1 David Thomas, MS Lisa Ferentz, LCSW-C, DAPAThe Presumption of Guilt: How the Criminal Justice System Inadvertently Re-Traumatizes Victims of Domestic Violence and Sexual Assault David Thomas, MS Lisa Ferentz, LCSW-C, DAPA

2 When we experience anything that is a fundamental threat to our well-being, and there are no available resources for safety, we are biologically hard-wired to go into a fight, flight or freeze response. Victims of domestic violence or sexual assault are typically unable to do fight or flight- as these responses will exacerbate perpetrator aggression. The last survival option is to freeze. Freeze/numbing responses may decrease additional harm, and allow the victim to not “consciously experience” or subsequently not remember situations of overwhelming stress or terror…

3 Understanding the “Freeze” or Dissociative ResponseTriggered by onset of profound trauma Needing to mentally escape what cannot be literally, physically escaped The “last resort” for coping and survival Creating a psychological state that alters consciousness, memory, identity or perception Allowing you to “zone out”, feel safer No longer in the present, untenable experience

4 When someone has a history of repeated trauma- either through the course of a long-term relationship that has domestic violence or sexual assault, or the result of a chronic childhood history of abuse, their repeated reliance on immobilization as a coping strategy creates a conditioned hormonal response that does not allow for physical movement and renders the body ineffective in future threatening scenarios.

5 Understanding Memory Declarative Memory: also known as “explicit” memory: conscious awareness and recall of facts and events Non-Declarative Memory: also known as implicit/procedural memory: refers to memories of skills, habits, emotional responses, reflexes and conditioned responses

6 “Research into the nature of traumatic memories indicates that trauma interferes with declarative memory (conscious recall of an experience) but does not inhibit non-declarative memory.. conditioned emotional responses.. and the sensorimotor sensations related to experience” (Van der Kolk and Fisler, 1999)

7 All of the activity related to trauma is in the right brain (contextual, somatic). You lose left brain activity (memory in context of time, problem-solving, telling others what happened) When first responders and subsequent investigators interview victims, they only focus on getting a verbal narrative of the experience- which is asking for information from the left brain.

8 It’s important to keep in mind that trauma is not stored in the languaging part of the brain. The memories get stored visually and viscerally. This explains why clients experience flashbacks and somatic sensations.

9 Therefore, when trying to gather facts from a traumatized victim, you will get more information if you ask about smells, colors, sounds, sensations, than you will asking for a linear verbal narrative!

10 Many victims of crime and trauma have histories of PRIOR abuse, trauma, or neglect. The reactions they manifest will be intensified by their prior experiences. Oftentimes, the most recent trauma “rekindles” thoughts, feelings, and memories from unresolved past trauma, effecting their current reactions.

11 This history also makes them vulnerable in their interactions with others, and leads to a wide range of issues and behavioral choices that can inadvertently undermine their “credibility” with first responders, police officers, attorneys, etc.

12 Behaviors, Thoughts, and Feelings Associated with a History of TraumaDifficulty expressing emotions: either “shut down” or present as emotionally “unstable”-prone to mood swings, irritability, uncontrolled anger or rage, depression Chronic anxiety/fear/ apprehension/panic Inability to feel emotionally or physically safe Distrustful, suspicious, questions the “motives” of others- or too trusting, not willing to believe someone would hurt them without provocation

13 Behaviors, Thoughts, and Feelings Associated with a History of TraumaInability to be assertive or self-protective Self-medicates and self-soothes with drugs or alcohol Prone to other addictive behaviors: food, sex, gambling, shopping Find themselves in abusive relationships that they cannot leave Gives people countless “chances” ( then gets hurt more) Lead “crisis driven” lives/addicted to drama

14 Behaviors, Thoughts, and Feelings Associated with a History of TraumaStruggle with intimacy Inability to engage in self-care No longer trust their own “radar”; and ignore, rationalize or minimize “red flags” that indicate danger Exhibit poor judgment and a lack of insight Engage in self-sabotaging and self-destructive behaviors Struggle with low self-esteem, feelings of worthlessness

15 Behaviors, Thoughts, and Feelings Associated with a History of TraumaInappropriately aggressive or passive “Read” the body language of others in an effort to be accommodating Allow another person’s agenda to trump their own needs Say “yes” to people please, find it impossible to say “no” Wait for the “other shoe to drop” More concerned about the comfort and happiness of others than self

16 Behaviors, Thoughts, and Feelings Associated with a History of TraumaEngage in self-blame and self deprecating thoughts- take full ownership when others hurt them Try to “fix” or “change” dysfunctional people Make bad decisions based on distorted thoughts/beliefs Remain loyal towards others- even when they are betrayed by them Sexual issues: frigidity, promiscuity, prostitution, sexual dysfunction, dissociate, replicate abuse scenarios

17 Behaviors, Thoughts, and Feelings Associated with a History of TraumaSabotage success: feel unworthy, afraid of being happy, afraid of being “found out” as incompetent Resistant to change: equated with something bad Feel helpless and disempowered: “frozen in time” victim role, far less likely to “fight back” Hyper-vigilant: learned response to stay safe Startle response: easily aroused by benign stimuli Easily triggered by stimuli reminiscent of trauma Highly dissociative: knee-jerk response to threat

18 Behaviors, Thoughts, and Feelings Associated with a History of TraumaHave trouble with memory, often leave out important details or get the chronology wrong Minimize or downplay abusive/unsafe experiences- leads to recanting Make excuses for abusive people in their lives- often because it’s been normalized or excused in the past Align themselves with abusers out of “loyalty,” fear, or a way to not rock the boat and stay safe

19 Behaviors, Thoughts, and Feelings Associated with a History of TraumaShow more concern about consequences for the assailant Rationalize acts done by someone who is drunk- learned in childhood Believe “they deserve” to be hurt and hold themselves responsible when they are Assume that they won’t be believed by others- learned in childhood Usually don’t see themselves as powerful adults

20 Separating Fact From Fiction: Common Misconceptions Related to Sexual Assault Victims

21 Most sexual assault victims do not physically resist.Sexual assault victims are always able to at least try to fight back or escape. Most sexual assault victims do not physically resist. Many victims, with prior histories of trauma, will automatically go into a “freeze” response when confronted with anything threatening. Many victims feel inherently disempowered in the world, and don’t even consider escaping or fighting back as viable options.

22 When a trauma/sexual assault victim recants or changes a part of their story, it often means they are fabricating details. Victims recant out of fear- not because they are lying. Trauma profoundly impacts memory and memory retrieval. The more dissociative a victim is during the event, the less information they will recall.

23 If a survivor can’t remember what happened and can’t give a description of the perpetrator- the trauma didn’t occur. The lack of memory is related to dissociation. Although victims often lack declarative memory (a narrative of facts and details), their implicit memory is intact and very accurate (sensory experiences connected to the trauma)

24 Trauma is stored visually and viscerally.When we are traumatized the experience is stored in the languaging part of our brains. Traumatic events don’t go into the pre-frontal cortex. They stay in the limbic system and brain stem. Trauma is stored visually and viscerally. Therefore, the re-telling of an assault is accessed through flashbacks and somatic/body memory.

25 A belligerent, uncooperative witness is usually lying.What gets interpreted as belligerence or a lack of cooperation may be an attempt to retain a modicum of power and control, or the bravado that survivors try to exhibit. Much of what happens during an interrogation is perceived as threatening and re-traumatizing, which will evoke a fight/flight/freeze response in the victim.

26 Some victims “look for trouble” and put themselves into compromising positions.Victims are not masochistic, but they lack the ability to advocate for their own safety, and gravitate towards what is familiar ( i.e. being unsafe.) Trauma survivors ignore their own radar and miss cues that warn of unsafe scenarios and relationships. Perpetrators have radar about trauma survivors, recognizing and exploiting their vulnerabilities. Survivors learn that it is futile to use their voices, and the other shoe will always drop.

27 When a victim of DV or SA attempts to tell their story to the police, they are often “interviewed” with the Reid Technique.

28 John E. & Associates. INC. Founder John E. Reid Associates. INC.Polygraph Examiner – taught by Fred Inbau, former Director of the Chicago Police Scientific Crime Detection Laboratory Reid established a private polygraph practice in 1947

29 Advancing InterrogationsIn the 1930’s, the “third degree” was commonly used to obtain confessions. An interrogator’s use of intimidation and coercion could cause an innocent person to confess Knowing the “third degree” could cause false confessions, Inabu and Reid, applying psychological principles, developed a structured approach to the interrogation process that in no way relied on coercion or intimidation to elicit the truth 1930’s, the “3rd degree” was commonly used to obtain confessions through the use of intimidation and coercion Resulted in numerous innocent person confessions To address this problem Inabu and Reid developed a structured approach to interrogation of suspects

30 Interview Characteristics and PurposeThe Reid Technique Interview Characteristics and Purpose To develop information to make decisions Develop the subjects explanation(s) of the events in question To determine the truthfulness of the subject Evaluate the verbal and non-verbal behavior Identify inconsistencies and discrepancies To create an environment that will encourage communication Approach in a non-accusatory fashion Passage of the Federal Employee Polygraph Act of 1988 greatly restricts the private employer’s use of polygraph Reid and Associates stepped right in with their structured interview format known as the Behavioral Analysis Interview that permits evaluation of a person’s truthfulness independent of polygraph examination The thing to remember is that it’s designed to be effective when dealing with suspects

31 The Physical Lay-Out of an Interrogation/Interview Room Julia LaytonMaximize discomfort and powerlessness Sterile environment to create isolation, exposure, and unfamiliarity Heighten the “get me out of here” sensation Increase a sense of vulnerability

32 The Physical Lay-Out of an Interrogation/Interview Room Julia LaytonSeated in an uncomfortable chair Out of reach of light switch/thermostat to increase sense of dependence One-way mirror increases anxiety and sense of being “watched” Increase a sense of being “at the mercy of” the interviewer

33 The Attitude of the Interviewer Julia LaytonClose physical proximity to establish control Good cop/bad cop to create false ally Use of leading or inaccurate information to promote confusion or encourage recanting Sustained eye contact to command attention Physical gestures and words of sincerity to build rapport and get person’s guard down

34 Goals of the Reid Technique Munch, Margolis and Thomas, 2009Determine the truthfulness of the subject Identify inconsistencies and discrepancies Observe and evaluate verbal and non-verbal behavior Create an environment that encourages communication Get confession of guilt or complicity, recanting of “false” reporting The technique is a method of questioning subjects and then attempting to assess their credibility The subjects behavior is used to determine if it’s believed they committed the crime in question The Reid Nine Steps of Interrogation are then utilized to persuade the subject to tell the truth about what they did

35 Principles of Behavior Symptom AnalysisThe Reid Technique Principles of Behavior Symptom Analysis Non-verbal behavior is responsible for more than half of total communication Non-verbal behavior is more reliable than verbal behavior The meaning of a verbal response is either supported or contradicted by non-verbal behavior The behavior of the interviewer has an influence on the behavior of the subject The behavior symptoms of the subject become clear as the anxiety of the subject increases

36 Behavioral Attitudes Common to Both Truthful and Deceptive SubjectsThe Reid Technique Behavioral Attitudes Common to Both Truthful and Deceptive Subjects A. Nervous - determine whether nervousness is increasing or decreasing B. Angry - determine reason for the anger - evaluate whether anger is justifiable - attempt to diffuse the anger C. Fearful - may be withholding knowledge others involvement - may be involved in other misconduct

37 The Reid Technique: Typical Truthful Behavioral Attitudes Munch, Margolis and Thomas, 2009Composed Concerned Cooperative Direct and spontaneous Open Sincere Unyielding

38 The Reid Technique: Typical Deceptive Behavioral Attitudes Munch, Margolis and Thomas, 2009Rationalizing Unconcerned Accepting Apologetic Quiet Guarded Crying Overly anxious Overly polite Defensive Evasive Complaining Defeated

39 The Reid Technique: Non-Verbal Behavioral Symptoms Indicative of Truth Munch, Margolis and Thomas, 2009 Upright posture Open and relaxed Lean forward on occasion Frontally aligned with interviewer Casual posture changes Look up with eyes to right when remembering Look up to left when thinking

40 The Reid Technique: Non-Verbal Behavioral Symptoms Indicative of Deception Munch, Margolis and Thomas, 2009 Slouching Very rigid Runner’s position No frontal alignment closed/barrier posture Lack of interest Erratic and rapid posture changes Head and body slump The Reid Technique of interviewing and Interrogation is now the most widely used approach to question subjects in the world It is utilized by federal, state, local and foreign LE. It’s also utilized by large private corporations.

41 In addition, certain body language is indicative of “surrender” including head in hands, elbows on knees, shoulders hunched. Once this has been determined by the interviewer, the goal is to lead the subject into confession or recanting.

42 When dealing with subjects who have a prior history of abuse and trauma, ALL of the “deceptive” behavioral attitudes resonate with their victim mentality and are the learned coping responses of disempowered people who are triggered, threatened and being re-traumatized by authority figures.

43 A victim-centered approach to the work…

44 1. Recognize the impact of trauma on sexual assault investigationMost victims who report do so after some delay Most victims have difficulty remembering all the details of the sexual assault Most victims experience trauma reactions on an ongoing basis after the sexual assault Most victims do not physically resist Prosecutors can use expert witnesses to explain the impact of trauma

45 II. Understand officers make or break cases based on their approach to the victimVictim’s first impression matters Build rapport with the victim, use advocates The recipe for a bad investigation is to form a hypothesis and try to prove it The strategy for a good investigation is to examine all the evidence and let it take you to the truth Always approach a case believing that a crime occurred

46 III. Corroboration of details is essentialPhysical evidence, as possible Sexual assault exam, pictures, crime scene Witness accounts from before and after Outcry witnesses Documentation of sensory and peripheral details from the victim’s perspectives What did “no” look like? Follow up to see the effects of ongoing trauma in the victim’s life

47 IV. Focus on offender behavior not victim behaviorWhy did he choose victim? Are there other victims in his past? Investigate his social circles for “similars” How did he manipulate the environment and circumstances to get the victim into a position of vulnerability? Role of alcohol or drugs Chosen location for the assault Grooming behavior Contrived circumstances Stalking

48 V. Investigate the offender!Investigate the offender’s history Look for other victims; the majority of sexual assaults are by serial offenders Investigate pre and post assault behavior Use of “pre-text” calls Conduct suspect forensic exam Conduct effective interviews/interrogations Look for all violations of the law Require the offender to answer to the crime

49 VI. Thorough documentationGoal of investigation is to be fair, balanced, and thorough While every case is different, investigations must be consistent and thorough Detailed case documentation is critical Effective supervisory review of case is essential Proper case clearance and coding is a must

50 Sexual Assault Survivor RightsTo choose whether or not to report to police To be treated with dignity and respect by institutional and legal personnel To be given as much credibility as a victim on any other crime To be considered a victim of sexual assault when any unwanted act of sex is forced on her/him through any type of coercion, violent or otherwise To make her own decision and change her mind To be asked only those questions that are relevant To give informed consent for any treatment or procedures medical or legal

51 Sexual Assault Survivor RightsNot to be asked question about prior sexual experience To be treated in a manner that does not usurp her control, but enables her to determine her own needs and how to meet them To have access to support people To be protected from future assault To be provided with all possible options To have her/his name kept confidential To receive medical treatment without parental consent, if a minor To be afforded all these rights regardless of the assailant’s relationship to the victim

52 David R. Thomas M.S. Johns Hopkins University Division of Public Safety Leadership

53 Lisa Ferentz, LCSW-C, DAPA The Institute for Advanced Psychotherapy Training and Education, Inc