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 Australia’s 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 United States 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.

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 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.