The Missing Piece in the Search for Justice

We’ve seen it time and time again.  A victim/survivor of domestic violence or sexual assault decides to take the incredibly brave step of coming forward to report the crime to law enforcement, only to face humiliation and an ultimate lack of justice. Here’s an example of how the story too often goes:

Jane and her husband Bill get into a fight late one night.  Bill begins to become aggressive, as he often does, screaming and throwing things.  The upstairs neighbor is awakened by the commotion and calls the police.  By the time they arrive, Bill has physically attacked Jane, but in a way that leaves no marks. The police ask Jane some questions, and she tells them what has happened.  Based on Jane’s report, and the broken dishes and picture frames strewn around the apartment, they determine that Bill has in fact been violent and arrest him.  

The next day, after a night of only a couple hours of fitful sleep, she gets a call from a detective who asks her detailed questions about what happened last night.  Her memories are fuzzy. She tries to make sense of them and tell him what happened, but she ends up giving a report that is different in several key details than the report that police took the night before at the apartment.  

Later, the prosecutor who has been assigned to her criminal case interviews her.  Jane’s memory has cleared up a little since talking with the detective, but there are still some parts of the night that are missing.  She wants to help with the investigation, so she answers the questions to the best of her ability.  But, because her memories aren’t clear, her story comes out slightly different from the two prior reports. The prosecutor, who has reviewed the previous reports, decides that since the story is inconsistent, the victim is not credible and therefore declines to prosecute.      

While this scenario is fictional, what we see in Jane’s story is very common.  If a sexual assault or incident of domestic violence is reported to law enforcement, the process requires the victim/survivor to tell their story multiple times- often, at the very least, to a law enforcement officer, a detective, and if the case goes to court, a judge and maybe even a jury. Many times, as the story is repeated over the months, there may be some slight or even significant changes to that story. Because of those discrepancies, which are usually quickly pointed out and belabored by the defense attorney, the victim is thought to be lying and therefore does not get the justice they deserve.

Advocates and survivors know that there are many common psychological reasons why victims’ stories may change.  A survivor may fear retaliation from the offender- the person who attacked them may be pressuring them to change their story by threatening to hurt them even worse if they continue going forward with the case.  Sometimes survivors feel shamed or humiliated by the reporting process, or by having to tell intimate details of an event.  Survivors may feel pressure from friends or family members to drop the case or change their story.

And while these and the many other reasons for discrepancies are completely valid, the piece that’s missing is a basic understanding of the brain. Inconsistencies in the retelling of traumatic events can easily be explained using the neurobiology of trauma.

When we feel overly stressed, under attack or in danger our body is designed to react to keep us safe.  Dramatic changes occur in the brain during a traumatic event, such as a sexual assault or incident of domestic violence. Some of us flee, some of us fight and others freeze.

There are three parts of the brain that are especially associated with crisis response.  The frontal lobe (often called the “thinking brain”) is the part of the brain responsible for decision-making and executive thinking- it allows you to plan, analyze situations, solve problems and make choices.

The midbrain, often referred to as the “emotional brain,” is the region where the fight or flight response is generated. The emotional brain is responsible for emotion, short-term memory, and the body’s response to danger.  

And finally, the brain stem (often referred to as the “reptilian brain”) maintains vital body functions like breathing and heart rate.  It acts out of instinct, responding to stimuli with survival as its focus.

In the case of a sexual assault or physical attack, the midbrain registers danger and signals various parts of the brain to prepare for the attack. This sparks many changes in the body that are important for survival, including an increase in heart rate and blood flow, the releasing of energy stores, and more focused attention.   But it also has a detrimental effect on normal brain function, specifically on the “thinking brain”, whose ability to operate properly quickly degrades.  When the midbrain is signaling danger, the frontal lobes of the brain nearly shut down. This is not to say that a person can’t make good decisions while in a crisis, it’s just more challenging.

Many of us can recognize this effect when we look back on how we acted during a time when we were in crisis.  We might think “Why did I do that?” or “Why didn’t I do the thing that seems really logical to me now?”  Well, now you know: because your “thinking brain” wasn’t functioning properly.  You couldn’t access the part of your brain that normally makes decisions and guides your actions in a logical way.

Not only do these brain changes negatively impact executive thinking, they also severely impact the memory encoding process.  New memories are encoded in a part of the brain called the hippocampus and then eventually transferred to the frontal lobes for long-term storage. But since the frontal lobes have been significantly degraded, those memories don’t get stored properly. Memories are fragmented and are almost always sensory fragments.  This means that instead of sequential or chronological memories of an event, the brain can only remember sensory details such as sights, sounds, smells.

Therefore, it’s only natural that trauma victims have a hard time retelling the event.  There is no sequence or details to the memories that are stored in their brains.  But, that’s what our criminal justice system asks victims to do- remember the event and tell exactly what happened and in what order.  It’s understandable that law enforcement is asking these questions because they are trying to get information and figure out what happened. It just isn’t possible for most victims, given the state that their brain was in.

What generally happens is that many survivors will try to answer the questions because they want to be a good witness- they want to try to help the officer with the investigation.  So they try to make sense of the memory fragments they have and put them into what seems like the most likely order.  But that leaves a lot of room for getting things wrong.  And then, when they are asked the same questions a few days, weeks or months later- either by the same investigator, or an attorney, or a judge- they may not retell it in quite the same way, because that never actually was the way the memories were stored.  And now they’ve given statements with different information, or information that’s in a different order- an inconsistent statement.  Defense attorneys will jump all over this inconsistency to make the case that the victim is lying or making it up. When all that really happened was that the interview process was inappropriate for someone whose brain has been impacted by trauma.

How dramatically our criminal justice system would be changed if all involved parties received as little as 20 minutes of training on how trauma impacts our brains.  If those who respond to victims (law enforcement officers who take victims’ initial reports, detectives and prosecutors who later interview them, juries and judges who hear victims’ testimonies in court) knew that the brain isn’t functioning properly during crisis- that the parts of the brain that allow for chronological memory storage are impaired.  If they knew what trauma victims can and can’t recall effectively.

On top of that, think of the positive change that could come from training the criminal justice system to ask the kinds of questions that don’t set victims up to be perceived as liars in the courtroom.  Rather than asking questions like “tell me what happened and start at the beginning”, what if they asked sensory based questions like “tell me everything you can remember about what you smelled or heard.”  These questions not only demonstrate a sensitivity to the effects of trauma, but they also allow law enforcement to get solid information that they can rely on. Which brings them much closer to the ultimate goal: justice.