Tragically, people may leave the courtroom worse off then when they came in having suffered “Jurigenic Harm.”
Why do judges and other justice professionals need to be cognizant of trauma as it relates to court cases? Like it or not, trauma seems to be the overwhelming negative factor affecting many people who come to court. From treatment court participants to those who have experienced child abuse and neglect, “adverse childhood events” (ACE) seem to be present in many cases. Tragically, people may leave the courtroom worse off than when they came in having suffered “Jurigenic Harm.”[1]
Some of the health issues and risk factors that individuals exposed to ACEs in childhood experience at a higher rate than those who did not have trauma include:
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Aligning What We Know With What we Do
We need to change the paradigm from “What’s wrong with you”to “What’s happened to you.”
Judge Mary Triggiano (WI) says, “Many courts have come to recognize that acknowledging and understanding the impact of trauma on court participants may lead to more successful interactions and outcomes. Courts that do not practice trauma-informed decision making may inadvertently increase the level of trauma that families experience. Every interaction is an opportunity.”[3] We need to change the paradigm from “What’s wrong with you”to “What’s happened to you.”
“Dysfunctional families and distressed children go hand in hand,” according to Dr. Bruce S. McEwan,[4]and current scientific evidence seems to be backing that up. Judges in child dependency courts must be trained to appropriately respond to improve brain wellness of the children in these cases
SAMSHA’s Six Key Principles of a Trauma-Informed Approach [5]
A trauma-informed approach reflects adherence to six key principles rather than a prescribed set of practices or procedures for both litigants and witnesses:
Trauma-specific intervention programs generally recognize the following:
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- The survivor’s need to be respected, informed, connected, and hopeful regarding their own recovery.
- The interrelation between trauma and symptoms of trauma such as substance abuse, eating disorders, depression, and anxiety.
- The need to work in a collaborative way with survivors, family and friends of the survivor, and other human services agencies in a manner that will empower survivors and consumers.[7]
The Office of Victims of Crime has four very specific recommendations to have a trauma-informed courtroom:
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- Encourage Suggestions from Other Court Stakeholders.Encourage parties to cases, attorneys, and guardians ad litem to make specific requests for any possible and reasonable adjustment to the proceedings.
- Step Down and Leave the Judge’s Robe at the Bench.[8]On a limited basis, if no one’s personal safety is compromised, a judicial officer may consider sitting at the victim’s table with the pro se party, especially if the victim does not have legal representation, or with any minor child and the child’s guardian ad litem or court-appointed special advocate. If a judicial officer elects to join the parties at the tables, the officer might consider literally leaving the judge’s robe on the bench and thus appearing more “”The intimidation factor perceived by pro se parties and children in a courtroom when interacting with an authority figure (dressed differently and seated in an elevated location) can invoke trauma triggers or otherwise discourage interaction.
- Adjust the Lighting in the Courtroom. Often courtrooms have multiple lighting options and decreasing the lighting may feel more comfortable to individuals who are light sensitive or have certain sensory limitations. Discuss this with the victim, victim’s case manager, or representative to ensure that dimming the lights is not potentially triggering.
- Provide Simple Conveniences Like a Box of Tissues or a Bowl of Snacks.Aside from providing an energy boost for anyone in the courtroom, a piece of candy or fruit can often help victims feel calmer and more welcome.
Specific Suggestions for Trauma-Informed Judicial Practices [9]
- Courtroom Procedure:
Court officer handcuffs an individual without warning.
Reaction of Trauma Survivor
Anxiety about being restrained; fear about what is going to happen.
Trauma-Informed Approach
Tell the court officer and individual you intend to remand them. Explain why. Explain what is going to happen and when. “The officer is going to walk behind you and you will be handcuffed.”
- Courtroom Experience:
Judge remands one drug court participant for having a positive test but not another. They are both in the courtroom at the same time.
Reaction of Trauma Survivor
Concern about fairness; feeling that someone else is getting special treatment.
Trauma-Informed Approach
Explain for first participant, sobriety is a proximal goal and for second it is not. Compare time in the program and progress in treatment. Explain jail is a last resort and you hope participant will not give up on recovery.
- Courtroom Experience:
Individuals who are agitated or “acting out” are required to wait before speaking to the judge.
Reaction of Trauma Survivor
Increased agitation; anxiety; acting out.
Trauma-Informed Approach
Provide scheduling information so participants know what will be expected of them and when. Prioritize those who appear before you and when. Those who are especially anxious may have the most trouble waiting and be more likely to act out.
Courtroom Experience:
A judge conducts a sidebar conversation with attorneys.
Reaction of Trauma Survivor
Suspicion, betrayal, shame, fear.
Trauma-Informed Approach
Tell participant what is happening and why. “We have to discuss some issues related to your case. We just need a minute to do it on the side.”
- Judge’s Comment:
“Your test came back dirty.”
Perception of Trauma Survivor
“I’m dirty.” “There is something wrong with me.”
Trauma-Informed Approach
“Your drug screen showed the presence of drugs.” “Your drug test was positive.”
- Judge’s Comment:
“Did you take your meds today?”
Perception of Trauma Survivor
“I’m a failure. I’m a bad person. No one cares how the drugs make me feel.”
Trauma-Informed Approach
“Are the medications your doctor prescribed working well for you?”
- Judge’s Comment:
“You didn’t follow the contract. You’re going to jail. We’re done with you. There is nothing more we can do.”
Perception of Trauma Survivor
“I’m hopeless. Why should I care how I behave in Jail? They expect trouble anyway.”
Trauma-Informed Approach
“Maybe what we’ve been doing isn’t the best way for us to support you. I’m going to ask you not to give up on recovery. We’re not going to give up on you.”
- Judge’s Comment:
“I’m ordering you to get a mental health evaluation.”
Perception of Trauma Survivor
“I must be crazy. There is something wrong with me that can’t be fixed.”
Trauma-Informed Approach
“I’d like to refer you to a doctor who can help us better understand how to support you.”
Vicarious Trauma
The symptoms of vicarious trauma are closely related to post-traumatic stress disorder
Trauma affects not only the victims, witnesses, and litigants who appear in court, but also judges and other court staff. Vicarious trauma is defined as “repeated or extreme exposure to details of the event(s).” Repeated exposure to pictures or videos (such as autopsy photos; a dead body at a crime scene; the results of an assault) qualifies as vicarious trauma if it is related to work. Anyone who regularly works or appears in courts may be exposed to this kind of repeated exposure to graphic photos, videos, or testimony about horrific events.
The symptoms of vicarious trauma are closely related to post-traumatic stress disorder (PTSD) so that judges, court personnel, or jurors who sit through child abuse, domestic violence, or other case types providing graphic details of someone else’s traumatic experience are at risk. Their need for treatment options is being recognized by many state court systems.[10]
Resources
- “Healing Invisible Wounds”
- Essential Components of Trauma-Informed Judicial Practice,” SAMHSA (2013)
- SAMHSA’S National Center on Trauma-Informed Care (NCTIC)
- The National Child Traumatic Stress Network (NCTSN)
- GAINS Center for Behavioral Health and Justice Transformation
- Ten Things Every Juvenile Court Judge Should Know About Trauma and Delinquency
- Trauma Informed Care in Mental Health Courts
- Family Court Tool Kit
Footnotes
[1] Just as iatrogenic effects harm caused by hospitals, jurigenic is harm caused by judges.
[2] The Resilience Project, American Academy of Pediatrics (2018).
[3] Triggiano, Mary Hon., “Childhood Trauma: Essential Information for Courts,” Wisconsin Association of Treatment Court Professionals, (Mar. 26, 2015)
[4] McEwan, Bruce S., Ph.D., “Effects of Stress on the Developing Brain,” Cerebrum (Oct. 2011).
[5] Substance Abuse and Mental Health Services Administration (SAMHSA)
[6] Trauma-informed Care, SAMHSA (04/27/2018)
[8] This may not be permitted in every state. See, e.g., 2018 California Rules of Court Rule 10.505. Judicial robes
[9] “Essential Components of Trauma-Informed Judicial Practice,” SAMHSA (2011)
[10] “Trauma in State Courts,” National Center for State Courts (2018)
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