ISP EMPLOYMENT LAW Associate Counsel Jennifer Canas attended an intensive training program and writes:
Changing the Criminal Justice System’s Response to Sexual Assault/Gender Based Violence in Canada
Trauma Informed Sexual Assault Investigation and Adjudication Training
In mid-March of this year, I attended a four-day training program in Tacoma, Washington, delivered by the National Centre for Campus Public Safety, “Trauma Informed Sexual Assault Investigation and Adjudication. The institute was mainly attended by employees of American post-secondary institutions who conduct or are involved with sexual assault investigations and adjudications. This training fulfills the post-secondary institutions’ legal obligations arising from legislation such as Title IX and the Clery Act.
The Trauma-Informed Sexual Assault training I received provided information about the scientific research on the neurobiology of trauma and how survivors of abuse and violence are impacted. Within this context we learned how to conduct a trauma informed sexual assault investigation and adjudication. In relation to the neurobiology of trauma, I learned that:
- the prefrontal cortex is that part of the brain where “executive functioning” is involved in planning complex cognitive behaviour, decision-making, personality expression, and moderating social behaviour;
- the hippocampus is that part of the brain that normally encodes conscious memories into short-term memory and stores them as long-term memories;
- the amygdala is that primitive part of the brain that functions as a fear center. It detects dangerous threats from sensory information about what a person sees, hears, touches, smells, and tastes and stores fear memories;
- the brain physically changes whenever a traumatic event such as a sexual assault occurs;
- trauma triggers chemicals that cause the pre-frontal cortex of the brain to disengage and triggers the amygdala, to take over the pre-frontal cortex which causes a person to feel afraid and become reactive and vigilant;
- with fear in control, the hippocampus is impaired in its efforts to encode and store “contextual information”, like details about the surroundings where the sexual assault occurred and time sequence of information, like whether the rapist took off his shirt before saying “you asked for it”;
- fear drives the amygdala to control what a person focuses on during the sexual assault. The focus is not on the peripheral details such as whether the assailant used one or two hands to choke the complainant. The focus is on what the person’s senses take in such as the smell of cologne, the sound of a cell phone ringing. Whatever the person focused on during a sexual assault is what will likely be encoded and stored; and
- the amygdala is able to direct the focus away from the experience of the sexual assault to what the person did to survive the event.
The way a person reacts to the trauma triggered by a sexual assault varies. Some persons may react with fight, flight, dissociation from time and perception, or freeze responses. The type of response may be due to previous experience of trauma or where the person senses “no escape” and “plays dead” to increase the chance of survival. However, the fear driven response for survival may be viewed as counterintuitive behaviour because it is inconsistent with the stereotype of the real rape. For example, the stereotype portrays a survivor as strenuously resisting to the point of being injured, whereas a survivor’s fear of immediate serious injury may trigger a freeze response.
Law enforcement, including military police, in North America, have traditionally utilized interrogation as the technique for conducting criminal investigation interviews, including interviews with survivors of sexual assault. Interrogation is directed towards the pre-frontal cortex of the brain, however scientific research has shown that this part of the brain is not normally involved in experiencing, reacting to, encoding and storing the trauma of a sexual assault.[1] Therefore, when interrogation is used to question survivors of sexual assault, they are unable to accurately provide specific detail/peripheral information about the suspect, time sequence of the assault and other important information. In responding to police questions which are framed to obtain chronological, time-sequenced information, sexual assault survivors have often provided inaccurate, inconsistent, “sketchy” information, changed their version of what happened in a later recollection, or omitted information which might have caused law enforcement to question their honesty and their credibility in comparison to the assailant’s credibility.
Stereotype of the Real Rape
Notwithstanding that only 2-8% of sexual assault reports are false, survivors continue to face the stereotype of the “real rape” as a barrier to being believed by law enforcement and the prosecution.[2]
In the stereotype of the “real rape”, the survivor is portrayed as: [3]
- having vigorously resisted the assailant;
- being seriously injured due to the violent attack;
- not exhibiting bad judgment at the time of the attack;
- being hysterical and immediately reporting to the police;
- not changing their narrative of what happened;
- not providing any information that can be proven false;
- being absolutely certain about the details of the sexual assault; and
- actively participating with the investigation and prosecution
The reality is that law enforcement and prosecutors are most often working with survivors of sexual assault who are not ideal witnesses because their descriptions of what happened contain inconsistencies, untrue, incomplete/omitted or exaggerated information.
Apart from the impact of trauma on the brain, there are other reasons why survivors may give information that is inconsistent, untrue, or incomplete. Survivors may fear they will not be believed or will be blamed for the sexual assault.[4] Other reasons include a survivor’s fear of being arrested for engaging in illegal behaviour or the desire to protect the assailant who provides financial or emotional support.[5] Accordingly, they may omit details that will undermine their credibility or exaggerate details because survivors, are aware of society’s stereotype of a “real rape” and want to be believed. [6]
Criminal Justice System’s Response to Sexual Assault in United States
Law Enforcement
The International Association of the Chiefs of Police, “IACP” recognized that the traditional methodology employed by law enforcement for sexual assault investigations was not an effective strategy as reflected in the following statement:
“Law enforcement can create stronger, more thorough reports for prosecution and increase the number of perpetrators behind bars by understanding trauma in the context of sexual assault and implementing trauma-informed investigative strategies.” (Official Blog of IACP, September 18, 2013)
In 2014, the IACP took the opportunity, with funding from the U. S. Department of Justice Office, On Violence Against Women, “OVAW” to initiate a training program, on Trauma Informed Sexual Assault Investigation for law enforcement personnel, until March 2017 when the grant for the funding ended. The goal was to improve the law enforcement capability to provide an effective response to survivors of sexual assault
Law enforcement officers in the IACP training program learned to:
- “1. Describe how specific experiences impact survivor trauma, memory, reactions and behavior and how officer interpretation of this behavior impacts sexual assault investigations.
- Explain how key decisions made by law enforcement impact the progression of a sexual assault investigation.
- Understand that survivor disclosure often occurs in pieces over time and identify strategies for working with survivors to facilitate trust and communication.
- Employ strategies that postpone judgment regarding the validity of a case until a thorough investigation is completed.
- Identify investigative methods and techniques that focus on offender behavior.
- Conduct survivor interviews and document sexual assault cases utilizing physical, psychological and sensory evidence to effectively build a strong case.
- Recognize potential sources of officer bias and ways to mitigate its impact on reports.
- Make case coding and clearing decisions based on analysis of evidence identified through a thorough investigation.”[7]
The faculty who delivered the Trauma Informed Investigation and Adjudication training I received included: Natasha Baker, partner at Hirschfeld Kraemer, LLP, in San Francisco, who advises post secondary institutions on sexual discrimination including gender-based harassment and violence, and provides training on investigations and adjudications; Retired Chief Tom Tremblay, an international advisor and trainer for police, prosecutors, advocates, higher education, the military and private sector. He currently serves as a faculty member for the International Association of Chiefs of Police National Law Enforcement Leadership Institute on Violence Against Women and is a senior Associate for Margolis Healy, a national campus public safety firm; and Danica Wolf, the coordinator of the relationship and sexual violence prevention centre at the University of Missouri, principal investigator of University’s rape prevention education grant, co-chair of the University’s Task Force on Sexual Violence Prevention and Campus Climate, and a member of the Sexual and Relationship Violence Response Team.
Judiciary
Since 1980, the National Judicial Education Program (NJEP) has created and presented judicial education programming about adult victim sexual assault which has focused on providing judges with accurate factual information needed to conduct a fair process and suggesting procedures to minimize victim re-traumatization without undermining defendants’ rights. The training materials include information about a trauma-informed response to sexual assault and the myths and stereotype of “real rape”. Apart from the judicial training, the Legal Momentum’s (NJEP) has created sexual assault curricula that to train justice-system professionals, including prosecutors and other attorneys.
A survivor’s conduct after a sexual assault, which to other people, including judges, is viewed as not logical or exhibiting poor judgment by the survivor is an example of the myth of “real” rape and is referred to as “counterintuitive” behaviour. For example, counterintuitive behaviour is the rape myth that survivors of “real” rape would never initiate or maintain contact with their assailant after the assault. This counterintuitive behaviour was exposed as a myth by judges in the United States who indicated:
“Another misconception is that “real” survivors would never initiate contact with their attacker after the assault. In fact, in non-stranger cases post-assault contact between the survivor and offender is not unusual. Survivors who make post-assault contact with the offender are seeking a way to understand exactly what happened – “how could someone I thought was a friend turn on me?” [8]
Expert Evidence
On June 29, 2012, Pennsylvania became the last state to allow expert testimony to explain victim behavior in sexual assault cases by enacting Section 5920 of the Judicial Code. Qualification as an expert witness is based on the witness’s knowledge, skill, experience, training or education that will assist the trier of fact in understanding the dynamics of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted. As a qualified expert, the witness may testify to facts and opinions regarding specific types of survivor responses and behaviors. However, the witness’s opinion regarding the credibility of any other witness, including the survivor, is not be admissible. An expert’s explanation about counterintuitive behavior assists the court to more accurately assess the credibility of the survivor’s statements.[9]
Expert testimony informs the court about the dynamics and complexity of sexual assault, provides a context for understanding sexual assault survivors, and counters entrenched myths and misperceptions about sexual assault and sexual assault victims.
Criminal Justice System’s Response to Sexual Assault in Canada
The Standing Committee on the Status of Women gave Parliament its Report, dated March 2017, ‘Taking Action to End Violence Against Young Women and Girls in Canada”. Under the heading, “Training for Law Enforcement and Judiciary”, the Report contained information that had been given to the Committee by witnesses regarding the experience of young women and girls who are involved in the criminal justice system. These witnesses informed the Committee that:
- law enforcement agencies and the judiciary, who are male-dominated and “do not intimately understand the realities of being a young woman” do not appropriately respond to serve the needs of young women and girls with respect to gender-based violence;
- police officers, crown attorney, and judges often believe in sexual assault myths and stereotypes that define “survivor” and offender” and engage in survivor blaming; and
- law enforcement and legal authorities are not aware or do not understand the seriousness of gender-based violence.[10]
It is significant also that witnesses informed the Status of Women Committee that:
“law enforcement officers and members of the judiciary should receive trauma-informed training on gender-based violence, whereby they would be educated on understanding, recognizing and responding to the effects of different forms of violence.[559]
Using a trauma-informed approach would increase law enforcement officials’ abilities to “conduct competent interviews and investigations, and increase the rate of successful prosecution.”[560] Moreover, the Committee heard that there should be specialized crown attorneys who are trained to work with women who have experienced violence and have an understanding of the trauma they have experienced.[561]
Furthermore, law enforcement and judicial authorities should receive educational workshops focused on gender equality, in order to counter discriminatory attitudes and sexual stereotypes.[562] Witnesses asked that the work of law enforcement agencies and the judiciary be guided by empathy[563] with the goal of reducing the re-traumatization of survivors”. [11]
The above witness statements, while specifically directed to the experience of young women and girls, also mirrors the experience of other women in Canada who have been involvement with the criminal justice system in relation to gender-based violence.
As we know from the Globe and Mail series on “Unfounded” sexual assault reports, survivors of sexual assault, who are mostly women, faced significant barriers in getting law enforcement to effectively respond and investigate their complaints.
Even if they succeed in getting to trial, sexual assault complainants face re-victimization under cross-examination and upon the judiciary’s assessment of their credibility as illustrated by the Ghomeshi trial.
Justice Horkins’s acquittal of the sexual assault and choking charges against Ghomeshi was based on his assessment that each of the complainant’s evidence was unreliable when tested under cross-examination and was therefore incapable of displacing the presumption of innocence beyond a reasonable doubt. He noted the complainants’ inconsistencies in evidence obtained from media and police interviews and during the trial, varying sets of facts and changing narratives, the “after the fact” behaviour following the alleged assaults, omissions of relevant evidence and unbelievable explanations for the lack of disclosure, all of which he concluded weighed heavily in the balance against the credibility of each of the complainants.
In addition, while Justice Horkins cautioned against applying stereotypes of how a “survivor of abuse will, or should, be expected to behave” he nonetheless determined that the complainants engaged in counterintuitive behaviour as reflected in this statement:
“Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him. In many instances, their conduct and comments were even inconsistent with the level of animus exhibited by each of them, both at the time and then years later. In a case that is entirely dependent on the reliability of their evidence standing alone, these are factors that cause me considerable difficulty when asked to accept their evidence at full value.”[12]
The Ghomeshi trial and its outcome is a reflection of how the criminal justice system in Canada has traditionally responded to survivors of sexual assault in the absence of any understanding by law enforcement, prosecution, defence, and the judiciary, about the impact of trauma on the brain, the dynamics and complexities underlying a complainant’s responses to such an assault, and the myths and stereotypes of sexual assault.
The prosecution in the Ghomeshi case could have presented expert evidence to explain the impact of trauma, dispel rape myths, and place the complainants’ inconsistencies, changing versions of the events, inability to recall peripheral details, “untrue” statements, the omission of evidence and the counterintuitive conduct, into a trauma-informed context, all of which Justice Horkins could have weighed in the balance when assessing each of the complainant’s credibility.
Although the lack of expert evidence might not have changed the outcome of the Ghomeshi trial, it would have helped to shift society’s paradigm away from the myths and stereotypes of “real rape” to a more realistic and accurate depiction of sexual assault which would encourage more survivors to come forward to report sexual assaults.
A search through the criminal case law discloses that expert testimony is used for the prosecution of sexual assaults of children.
During the training, I spoke to retired Chief Tremblay who informed me that, with the exception of the military police in Trenton, where he conducted a two (2) day training session for Trauma Informed Sexual Assault Investigations on September 24 and 25, 2016, he had not been asked by Canadian Law Enforcement agencies to provide this type of training in Canada.
Random checking of some of the law enforcement agencies across Canada reveals that Trauma Informed Sexual Assault Investigation training is not currently being provided to police officers. The website of the Canadian Police College and the BC Justice Institute does not list this type of training approach.
However, the Canadian Association of Chiefs of Police “CACP”, issued a statement on February 10, 2017 requesting that its Survivors of Crime Committee and Crime Prevention Community Safety and Wellbeing Committee recommend training standards, including trauma-informed investigation, procedures and policies based on best practice and share them throughout the policing community.
In Alberta, the government produced a Best Practices Guide for the Prosecution and Investigation of Sexual Assault in 2013. However, it does not provide information about the impact of trauma on the brain to explain how sexual assault complainants may respond before, during or after a sexual assault and the need to change the methodology of questioning.
In B.C. a trauma-informed approach is utilized by social services professionals, particularly survivor services workers to assist survivors of sexual assault within the criminal justice system. On March 01, 2017 a two-day Trauma Informed Practice “TIP” Symposium was held for Justice, Public Safety and Anti-Violence Community Sectors. The Symposium provided information on the impact of trauma and included panels consisting of Crown Counsel, RCMP and front-line Anti-Violence professionals. One member of the panel, Staff Sargeant Ben Wilkinson, of the Vancouver Police Department “VPD”, had worked 26 years in the Sex Crimes Unit. With respect to the need for training, she noted that in the past “sharing” was not the practice between agencies however this had changed and she encouraged law enforcement officers to work with their counsellors in survivor services to learn from them how to approach the survivor. Staff Sargent Wilkinson indicated that while Dr. Lisak and Dr. Haskell had provided information to the VPD regarding trauma, training needed to extend beyond specialized units and that it should be provided at the police academy and beyond BC to achieve consistency. She also indicated that the Chiefs of Police had a national framework for domestic violence which will be trauma informed.
The British Columbia Centre of Excellence for Women’s Health, B.C. Ministry of Health, Mental Health and Substance Use Branch, and Vancouver Island Health Authority, Youth and Family Substance Use Services collaborated to develop the Trauma-Informed Practice Guide 2013 to assist clinics, agencies and groups assisting clients with mental health and substance use concerns.
On May 19, 2016, British Columbia became the second province, after Ontario, to enact legislation, Sexual Violence and Misconduct Policy Act (the “Act”) requiring mandatory policies and procedures regarding sexual assault and sexual violence on post-secondary campuses. The sexual assault policies of York University, University of British Columbia, and Victoria University, require those involved in the complaint process to have training in trauma-informed response and practices to avoid re-traumatization of survivors of sexual assault.
Conclusion
Justice, for survivors of sexual assault/gender based violence, demands that Trauma-Informed Sexual Assault training and education about the impact of trauma on the brain, complexities and dynamics underlying a survivor’s response to such assault, the myths and stereotypes of sexual assault, and including investigative/questioning skills be provided within the whole of the criminal justice system across Canada, otherwise we will continue to see justice denied.
Survivors of sexual assault should be treated with dignity, respect, and compassion which can be achieved with an effective trauma-informed response by the Canadian criminal justice system. The lack of such response is morally wrong, legally unjustifiable, and may result in more Charter and human rights litigation[13]. It is also very costly given the significant and rising physical and mental health care costs and other related costs such as loss of productivity, and the loss of our humanity.
The federal government announced on June 19, 2017 that it would be providing funding to prevent and address gender-based violence. This funding should be directed towards mandatory trauma-informed sexual assault training and education, across Canada, for health professionals, law enforcement, prosecutors, defence counsel, and judges to assist them in carrying out their respective roles and responsibilities in a more effective and just manner.
[1] The Forensic Experiential Trauma Interview (FETI) by Russell W. Strand, United States Army Military Police School. The National Center for Campus Public Safety as materials for Trauma-Informed Sexual Assault Investigation and Adjudication Institute pages 233-234
[2] False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault Dr. Kimberly A. Lonsway, Sgt. Joanne Archambault (Retir.), Dr. David Lisak, The Voice (Helping Prosecutors Give Survivors a Voice), American Prosecutors Research Institute Volume 3 No. 1, pages 3-4 reproduced 2016. The National Center for Campus Public Safety as materials for Trauma-Informed Sexual Assault Investigation and Adjudication Institute.
[3] Ibid
[4] Supra note 2, page 5
[5] Ibid
[6] Ibid page 6
[7] http://www.theiacp.org/Trauma-Informed-Sexual-Assault-Investigation-Training
[8] “Judges Tell: “What I Wish I had known Before I Presided in an Adult Survivor Sexual Assault Case: The Challenges of Adult Survivor Sexual Assault Cases” page 8, The National Judicial Education Program, 2011.
[9] Page 4, “She Didn’t Scream, So She Must Have Wanted It: Explaining Counterintuitive Victim Behaviour”,
- Ann Ratnayake, Senior Staff Attorney, National Center for Prosecution of Violence Against Women
[10] Page 88
[11] Ibid
[12] R. v. Ghomeshi 2016 ONC J155, Page 24
[13] A charter lawsuit was filed on March 31, 2017 with the Ontario Supreme Court as Ava Williams v. London Police Services Board, Paul Gambriel and John Doe Police Officers.