The Impact of Trauma on the Legal Process

New laws have been introduced in New South Wales to help juries understand the impact of trauma on victims of sexual assault.

What is trauma?

An event is traumatic when it causes a person to be incapable of coping with a situation. A traumatic experience may occur when the person is subjected to a threat to life, bodily integrity or sanity. An example of a traumatic experience is sexual abuse.

The impact of trauma in the courtroom

Trauma affects people in different ways. Trauma can prevent a person from thinking rationally and can impact on a person’s ability to recollect details of an event. It is a natural human response to forget traumatic experiences, especially if an individual has suffered physical abuse.

The stress of the court process can re-traumatise or even intensify the traumatic experience for the victim. For example, the complainant in a sexual assault trial might face intense stress when forced to recollect details of their traumatic experiences in the courtroom. This can then result in the complainant giving inconsistent evidence or failing to remember specific details that they are asked for.

It can often be the case that a complainant giving such evidence may be accused of lying. This can then impact on their credibility, and ultimately, the verdict of the jury.

Changes to the law’s approach to trauma

Following the report by the Royal Commission into Institutional Responses to Child Sexual Abuse, the New South Wales parliament has introduced new laws to strengthen the protection for victims of sexual abuse.

The new section 293A of the Criminal Procedure Act 1986 allows a trial judge in proceedings for a prescribed sexual offence to provide educative information to the jury about the impact of trauma on the victim’s account.

The judge can explain that trauma impacts victims in different ways and can impact a victim’s memory. The judge can also explain that it is common for victims of sexual assault to forget the details of the traumatic experiences that they have experienced. Another direction that can be given is that it is common for there to be differences in the recounts of sexual assaults. This could, therefore, result in inconsistencies between pre-court statements and what victims say at trial.

It is important to note that the new judicial directions are entirely discretionary. It is up to the decision of the presiding judge to determine when such directions are needed. Nonetheless, these amendments are important because they help juries understand why victims sometimes fail to recall certain aspects of the traumas they have experienced.

The importance of a trauma-informed legal practice

Whilst these provisions are targeted at criminal trials, it is equally important to note that trauma can apply to plaintiffs in civil cases as well. O’Brien Criminal and Civil Solicitors are experienced in interacting with clients who have faced traumatic experiences. Our firm has represented clients who appeared before the Royal Commission into Institutional Responses to Child Sex Abuse and Royal Commission into the Protection and Detention of Children in the Northern Territory.

Further, in our civil practice we have advised clients who have been the victims of police abuse, the subject of sexual abuse by institutions and victims of sexual harassment in the workplace among others.

We recognise the impact that trauma can have on a client’s memory and that they may have blocked out the details of their abuse. For this reason, we employ a trauma-informed practice where we can assist a client in a manner that is sensitive to their individual needs. This includes providing a safe and confidential environment for clients who may have difficulty talking about traumatic experience and minimising the potential for re-traumatisation.

For example, we represented a client who sued a church for historical sexual abuse. Our firm recognised that this was a traumatic experience for the client and forewarned him of the potential course of events that could occur during the legal process. This helped the client manage his trauma.

Contact O’Brien Criminal and Civil Solicitors

If you are thinking of taking civil action against the police or an institution for abuse, speak to one of our solicitors who can advise you in a trauma-informed manner. Call us on (02) 9261 4281 to book a free initial consultation.

Trauma-Informed Lawyers can help victims of sexual assault such as this woman.

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O’Brien Criminal & Civil Solicitors
p: 02 9261 4281
a: Level 4, 219-223 Castlereagh St,
Sydney NSW 2000

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