Trauma-informed Practice - what are the barriers for our Criminal Justice System?

by VSS staff member Darren Hincks

This article examines trauma-informed care and practice from an organisational perspective; in particular the organisational culture of the criminal justice system and the barriers to a trauma-informed criminal justice system (CJS).
 
It is widely acknowledged that the adversarial nature of Australia’s CJS is a fundamental issue for survivors of crime:  “The adversarial system is designed to achieve justice for the accused, not the victim” - The Conversation, March 29, 2018   This system will often cause further trauma for survivors of crime; “It …provides strong guarantees for the rights of the accused but essentially no guarantees for the rights of the victim. If one set out by design to devise a system for provoking intrusive post-traumatic symptoms, one could not do better than a court of law.” - Judith Lewis Herman, Trauma and Recovery: The Aftermath of Violence - From Domestic Abuse to Political Terror 

Currently State prosecution departments do offer some services to support survivors through the CJS process (such as South Australia’s Witness Assistance Service ) However, the intimidating structure of the court system, defence questioning of the survivor’s credibility, and social attitudes especially in relation to crimes such as sexual assault, may leave survivors feeling that the process is biased toward offenders - they feel revictimised. Such instances of secondary victimisation and overall lack of satisfaction from survivors’ experience in the prosecution process suggest that our current CJS is far from being trauma-informed.

An organisational framework for trauma-informed practice was first founded by Harris and Fallot, 2001 and adopted by Kezelman and Stavropoulos, 2012. This framework is considered the building block for all organisations looking to be trauma-informed.  

In the human services sector, implementing this framework has been facilitated by a shared understanding of human behaviours and mental health issues. However, implementing trauma-informed care and practice into an existing organisational structure as vast and complex as the CJS, which has no such shared understanding, will prove challenging (Fallot & Harris, 2011 ). Those involved may struggle with the logistics of integrating the framework because the process can involve a complexity of training and self-assessment procedures (Harris and Fallot, 2001 ) ; can take several years to fully adopt (Bloom, 2013); and requires a fundamental change in organisational culture (Fallot & Harris, 2011). For a comprehensive trauma-informed program to be fully effective within the CJS, a shift in the organisational culture may face a significant barrier in the form of collective beliefs, and the individual assumptions and principles of its members. Most critically, it would require a monumental shift in the vision, language, environment, and strategic aims of the court and legal systems (Needle, 2010).
 

Traditionally, prosecution’s primary function has not been to address the harm inflicted on survivors, much less acknowledging survivors’ trauma. The law and order approach has also been criticised for maintaining focus on the offender, and being counterproductive to survivors’ need for justice and support.

Significant barriers also exist in terms of formulation, enactment, and ideological reasoning in legislative approaches aimed to protect survivor-witnesses. Daly (2011) argues that innovative approaches may be required to fill the gap: a mix of formal and informal legal mechanisms which emphasise victim participation, voice, and validation within the criminal justice system.

Another barrier exists in the fact that currently there are no officially recognised ‘best practices’ for prosecutors in the shape of a trauma-informed training program. Legal practitioners need a clear conceptual framework to understand what may cause survivors of sexual assault to re-experience trauma while engaged as witnesses for the prosecution.

Some drivers for change

Prosecutors themselves have suggested that trauma reactions may be better managed when they are able to discuss alternate ways of presenting testimony, such as breaking sessions down into shorter sessions (Burrows and Powell, 2014). Overall, collaborative interactions with prosecutors help reduce survivors’ anxiety and assist the testimony process to run smoothly. Prosecutors note that reassuring witnesses assists them to remain focused during cross-examination and not become ‘rattled’ by aggressive questioning techniques by the defence (Herman, 2003 )

South Australia does have a specialised Witness Assistance Service (WAS) to support eligible survivors of crime through the court process. Although the fundamental drive behind witness-oriented programs such as WAS, and survivor-oriented programs may be different, their success in executing their mandate of facilitating a credible witness, and survivor care, is becoming more reliant on support from each other. For instance, prosecution departments are starting to acknowledge that to have survivors willingly participate in the prosecution process, prosecutors must be able to facilitate the needs of survivors (Konradi, 2001 ). This is especially so for survivors who may be experiencing trauma. Prosecutors’ responsibility now extends beyond assessing evidence of physical injury to seriously understanding the complex ramifications of crimes such as sexual assault. Indeed, prosecutors are now taking a multi-agency approach in managing the effects of trauma by linking with a number of diverse agencies that address concerns that have traditionally been considered unrelated, such as substance misuse (de Lint, Marmo, Groves, & Pocrnic, 2017 )

 In conclusion, the implementation of a trauma-informed framework within our Criminal Justice System would reduce survivors’ risk of secondary victimisation and help maintain the survivor-witness’s credibility during trial. While the operating frameworks of the Criminal Justice System and Trauma-informed Care and Practice are fundamentally opposed, there is scope for prosecutors and the CJS more broadly, to have greater awareness around psychological trauma and the trauma reactions of survivors of crime.

  

   

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