A campaign to rethink how the legal system assesses the credibility of a domestic violence survivor’s story.
Witness testimony is often the most important component of a trial. The opportunity for people with knowledge of events to recite facts, the chance for the adverse party to cross-examine, and the jurist’s ability to observe the witnesses’ demeanor during testimony is a fundamental part of the truth-seeking function of a trial.
Yet, it is common for the legal system to question whether a survivor of domestic violence is credible because a witness doesn’t behave, look, or speak, the way the court may expect. Our society, including the legal system, is rife with implicit bias that often results in survivors not being believed. This is even more prevalent when a survivor is a person of color. Racism and implicit bias result in survivors who are people of color being less believed, less protected, and less likely to feel safe engaging with systems in the future. This becomes more pronounced when those survivors are also experiencing poverty.
“Adults view Black girls as less innocent…than their white peers.”
-Georgetown Law’s Center on Poverty and Inequality
#RethinkCredibility focuses on three important aspects that must be carefully considered when our legal system assesses credibility: how racism, poverty, and trauma impact how a survivor presents and reacts. The legal system’s failure to understand these intersections often results in a denial of justice.
Studies have shown that the domestic violence occurs at the same rate across all races and ethnicities, but that Black women and girls are twice as likely to be killed by a spouse, and four times more likely to be killed by an abusive partner. Why?
Is it because Black survivors are less likely to be believed? A report published by Georgetown Law’s Center on Poverty and Inequality found that “adults view Black girls as less innocent…than their white peers.” Racist and implicit biases impact credibility determinations, as well as the level of sympathy we have seen historically given to Black victims versus white victims. While this impact is more pronounced with respect to Black survivors, we also see a similar impact for other survivors who are people of color. This is not because they are any less in need of protection, but because they face systemic barriers to accessing help.
Based on our work with survivors, we have found that when clients of color report abuse to law enforcement—or get involved with the legal system—they are less likely to be believed, are more likely to risk being charged themselves (or mutually arrested with their abuser). They are more likely to feel unsafe or unwilling to report to police or our courts because communities of color have historically been over policed and over criminalized.
Among immigrant communities (which are largely of color), survivors may be reluctant to get involved with the legal system for fear of triggering ICE involvement which can harm either them or family members with possible deportation simply for seeking help. Immigrant survivors have often faced threats of deportation or immigration enforcement by their abusive partner if they report. Until recently, ICE appeared inside and outside courthouse to detain immigrants appearing in court. This conduct has had a chilling effect on survivors and causes fear they could be placed in custody. NYLAG recently participated in the ICE Out of Courts Coalition, responsible for influencing the court to cease this practice. Still, fear remains.
Immigrants who do not speak English also encounter language barriers. Many clients have reported that police fail to use interpretation services when responding to calls, and most recently during the pandemic, court closure signs and notices telling the public where to call in case of emergency appear only in English.
These structural impediments and undue burdens imposed on people of color victimized by intimate partner violence cause impacted survivors to lose trust in the legal system. That then creates a pattern where courts find people who are closed off, defensive, or less engaged or emotional, as not credible. They are often questioned as to why they didn’t report “sooner” or at all to the police, despite the reality that they may feel unsafe doing so because of their lived experience of racism and valid fear of the consequences of calling police on a Black individual, or on someone without status. Courts do not often recognize these nuances and too commonly carry bias towards survivors of color as a result.
Credibility can also be examined in the context of poverty which disproportionately affects community of color due to historical systemic barriers that have made it harder for these communities to accumulate wealth.
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. If they cannot afford rent or essentials, survivors will stay despite the abuse. Courts continue to wonder why victims of domestic violence stay in abusive relationships because they may not understand how fear of poverty, homelessness, and/or food insecurity may inform the choices that a survivor makes. There are many reasons people stay or return to abusive situations, including the reality of economic dependence, the cost of living in NYC, and lack of affordable housing, shelter, childcare and benefits that cover basic needs.
Even worse, survivors are harshly judged when they leave an abusive partner without sufficient resources to avoid slipping into poverty. The custodial parent may not be able to provide a child with his or her own bed or the home may not be fully stocked with groceries. In some cases, the court may award custody to the abuser because they may be more financially sound. Courts do not often consider that an abuser typically restricts access to money or prevents the abused partner from being employed over extended periods of time as a tactic to control and isolate the victim.
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 they may even experience seemingly disproportionate responses such as uncontrollable laughter. These are completely common reactions to recalling trauma but may not be recognized as the manifestations of trauma.
Without trauma-informed training, even legal experts expect “credible” witnesses to tell linear stories, but many survivors don’t remember traumatic events in that way because traumatic memories are stored differently in the brain. If a regular memory plays like a movie, traumatic memories, like domestic violence, play like a highlight reel of thoughts, sounds, feelings, as told through sensory details like sounds and smells. Because of how memories are stored while experiencing trauma, recalling dates and times is not as easy; further, when recalling the traumatic experience, the person often relives the traumatic experience (triggers), making it even more difficult to obtain such details. Yet, our legal system is built around and expects clear, linear narratives which contain “essential details” such as the date and time an event occurred.
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. 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.
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 empathy and knowledge 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 and need to take trauma and trauma reactions into account when assessing credibility. When you understand natural trauma reactions, it is believable when someone tells a story with some gaps, when they appear to have become frozen on the stand, or react in a way that may appear odd but could be fueled by the adrenaline running through their bodies as they relive the horrifying experience.
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.
“Assessing credibility must take into account that there is no such thing as a ‘typical’ survivor of domestic violence. 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
#RethinkCredibility—We need your help.
At NYLAG, we advocate for our clients, explaining trauma reactions, calling out racism when we see it, and explaining how poverty affects our clients’ choices.
This is where you come in: 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.
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Make #RethinkCredibility a movement to rethink how the legal system assesses the credibility of a domestic violence survivor’s story.