A campaign to reframe how we think about the credibility of a survivor’s story.
One of the foundations of our court system is witness testimony. The opportunity for people with knowledge of events to recite facts, and the chance for the adverse party to cross-examine, is a fundamental part of the truth-seeking function of a trial.
Yet, it’s not uncommon for our systems to question whether a survivor of domestic violence or sexual assault is credible just because a witness doesn’t behave, or look, the way the court expects. NYLAG lawyers see it all the time.
Examples of how a survivor’s credibility is questioned.
Survivors are harmed by a lack of understanding about credibility. Here are some examples:
Legal experts expect “credible” witnesses to tell linear stories, but many survivors don’t remember traumatic events in that way. If a regular memory plays like a movie, traumatic memories, like domestic violence and sexual assault, play like a highlight reel of thoughts, sounds, feelings, as told through sensory details like sounds and smells. Ordinary details like dates and time likely don’t matter to one’s survival—so it’s not remembered, yet it’s the information our legal system seeks and relies on to assess someone’s credibility.
When recalling a traumatic event, a survivor may respond in unexpected ways. They may have a flat affect, tell their story in non-chronological order, and yes, they may even experience uncontrollable laughter. These are completely common reactions to recalling trauma.
When assessing credibility, asking “Why?” places a survivor’s credibility immediately into question while doing very little to get to the truth of what happened. “Why didn’t you fight back?” “Why didn’t you report?” are common questions asked of survivors.
Consider this: When we experience something traumatic our bodies immediately trigger a response called the “fight, flight, or freeze”—a primitive and powerful survival reaction. Society applauds survivors when they fight or flee, yet blames them when they freeze. But many survivors freeze. Survivors often say, “I froze because I was terrified and didn’t know what to do.” Research shows fear of retaliation or of not being believed are the most common reasons that victims do not report.
Asking “Why?” may also be heard as placing partial blame or responsibility on a survivor for what happened to them rather than place blame on the person perpetrating harm.
Our society, including the legal system, has traditionally defined victims of intimate partner violence as white, heterosexual, middle-class women. Although the plain language of laws may read as inclusive, the practice is one of exclusion to access and fair treatment.
Racialized stereotypes like “Black women just like to fight or are violent and angry” or “Latina women are feisty and hotheaded” or “Asian women are submissive and trained for this sort of behavior,” further alienate people of color from access to services and justice. Stats show that black women are twice as likely to be killed by a spouse, and four times more likely to be killed by an abusive partner, but may not report abuse for some time, due to the strained relationship between the legal system, law enforcement, and communities of color. Many women of color can feel that if they report abuse to law enforcement they are unlikely to be believed, or risk being charged themselves, or worse. Courts do not often recognize these nuances and instead question a survivor’s credibility, asking “Why didn’t you report or leave sooner?”
Credibility can also be examined in the context of poverty. Survivors with little to no income often stay in abusive relationships because the power dynamics and economic coercion leave them with few or no options. Courts wonder why victims of domestic violence stay in abusive relationships because they may not understand how experiencing poverty, or fear of experiencing poverty, may impact the choices that a survivor makes.
Many immigrants flee to the United States, having endured profound trauma and abuse, including domestic violence. This very trauma may often have a lasting effect on survivors’ memories and abilities to tell their stories – the very stories that may be at the heart of their asylum claim.
However, increasingly under President Trump, immigrant survivors, suffering from the trauma of the abuse, are wrongfully assumed to not be credible and making up or exaggerating claims to get immigration relief. Immigrant survivors face the same, or greater, hurdles as non-immigrant survivors. Immigration judges and asylum officers need to understand how trauma impacts how survivors tell their stories and to consider credibility in that light. The alternative is dangerous as perpetrators of violence in the U.S. often use the threat of deportation as a weapon against survivors to inhibit them from engaging with the courts to obtain help, and survivors who don’t get the immigration relief they need may be forced to return to the violent situations they desperately fled.
The domestic violence movement began with a heteronormative lens (i.e. woman as victims and men as a perpetrators). This reinforces the myth that men cannot be survivors and women can’t be aggressors (which is false, though women statistically are at higher risk of being victimized). Therefore, when claims of abuse do not fit this narrative, the abuse itself may not be seen as credible nor taken seriously.
Domestic violence survivors who identify as transgender or gender non-conforming are especially vulnerable. Statistically, they experience dating violence at higher rates than the general population. Trans people are more likely to be discriminated against when seeking help from law enforcement or the courts and therefore may decide it’s safer not to reach out for help at all.
It is imperative that our courts understand trauma and domestic violence and its impact on survivors. Justice is elusive for survivors when our legal system and all its players do not reflect an understanding of trauma.
Survivors are more likely to abandon their case because of the pain of reliving their abuse when faced with courts who appear hostile to their experience. Judges, other court personnel, police, and the like, need to approach survivors with these realities of how trauma impacts someone’s choices, actions, and re-telling of events. This does not mean they cannot question them. Inquiry into facts is how our justice system works. Still, courts need to create an environment of safety and security. They need to be trauma-informed in their inquiries and judgments. That’s the only way the full story will come out.
“Assessing credibility must take into account that there is no such thing as a ‘typical’ survivor of domestic violence or sexual assault. Each person’s story, and reaction in telling it, is unique. Our legal system must approach each case without prior prejudices and expectations.”
-Lorna Zhen, Supervising Attorney
#IamCredible—We need your help.
At NYLAG, we advocate for our clients, explaining why reactions to trauma are different in every survivor and can show up in ways we don’t always expect. We continue to strengthen our efforts to provide trauma-informed legal representation because it is crucial for our clients’ paths towards self-determination, safety, and security.
We need your help to change how our society and courts think about credibility. Doing so could transform the justice system to better help survivors of domestic violence and their children. It can save lives.
Give today to support free trauma-informed legal services for survivors.
Share your stories using the hashtag #IamCredible.
Make #IamCredible a movement to reframe the conversation about credibility and domestic violence/sexual assault.