Because it’s 2015
The last two Justice Summits, hosted by The Honourable Suzanne Anton, BC Attorney General and Minister of Justice, had a fascinating theme embedded within them: a shared responsibility for creating a “trauma-informed justice system.” This idea is well-developed in the health sector, but it is relatively new to criminal justice. The basic idea is that people may behave and respond differently than we expect as a result of trauma, and it is imperative that we recognize their behaviours as valid and do everything we can to not re-traumatize them when they come into contact with the justice system.
Tara Brach, in a great resource from Manitoba called The Trauma Toolkit, describes trauma as “when we have encountered an out of control, frightening experience that has disconnected us from all sense of resourcefulness or safety or coping or love.” Interestingly, the event itself is not necessarily what makes it traumatic – it is the meaning we place on it and our own and others’ response to it. And it’s not just personal: families, communities and entire cultures can be traumatized when events occur that have reverberating impact, such as the inter-generational damage caused by the Canadian residential school system, and the neglect of marginalized women on the Highway of Tears and Vancouver’s Downtown Eastside. That some people believe themselves to be valued as less worthy than others in our society is a shame we cannot erase, but what we can do is to choose to live differently in 2015 and onward.
The fact that a traumatic event is experienced as being “out-of-my-control” is important: can you think of an institution more likely to invoke feelings of powerlessness than the justice system, where the police, Crown, defence counsel and judge are at minimum inquisitorial and at worst strongly adversarial? When we question people’s recollections of an event, their response to the event, whether they took any action to protect themselves, or what choices they made that might have made them vulnerable, we are almost certain to trigger the same physiological responses that occurred during the actual traumatic event. The result – and this is the most important part – are witnesses who, by all of the “normal” standards we have been trained to measure, exhibit behaviours that damage our perception of their credibility.
There is a strong body of recent neuroscience that says that everything you learned in law school (or policing school or judges school) is completely wrong when it comes to assessing the credibility and veracity of someone who has experienced trauma. Among those researching this field, Dr. Haskell from the University of Toronto has presented, to the Summits and to the Vancouver Police Department, compelling evidence that there are different parts of our brains that “encode” traumatic memories in different ways than non-traumatic events. The encoding of traumatic memories can completely disrupt the sense of any coherent chronology, create intense fragmentation of memories, and result in the retention of complex details about some things and a complete blank about others. Also, the physiological response to intense fear and powerlessness can lead to non-self-protective behaviours that have everything to do with a “freeze” response or disassociative state, both of which are normal, primal-brain behaviours that can be triggered by trauma.
The fact that a survivor of rape or other horrors is unable to exhibit a straight-line recollection of an event, or was unable to take action to protect himself or herself is not, in fact, a strike against the credibility of the witness – it is evidence that a trauma actually occurred. Now that we know that, it’s time for justice system players – and their educators – to catch up to the science.