political factors." These are the findings of a 2014 study on the public health impact of trauma.

Despite living in an era of evidence based planning and decision making, many of our laws continue to employ standards that presume  those involved in the legal system are capable of linear, non-traumatized planning and reasoning.  Juvenile law is one example.  Often system actors approach prosecution and sentencing as if juveniles possessed adult thought capacities.  Evidence on juvenile brain development, as well as brain malfunctions following trauma, supports altered reasoning and impulsive actions by juveniles.  These conditions are enhanced when the juvenile has been abused. Trying a juvenile in adult court is a scientific absurdity, particularly when the process is applied to traumatized juveniles.  The status of the defendant's brain development  should drive any decision on prosecution charging and sentencing.  But our court systems often make the determination based on the outcome of the crime, not the capacity of the alleged offender. 

Similarly judgments are made regarding traumatized adults.  Those who have suffered intimate partner abuse frequently are unable to give linear testimony as a consequence of trauma.  Yet court actors continue to express frustration with adult witnesses who testify in what is to them an illogical order.  Both popular and academic literature describing PTSD is abundant thanks to the post-war difficulties experienced by returning war veterans.  The information is readily available to those within the legal system. Yet state actors still expect those who appear before them to behave in a manner that the actor determines conveys credibility, rather than accepting the witness as s/he appears on the trauma scale.

Human rights theories are difficult to argue successfully in these settings.  Triers of fact and others often disregard and disrespect traumatized individuals who appear before them.  Whether this behavior results from a lack of information or a disregard of literature is irrelevant.  The outcome  is the assignment of blame to those who have been victimized; and to declare a party not credible based upon the very indicators that prove traumatization.  Motivation is not important.   State actors cannot understand human rights based legal theories if fundamentally they are unwilling to accept empirical evidence on the impact of trauma.  State perpetration of re- traumatization is  a violation of fundamental human rights. And it is not random.

 

https://lawprofessors.typepad.com/human_rights/2015/06/state-re-traumatization.html

Domestic Violence, Juveniles, Margaret Drew | Permalink

Comments

Thank you, Margaret. This is an excellent column on an urgent and widespread problem. We see it in child protection, asylum-seeking, immigration courts at all levels, criminal courts, DV, etc. Very helpful.

Posted by: Jane McPherson | Jun 12, 2015 11:19:33 AM

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