AIJA Benchbook

Trauma-informed judicial practice

Australia

Atkinson, J., Nelson, J., Brooks, R., Atkinson, C., and Ryan, K. (2014). Addressing individual and community transgenerational trauma. In P. Dudgeon, H. Milroy, & R. Walker (Eds.), Working together: Aboriginal and Torres Strait Islander mental health and wellbeing principles and practice (2nd ed.). Canberra, ACT: Attorney-General’s Department.

This chapter provides further insights into trauma as cause and effect, which may manifest within and across generations, resulting in physical, mental, emotional, spiritual, and social distress for the individuals involved and beyond. Although trauma not only affects members of particular racial, cultural, religious, or socio-economic groups, it is well-established that Australia’s disadvantaged and isolated communities experience the most trauma-related behaviours and attitudes. The result of colonisation, combined with recent government policies and practices, have led to the traumatisation of many Aboriginal and Torres Strait Islanders. In particular, the chapter explains how culture plays a significant role in how victim/survivors manage and recount their experiences of trauma. A coordinated approach should incorporate all the services and supports necessary to help individuals, families and communities enhance their physical, social, spiritual, cultural and emotional wellbeing. Practice shows that approaches founded on Aboriginal culture and Western health and healing practices, such as neuroscience, are likely to support the healing and recovery process. Evidence also suggests that an ecological approach, which takes into account every system that adversely affects an individual and community situation, is more effective than a separation of services. The authors argue that well-resourced and appropriately-qualified trauma-specific services are critical to improve current levels of mental health and social and emotional wellbeing.

Bevis, M., Atkinson, J., McCarthy, L., and Sweet, M. (2020).Kungas’ trauma experiences and effects on behaviour in Central Australia (Research report, 03/2020). Sydney, NSW: ANROWS.

Kungas’ trauma experiences and effects on behaviour in Central Australia is a pilot project operating under the Kunga Stopping Violence Program (KSVP), based in Alice Springs. The project aims to encourage Aboriginal women who are clients of the KSVP to provide insights into life events that led to their incarceration. It is theorised that the majority of Aboriginal women incarcerated for violent crime have a potential diagnosis of complex trauma. It was found that the women had experienced several life stressors, many of which involved early childhood abuse, and which contributed to the continuation of their victimisation and offending, as well as to their resilience under extreme circumstances (p 5). The causes and results of trauma were felt across generations: "the outcome of violence may be traumatic (cause), and the response to trauma may result in behaviour which continues the cycle (effect)". The women recounted frequent memories and flashbacks of being unsafe, which may lead to future alcohol and drug use and an inability to communicate fear, anxiety and despair. Many of the women also came from disrupted mother-child, family and community relationships. This included witnessing parental or community violence, bullying, homelessness and deaths of family members (p 6). The women detailed their experiences of discrimination and judgment from police, as well as in the court and prison systems. There is also a serious communication disconnect. The majority of women in the KSVP speak a local Aboriginal language, whereas most services (police, legal services, service providers and corrective services) are dominated by English speakers (p 7).

According to the women, KSVP staff and stakeholders, the KSVP plays an important role in listening to and supporting the women via an "educaring" approach in a four-week course and through the provision of support while the women were in prison and on release. Educaring is a "trauma- specific blend of Aboriginal traditional healing activities and Western therapeutic processes. It uses experiential learning to enable participants to explore their individual and community transgenerational trauma". An educaring and relational approach facilitates listening to the women’s experiences and needs, working with them after prison, and advocating for them. Furthermore, local Aboriginal women are employed as the KSVP case managers (p 8).

Douglas, Heather, ‘Domestic and Family Violence, Mental Health and Well-Being, and Legal Engagement’ (2018) 25(3) Psychiatry, Psychology and Law 341-356.

This article draws from interviews with a group of diverse women who have engaged with the legal system after experiencing domestic and family violence (DFV). The study sought to investigate how women’s experiences of legal processes ‘affected their mental health and well-being’ (p 1). Almost all the women experienced some type of mental health issue directly attributable to DFV (p 5). Many women engaged preventative measures prior to attending court, including pre-court counselling, contacting mental health practitioners, and taking prescribed medication (p 2). Other women self-medicated and avoided seeking help fearing that proof of mental health concerns may lead to negative court outcomes (p 2). Many women highlighted attending court (pp 5-6), having to face the perpetrator in court (pp 6-8), and giving evidence (pp 8-9) as negatively affecting their mental health (p 10). A number of suggestions are made for improving women’s experiences in court, including:

•

minimising the frequency with which victims are required to attend court (p 10);

•

allowing women to give evidence remotely (p 10);

•

minimising contact between the victim and abuser, through ensuring there are safe waiting spaces (p 10), and staggering attendance and departure times of the parties (p 11);

•

providing effective training to court personnel regarding the dynamics of DFV (p 11); and

•

ensuring cross-examination, and legal proceedings in general, are not misused by the abuser (p 11).

Kezelman, C, and Stavropoulos, P, Trauma and the Law: Applying Trauma-informed Practice to Legal and Judicial Contexts (2016, Blue Knot Foundation)

There is evidence that demonstrates that "more effective, fair, intelligent, and just legal responses must work from a perspective which is trauma-informed". The paper identifies the following principles of trauma-informed practice:

Basic understanding of how stress affects the brain and body;

Consistently focussing on "safety, trustworthiness, choice, collaboration and empowerment", how a service is delivered, and the client’s experience rather than trying to identify any fault in them;

Recognising that adverse behaviour may be the result of an ability or inability to deal with, and to try to protect oneself against, negative experiences. If the effects of trauma are not considered, behaviour is frequently and incorrectly seen as ‘pathological’, rather than personal adjustments to deal with the vagaries of life;

A ‘strengths-based’ approach which takes into account people’s capabilities, despite the fact that they may be hard-pressed to cope with extremely difficult circumstances.

Implementing these principles has many advantages. Positive experiences with other people have been found to help restore the disruption which trauma causes to the human nervous system, and to improve overall wellbeing. Trauma-informed practice also assists in lessening arousal and minimising stress for victims, witnesses, defendants and legal personnel who engage with them. Trauma-informed principles recognise the disruptive effects that stress has on a traumatised person’s ability to recount their experience coherently such that their testimony can often appear unreliable, and further, they facilitate formulation of policies and development of strategies designed to help people interact with others in a manner which is both stable and safe. Therefore, testimony can be given in an environment which minimises further stress, the risk of re-traumatisation can be reduced and a person’s account may be more consistent and perceived as more reliable.

Salter, M., Conroy, E., Dragiewicz, M., Burke, J., Ussher, J., Middleton, W., Vilenica, S., Martin Monzon, B., & Noack-Lundberg, K., "A deep wound under my heart": Constructions of complex trauma and implications for women’s wellbeing and safety from violence (Research report, 12/2020). Sydney: ANROWS.

Complex trauma refers to multiple, repeated forms of interpersonal victimisation and the resulting health problems and psychosocial challenges. Women with experiences of complex trauma are a significant but overlooked group of victims and survivors of gender-based violence in Australia. They often have interlinked health and safety needs, and are frequently in contact with crisis services and police. This research identifies the core principles of trauma-informed care (p27 Report):

•

Ensuring a safe environment for clients and service providers;

•

Promoting interpersonal relationships;

•

Cultural awareness and knowledge;

•

Supporting consumer control, choice, and autonomy;

•

Understanding trauma and its impact;

•

Sharing power, inspiring hope, and supporting recovery;

•

Integrating different healthcare services;

•

Sharing power and governance.

International

Bishop, C and Bettinson, V, Evidencing domestic violence, including behaviour that falls under the new offence of "Controlling or coercive behaviour" (2018) 22(1) The International Journal of Evidence & Proof 2-29

Memories associated with traumatic events and experiences, including the experience of domestic and family violence victimisation, are fragmented, disorganised and lack coherence.

Victims may remember only sensations or emotions rather than chronological details of events. They may be able to describe events with little evidence of distress or emotion and may not be able to describe how they felt at the time of the attack as details and emotions may be stored separately from each other. When intentionally recalled, as when interviewed by police or in court, recount may be disorganised, with variability and errors in recall across time. Very intense emotional experiences may lead to distorted memories and amnesia, meaning witnesses cannot give a coherent narrative of a traumatic event or experience.

The experience of giving evidence may itself trigger a traumatic flashback, causing a witness to become confused or disorientated. They may consequently become anxious, forget where they are momentarily or be unable to understand or answer questions.

Such witnesses may be perceived to lack witness credibility and reliability. An understanding of the impact of trauma on memory and witness responses may ameliorate the impact of this on perceptions of witness credibility and reliability.

Elliott, D. E., Bjelajac, P., Fallot, R. D., Markoff, L. S., and Reed, B. G., ‘Trauma-informed or trauma-denied: Principles and implementation of trauma-informed services for women’ (2005) 33(4) Journal of Community Psychology 461-477.

The article highlights the importance of providing trauma-informed services, namely, "those in which service delivery is influenced by an understanding of the impact of interpersonal violence and victimisation on an individual’s life and development". The authors argue that trauma-informed services are more effective for and accessible to survivors. Effective trauma-informed service delivery requires a coordinated approach, where all staff (from receptionists to direct care workers) understand how violence affects people’s lives, so that each interaction is consistent with the advancement of the recovery process and minimises potential re-traumatisation. Ten principles are identified, reflecting the values and practices that define a trauma-informed service organisation. The authors submit that trauma-informed services:

Recognise the impact of violence and victimisation on development and coping strategies (p 465);

Identify trauma recovery as a main goal (p 465);

Use an empowerment model by facilitating a client’s ability to take control over her actions (p 465);

Aim to maximise a woman’s choices and control over her recovery (p 466);

Are founded in a relational collaboration (p 466);

Create an environment that is mindful of survivors’ need for safety, respect and acceptance (p 467);

Emphasise women’s strengths and recognise symptoms as deriving from adaptations to traumatic events, which, in turn, reduces a client’s guilt and shame, increases self-esteem and provides guidance for developing new skills (p 467);

Aim to minimise potential re-traumatisation (p 467);

Aim to be culturally aware and to understand every woman in light of her life experiences and cultural upbringing (p 468);

10.

Encourage women to be involved in designing treatment services and the ongoing evaluation of those services (p 469).

Epstein, Deborah, and Lisa A Goodman, ‘Discounting Credibility: Doubting the Testimony and Dismissing the Experiences of Domestic Violence Survivors and Other Women’ (2018) 167 (2) University of Pennsylvania Law Review 399-461

This article addresses the ways in which the credibility of female victims of intimate partner violence is discounted through their experiences of legal and social services (pp 3-4). The authors conclude that women’s experiences are frequently discounted, which itself can have further traumatic impacts.

Judges and other professionals often discount women’s stories of abuse as implausible, particularly where the victims suffer from psychological trauma that may impact memory and comprehension (p 7). Women who suffer traumatic brain injuries (pp 9-11) or PTSD (pp 11-3) as a result of domestic violence are particularly susceptible to relaying inconsistent stories. The authors also find that cultural assumptions resulting in the prioritisation of physical over psychological violence causes judges and other authority figures to expect ‘real’ survivors to also prioritise physical harm, while in reality, victims may feel more significantly impacted by psychological abuse (pp 17-20).

Moreover, the results of the study indicate that gatekeepers often unjustly discount women’s personal trustworthiness, based on perceptions of their demeanour (pp 21-5), their perceived motive (pp 25-32), and their social location (pp 32-7). Even women who are able to overcome initial scepticism often find that the systems intended to provide assistance dismiss the importance of their experiences (p 37). In spite of meaningful progress, ‘the criminal justice system continues to discount important aspects of women’s experiences and to trivialize some of the harmful consequences that policies focused primarily on offender accountability often impose on survivors’ (p 38). Ultimately, ‘the arbiters of justice and social welfare adopt and enforce legal and social policies and practices with little regard for how they perpetuate patterns of abuse’ (p 1).

These experiences of minimisation often echo women’s previous experiences of abuse (p 46). The impacts of this discrediting are multifaceted: the dismissal itself constitutes its own injury, which can compound the harm such women experience directly from the abuse (pp 47-50); additionally, this instinctive devaluing of women’s testimony becomes an independent obstacle to attempts to obtain safety and justice (pp 50-2). The authors conclude that credibility discounting is widespread and pervasive, and requires genuine institutional reform (p 59). Particularly, actors must be aware of these internalised assumptions, and seek to engage more openly with victims (see pp 54-6).

Franklin, C. A., Garza, A. D., Goodson, A., & Bouffard, L. A., Trauma Informed Training & Police Perceptions of Victim Behaviors (2019) Crime Victims Institute and Texas State University.

This paper considers previous research which has shown that as a consequence of PTSD, survivors may present with restricted affect, emotional numbing, and avoidance of eye contact. Disjointed recollection has also been a common consequence of PTSD. Oftentimes, the memory encoding process is disrupted during traumatic experiences, which can result in amnesia or fragmented memories. This can be contrasted to stereotypical understandings of trauma response, such as emotional expressiveness, hysteria, timely reporting, and linear recollections.

This study compared responses of police who have not received trauma-informed training with those who had. Police personnel in this study who had not received training endorsed attributions that support stereotypical trauma response. Endorsing these attributions has the potential to exacerbate secondary victimization among survivors and aggravate case attrition.

Police officers who had participated in the trauma-informed training reported significantly decreased levels of trauma misperceptions as compared to police officers in the pre-training sample.

Katirai, N 2020, ‘Retraumatized in Court’, Arizona Law Review, vol. 62, no. 1, pp. 81–124.

US based research. Abstract: In addition to the indignities associated with the violence itself, intimate partner violence survivors very often risk being retraumatized when trying to access the justice system. While the "me too" movement has shed light on how survivors of sexual assault and harassment often experience victim-blaming and other types of retraumatization when they try to tell their stories, few legal scholars have written about the retraumatization that occurs when survivors of intimate partner violence attempt to seek help through the courts. This retraumatization risk presents a barrier to effective justice: it has a chilling effect on the criminal prosecutions of domestic violence crimes; and it deters civil domestic relations and dependency actions, including child custody trials. This Article details how courts are implicated in retraumatization and is the first to propose cross-cultural communication to improve the quality of justice for survivors of intimate partner violence. Adequate justice requires combatting an institutional culture that all too frequently trivializes the impacts of intimate partner violence. While adapting the legal process to address this problem is a long-term task, the focus of this Article is to lay out more immediate strategies for advocates of survivors of intimate partner violence to improve the experience of their clients. Key to this urgent endeavour are: (1) employing "habits" of cross-cultural communication to better prepare our clients for how retraumatizing the legal system can be and (2) expanding the services provided by legal services organizations, including law school clinics, to include supportive services such as case management and counseling.

Reeves, E., ‘A Synthesis of the Literature on Trauma-Informed Care’ (2015) 36(9) Issues in Mental Health Nursing 698-709.

This literature review provides an overview of the existing research on trauma-informed care for survivors of physical and sexual abuse, and closely examines concepts including, inter alia, trauma screening, patient disclosure, provider-patient relationships, minimising distress and maximising autonomy, and trauma-informed care in diverse settings. The development and widespread implementation of trauma-informed care that is sensitive to a patient’s individual needs is crucially important, given that the healthcare system may re-traumatise those with a history of traumatic life events. Patients who present at Emergency Departments are often not asked whether they have experienced traumatic life events by service providers. This highlights a missed opportunity to provide trauma-informed care and referrals to women at a high risk for past and present abuse and for whom the hospital is an entry-point into the healthcare system. Current trauma screening methods may also impede patient disclosure, and some victims have reported being dismissed or belittled by healthcare providers or made to feel that they were not believed.

Trauma-informed care requires that providers identify and work against power imbalances in provider-patient relationships (p 701). Minimising patient distress and maximising patient autonomy may guide healthcare decision-making. Patient distress can be appropriately managed or minimised if providers have a strong knowledge of trauma symptoms, limit unnecessary procedures, obtain patient consent to perform or continue procedures, and are flexible in service delivery by checking that patients feel comfortable and pausing or stopping procedures when they feel overwhelmed. Patients may feel more autonomous and empowered when service providers acknowledge and respect their agency in making healthcare decisions and their willingness to participate. Female survivors also felt more comfortable when they were allowed to bring a support person to medical appointments (p 702). Further, trauma survivors can benefit from appropriate referrals to other necessary services, such as addiction counselling or trauma-specific therapy (p 703).

Substance Abuse and Mental Health Service Administration, Concept of Trauma and Guidance for a Trauma-Informed Approach. 2014 (US)

This resource provides general guidance for a trauma-informed response. It describes individual trauma as resulting from an event, series of events or set of circumstances that is experienced by an individual as physically or emotionally harmful or life threatening and that has lasting effects on the individual’s functioning and mental, physical, social, emotional, or spiritual well-being.

It identifies three Es of trauma:

•

Events (actual or threat of harm- physical/ psychological), single or repeated occurrence.

•

Experience: ‘The individual’s experience of these events or circumstances helps to determine whether it is a traumatic event. A particular event may be experienced as traumatic for one individual and not for another.’

•

Effects: short or long lasting / adverse effects. Connection between effect and trauma may not be clear, or understood by the person who is traumatised. ‘[A]dverse effects include an inability to cope with the normal stresses and strains of daily living; to trust and benefit from relationships; to manage cognitive processes, such as memory, attention, thinking; to regulate behavior; or to control the expression of emotions. In addition to these more visible effects, there may be an altering of one’s neurobiological make-up and ongoing health and well-being.’

This paper then outlines six principles fundamental to trauma-informed approaches:

•

Safety – prioritise safety as defined by those the organisation serve; all staff and the people they serve feel physically and psychologically safe;

•

Trustworthiness and transparency – transparent operations and decisions with the aim of building and maintaining trust with all participants;

•

Peer support and mutual self-help – "key vehicles for establishing safety and hope, building trust, enhancing collaboration, and utilizing their stories and lived experience to promote recovery and healing";

•

Collaboration and mutuality – recognition that everyone has a role to play, "healing happens in relationships and in the meaningful sharing of power and decision-making;

•

Empowerment, voice, and choice – "workforce development and services are organised to foster empowerment for staff and clients alike"; "staff are facilitators of recovery rather than controllers of recovery";

•

Cultural, historical, and gender issues – "The organization actively moves past cultural stereotypes and biases (e.g. based on race, ethnicity, sexual orientation, age, religion, gender-identity, geography, etc.); offers, access to gender responsive services; leverages the healing value of traditional cultural connections; incorporates policies, protocols, and processes that are responsive to the racial, ethnic and cultural needs of individuals served; and recognizes and addresses historical trauma". (p11)

Guidance is provided for implementing a trauma-informed approach, with specific attention drawn to ten implementation domains:

•

Governance and leadership – support and investment in implementing and sustaining a trauma-informed approach, an identified point of responsibility for this and inclusion of the peer voice;

•

Policy – written policies and protocols reflecting trauma-informed principles;

•

Physical environment – promotes a sense of safety and collaboration, experienced as safe, inviting, not a risk to physical or psychological safety; supports collaboration through openness, transparency and shared spaces;

•

Engagement and involvement – of people in recovery, trauma survivors, people receiving services and family members receiving services;

•

Cross-sector collaboration – people with significant trauma histories often have complex needs;

•

Screening, assessment, treatment services – practitioners use and are trained in interventions based on best available evidence and science, culturally appropriate and reflect principles of a trauma-informed approach; referrals connect individuals with appropriate trauma treatment;

•

Training and workforce development – ongoing training and peer support, procedures to support staff with trauma histories and/or significant secondary traumatic stress or vicarious trauma;

•

Progress monitoring and quality assurance – ongoing assessment, tracking and monitoring and effective use of evidence-based trauma specific screening, assessments and treatment;

•

Financing – including resources for staff training on trauma and trauma-informed approach, appropriate and safe facilities, peer support, evidence-supported trauma screening, assessment, treatment and recovery supports, development of cross-agency collaborations;

•

Evaluation – evaluation design reflects an understanding of trauma and appropriate research instruments.

Communities that respond to individual trauma with understanding and self-determination may facilitate healing and recovery for traumatised individuals. Communities as a whole may experience trauma, which may be transmitted from generation to generation in a pattern of historical, community or intergenerational trauma. Telling the story of the trauma experience using the language and framework of the community is an important step towards healing community trauma.

Substance Abuse and Mental Health Service Administration, Essential Components of Trauma-Informed Judicial Practice (2014).

This paper provides information, specific strategies, and resources that many treatment court judges have found beneficial (in US). It provides a list of physical court environment ‘triggers’ that may cause certain responses in trauma survivors. It suggests a series of communication and court management strategies (p8) to help reduce the traumatic experiences often associated with going to court. Strategies include:

•

Providing clear explanations about what will happen to the person in the courtroom and when.

•

Explaining why particular orders are made.

•

Providing information about the scheduling of matters to the greatest extent possible - what will be expected and when.

•

Where the court has conversation with legal representatives, explain why this is happening.

This paper also provides helpful suggestions about how to use language that does not retraumatise (p4).

Swanson Ernst, Joy and Tina Maschi, ‘Trauma-informed care and elder abuse: a synergistic alliance’ (2018) 30(5) Journal of Elder Abuse & Neglect 354-367.

This article provides a comprehensive analysis of elder abuse - a problem in which one or more traumatic or stressful life experience directly affect older adults, their families and communities. The authors detail the principles and practices of trauma-informed care and how it can form a synergistic alliance with the prevention and intervention efforts across the life course. The authors identify six guiding principles for trauma-informed care (TIC). These principles are:

Safety: throughout the organization staff and the people they service feel physically and psychologically safe;

Trustworthiness and transparency: organizational operations and decisions are conducted with openness and the goal of building and maintaining trust among staff, clients, and family members of those receiving services.

Peer support and mutual self-help: Empowering older adults to help one another when feasible may be an important ingredient moving them from victim to survivor status.

Collaboration and mutuality: recognizing that healing happens in relationships and in the meaningful sharing of power and decision making and everyone has a role to play in the healing process.

Empowerment, voice, and choice: organization recognizes, builds on, and validates individuals’ strengths and assists in development of new skills as necessary.

Cultural, historical, and gender issues: incorporation of cultural, historical, and gender issues into an organization’s practice means that the agency moves beyond cultural stereotypes and biases.

Table of Contents

Trauma-informed judicial practice

An important aspect of ensuring fair hearing and safety is considering the impact that experiences of trauma may have on the experience of the court process. For some victims their engagement with law enforcement agencies and the courts may exacerbate or prolong the trauma they have experienced as a result of the domestic and family violence. For example, absence of legal representation, lack of interpreter services, giving oral evidence, being cross examined, being present in the court room or court precinct with the perpetrator, or having to repeatedly return to court for mentions, adjournments and hearings may contribute to a victim’s revictimisation or secondary abuse through the court system. Judicial officers should ensure, where reasonably practicable and where resources permit, that any adverse consequences associated with court processes are addressed or at least mitigated.

Many people who are victims and perpetrators of domestic and family violence have experienced trauma. Studies have indicated that people involved with the criminal justice system have high rates of personal histories of trauma. Trauma is a result of the "overwhelming of coping mechanisms in response to perception or experience of extreme threat". If underlying trauma is unresolved it may cause ongoing adverse effects which may not necessarily be apparent and may include the inability to:

•

cope with the normal stresses and strains of daily living;

•

trust and benefit from relationships;

•

manage cognitive processes, such as memory, attention, thinking;

•

regulate behaviour; or

•

control the expression of emotions.

Trauma may stem from a single traumatic incident or event or be complex trauma, which is cumulative from multiple, repeated interpersonal vicitmisation, causing health problems and psychosocial challenges. They may develop post-traumatic stress disorder ("PTSD") or complex post-traumatic stress disorder (cPTSD). People who have experienced complex trauma often have interlinked health and safety needs and frequent contact with crisis services and police. It is important to understand the behaviours of people affected by trauma as strategies or behavioural adaptations developed to cope with the physical and emotional impact of past trauma. Trauma is particularly prevalent among Aboriginal and Torres Strait Islander communities and studies have shown that culture plays a significant role in how victim/survivors manage and recount their experiences of trauma.

People with complex trauma may benefit from a trauma-informed approach across all support services they have contact with, including courts. Interaction with courts may re-traumatise people who have histories of trauma. Alternatively, embedding trauma-informed principles and practices in court processes may contribute to feelings of wellbeing and safety.

A US resource identifies that, at its core, trauma-informed judicial practice includes treating individuals with dignity and respect and ensuring the physical and emotional safety of participants without sacrificing security or formality of judicial proceedings. This resource identifies three essential components of trauma-informed judicial practice:

•

Communication: trauma can influence the way individuals perceive what judges and others in authority say and how they say it. Using language which expresses concern and is less judgemental, negative and punitive has a positive effect on those effected by trauma.

•

Clarity about court processes and procedures: giving individuals clear explanations of what is going to happen may alleviate fears and decrease the possibility of disruption to proceedings. Understanding what is going to happen and why helps engender a perception of physical and emotional safety in those affected by trauma.

•

Safety in the courtroom environment: many courtroom practices, including the placement of participants (including for some, the experience of being restrained), the presence of victims and perpetrators in the same physical space and practices in courtrooms, including the processes of giving evidence and/or being cross-examined, may be confronting for any individual experiencing them for the first time, let alone a person who has a history of trauma.

A trauma-informed judicial officer will:

•

provide clear explanations about what will happen to the person in the courtroom and when;

•

explain why particular orders are made;

•

provide information about the scheduling of matters to the greatest extent possible - what will be expected and when;

•

explain why a conversation with legal representatives, is happening; and

•

use language that is not threatening.

Those who work with people affected by trauma, including judicial officers, court staff and lawyers, may experience secondary, indirect or vicarious trauma.

The effect of trauma on evidence/credibility

Memories associated with traumatic events and experiences, including the experience of domestic and family violence victimisation, are often fragmented, disorganised and lack coherence.

Victims may remember only sensations or emotions rather than chronological details of events. They may be able to describe events with little evidence of distress or emotion and may not be able to describe how they felt at the time domestic and family violence was being perpetrated as details and emotions may be stored separately from each other. When intentionally recalled, as when interviewed by police or in court, recounting may be disorganised, with variability and errors in recall across time. Very intense emotional experiences may lead to distorted memories and amnesia, meaning witnesses cannot give a coherent narrative of a traumatic event or experience.

Such witnesses may be perceived to lack credibility and reliability. An understanding of the impact of trauma on memory and witness responses may ameliorate the impact of this on perceptions of witness credibility and reliability. The use of special witness provisions may also help to ameliorate the impact of trauma on witnesses, in particular by ensuring that witnesses perceive that the court prioritises their safety.

Last updated: July 2024

Trauma-informed judicial practice

•

cope with the normal stresses and strains of daily living;

•

trust and benefit from relationships;

•

manage cognitive processes, such as memory, attention, thinking;

•

regulate behaviour; or

•

control the expression of emotions.

•

A trauma-informed judicial officer will:

•

provide clear explanations about what will happen to the person in the courtroom and when;

•

explain why particular orders are made;

•

provide information about the scheduling of matters to the greatest extent possible - what will be expected and when;

•

explain why a conversation with legal representatives, is happening; and

•

use language that is not threatening.

Those who work with people affected by trauma, including judicial officers, court staff and lawyers, may experience secondary, indirect or vicarious trauma.

The effect of trauma on evidence/credibility

Memories associated with traumatic events and experiences, including the experience of domestic and family violence victimisation, are often fragmented, disorganised and lack coherence.

Victims may remember only sensations or emotions rather than chronological details of events. They may be able to describe events with little evidence of distress or emotion and may not be able to describe how they felt at the time domestic and family violence was being perpetrated as details and emotions may be stored separately from each other. When intentionally recalled, as when interviewed by police or in court, recounting may be disorganised, with variability and errors in recall across time. Very intense emotional experiences may lead to distorted memories and amnesia, meaning witnesses cannot give a coherent narrative of a traumatic event or experience.

Last updated: July 2024

National Domestic And Family Violence Bench Book

Last updated: July 2024