Trauma Informed Practice Kay Mccarthy

Trauma Informed Practice Kay McCarthy

People come to attorneys because something in their lives has changed, generally for the

worse. Realizing that many clients have some level of trauma, and understanding how to deal

with that, makes you a more effective attorney. Because we deal with the legal system and enjoy some level of comfort with it, we sometimes have difficulty realizing the trauma it creates for our clients. This compounds the trauma they already have when they come to us. Whether the

clients are families, juveniles, defendants in criminal matters or people involved in business

controversies, this may be their only exposure to our justice system. We can provide a higher

level of service by learning these practices.

In this seminar you will: • Recognize the impact trauma (physical, emotional, psychological, violent) has on your

client and others involved

• Understand how the trauma impacts and complicates your client’s interaction with you

and the legal system, both now and in the future

• Learn how to collaborate with other professionals to improve how your client deals with

the current legal situation, and to set them up for success when litigation is complete

• Identify ways you can reduce and address the trauma from client intake to appearance in

court.

• Care for you and your staff who must deal with client trauma daily

I. What is Trauma Informed Practice

A. History of Defining Trauma

“Historically, symptoms of traumatic stress have been recorded in both military and civilian populations (Lasiuk & Hegadoren, 2006). Early accounts described the effect of battle conditions on soldiers; “soldier’s heart” and “nostalgia” were the terms for traumatic stress reactions used during the American Civil War. As warfare techniques and strategies changed, so did the depiction of soldiers’ traumatic stress reactions. The advent of heavy explosives in World War I led to the attribution of symptoms to “shell shock,” giving a more physiological description of the effects from explosions (Benedek & Ursano, 2009). On the civilian side, the industrial revolution gave rise to larger and more dramatic catastrophes, including industrial and railway accidents. These, as well as other disasters, are noted in occupational health histories, newspapers, and contemporary literature. Even with a more physical explanation of traumatic stress (i.e., shell shock), a prevailing attitude remained that the traumatic stress response was due to a character flaw. For instance, a soldier’s pain at that time was often seen as a symptom of homesickness. In spite of the efforts of Charcot, Janet, and Freud, who described the psychogenic origin of symptoms as a response to psychological trauma (Lasiuk & Hegadoren, 2006), World War II military recruits were screened in attempt to identify those “who were afflicted with moral weakness,” which would prevent them from entering military service. At the same time, there were new treatment innovations for war-related trauma during World War II. One approach treated soldiers in the field for what was then called “battle fatigue” by allowing some time for rest before returning to battle. During the Korean and Vietnam wars, approaches began to focus more on the use of talk therapy. It was not until the post-Vietnam era that interest in developing treatment alternatives started to take hold. During this time, the U.S. Department of Veterans Affairs (then called the Veterans Administration) developed group therapy for posttraumatic stress disorder (PTSD). Beyond being cost-effective, the technique was well suited to the symptoms of the veterans and fostered socialization and reintegration (Greene et al., 2004).

The publication of the American Psychiatric Association’s (APA’s) Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM-III), in 1980 marked the introduction of PTSD as a diagnosis, inspired by symptoms presented by veterans of the Vietnam War (Benedek & Ursano, 2009). The diagnosis in this iteration required the identification of a specific stressor—a catastrophic stressor that was outside the range of usual human experience (APA, 1980)—and classified PTSD as an anxiety disorder (Lasiuk & Hegadoren, 2006). Beginning with this definition, the body of research grew, and the scope of application began to broaden, but not without considerable debate on what constituted a trauma.” Treatment Improvement Protocol (TIP) Series, No. 57. Center for Substance Abuse Treatment (US).Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 2014.

B. What is the current paradigm for handling clients with trauma?

1. Move from “What is wrong with you?” to “What Happened to You”

2. Empower the survivors

3. Provide resources

C. What is Trauma? (SAMHSA Substance Abuse and Mental Health Services ) defines

trauma as “an event, series of events, or set of circumstances that is experienced by an

individual as physically or emotionally harmful or life threatening and that have

lasting adverse effects on the individual’s functioning and mental, physical, social,

emotional or spiritual well-being.” (See attachment 1: SAMHSA’s Concept of Trauma

and Guidance for a Trauma-Informed Approach June 2014)

D. Three E’s of Trauma:

1. Event(s): actual or extreme threat of physical or psychological harm, or severe

life-threatening neglect for a child that imperils healthy development.

2. Experience: may be traumatic for one person but not another. How an individual

labels, assigns meaning to and is disrupted physically and psychologically by an

event will contribute to how it is experienced.

3. Effects (Adverse): may occur immediately or have delayed onset. Duration varies.

II. Why is Trauma Informed Practice Important for Attorneys (See attachment 2: The

Pedagogy of Trauma-Informed Lawyering, 22 Clinical L. Rev. 359 (2016) Temple

University Legal Studies Research Paper No. 2016-29)

A. We are providing a service

B. Impact on Outcomes (Case and Life)

III. What can attorneys do?

A. Recommendations from the National Center on Domestic Violence, Trauma &

Mental Health (See attachment 3: Trauma-Informed Legal Advocacy: Practice

Scenario Series March 2015)

1. Understand how overwhelming nature of trauma

2. Minimize re-traumatization

3. Prepare for the initial and follow up interviews with your client. The National

Immigrant Women’s Advocacy Project created a great list of questions. Not

all will apply, but it’s a great starting point. (See attachment 4: National

Immigrant Women’s Advocacy Project (NIWAP) Structured Interview

Questions American University, Washington College of Law Updated April

18, 2018)

B. Minimize their triggers in advance

1. Physical space

2. Use open body language

3. Explain things in advance

4. Offer breaks

5. Support self-soothing behaviors

6. Be thoughtful about note taking

7. Tour of court

8. Enlist supporters

9. Ask about emotional needs

10. Safety planning

11. Involve them in the process

C. Challenges

1. Interactions that are humiliating, harsh, impersonal, disrespectful, critical,

demanding, and judgmental.

a. SHOW RESPECT. Interactions that express respect, kindness, patience,

reassurance, and acceptance.

2. Difficulty Listening and Following Their Story a. Use active listening

3. Thinking and Asking “What’s Wrong With You?”

a. Think and ask “What has happened to you?” Ask for their story

4. Reacting to their aggression or hostility

a. Remain Calm. Use a quiet tone of voice and a slow pace of speaking that

encourages stability and physiological regulation.

5. Know your own personal biases

a. Be vigilant in your awareness of your own personal biases as it can alter your

perception of the impact of trauma.

D. Dealing with children (Works for anyone representing kids, whether GAL, Juvenile

or CINC and recognizing issues in divorce

1. Adverse Childhood Experiences (ACE)

a. Original study by CDC-Kaiser Permanente from 1995 to 1997. The original

ACE Study was conducted at Kaiser Permanente from 1995 to 1997 with

two waves of data collection. Over 17,000 Health Maintenance Organization

members from Southern California receiving physical exams completed

confidential surveys regarding their childhood experiences and current

health status and behaviors. More detailed information about the study can

be found in the links below or in “Relationship of Childhood Abuse and

Household Dysfunction to Many of the Leading Causes of Death in Adults

External,” published in the American Journal of Preventive Medicine in

1998, Volume 14, pages 245–258.

b. What are ACEs- Adverse Childhood Experiences (See attachment 5: The

Truth About ACES, Centers for Disease Control)

(1) Abuse-physical, emotional or social

(2) Neglect-physical or emotional

(3) Household dysfunction-mental illness, violence, incarceration, substance

abuse or divorce

c. Frequency of ACEs (See attachment 6: Understanding Child Trauma from

the National Child Traumatic Stress Network)

(1) 2/3 of children reported at least one event by age 16

(2) Each year number of youth requiring hospital treatment for assault

related injuries would fill 9 stadiums

(3) 1 in 6 have suffered cyber bullying

d. Impact of ACEs

(1) Substance Abuse

(2) Behavioral Problems

2. Establish a solid attorney-client relationship (See attachment 7: ABA Child Law

Practice, Establishing a Trauma-Informed Lawyer-Client Relationship, Vo. 33

No. 10, October 2014)

a. Need client trust and engagement

b. Client emotional control

3. Determine if trauma services are needed- (See attachment 8: National Child

Traumatic Stress Network Bench Card for the Trauma-Informed Judge)

a. Trauma Exposure

b. Multiple or Prolonged Exposures

c. Outcomes of Previous Sanctions or Interventions

d. Caregivers Roles

e. Safety Issues for the Child

f. Trauma Triggers in Current Placement

g. Unusual Courtroom Behaviors

4. What information is needed about the child

a. Completeness of Data for Decisions

b. Inter-professional Cooperation

c. Unusual Behaviors in the Community

d. Development

e. Previous Court Contacts

f. Out -of-Home Placement History

g. Behavioral Health History

E. Set up your referral network and update it regularly

1. Therapist for the individual

2. Therapist for the children

3. Co-Parent therapy where appropriate and safe

4. Evaluation for substance abuse

IV. Care for yourself and staff

A. Burnout

B. Frustration and Anger with the clients

C. Secondary (Vicarious) trauma

According to The National Child Traumatic Stress Network, “secondary traumatic stress is the emotional duress that results when an individual hears about the firsthand trauma experiences of another. Its symptoms mimic those of posttraumatic stress disorder (PTSD). Accordingly, individuals affected by secondary stress may find themselves re-experiencing personal trauma or notice an increase in arousal and avoidance reactions related to the indirect trauma exposure. They may also experience changes in memory and perception; alterations in their sense of self-efficacy; a depletion of personal resources; and disruption in their perceptions of safety, trust, and independence. A partial list of symptoms and conditions associated with secondary traumatic stress includes:” Hypervigilance Hopelessness Inability to embrace complexity Inability to listen Fear Avoidance of clients Sleeplessness Anger Chronic exhaustion Physical ailments Minimizing Guilt Cynicism D. What can you do? 1. Staff

2. Attorneys

V. Resources

A. Domestic Violence (See attachment 9: Representing Domestic Violence Survivors

Who Are Experiencing Trauma and Other Mental Health Challenges: A Handbook

for Attorneys, National Center for Domestic Violence, Trauma & Mental Health,

December 2011)

B. Memory Issues in Trauma (See attachment 10 Trauma & Memory: A Curated

Selection of Resources for Attorneys and Legal Advocates, National Center for

Domestic Violence, Trauma & Mental Health, September 2016)

Attachment 1 SAMHSA’s Concept of Trauma and Guidance for a Trauma-Informed Approach

Prepared by SAMHSA’s Trauma and Justice Strategic Initiative July 2014

U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration Office of Policy, Planning and Innovation Acknowledgements This publication was developed under the leadership of SAMHSA’s Trauma and Justice Strategic Initiative Workgroup: Larke N. Huang (lead), Rebecca Flatow, Tenly Biggs, Sara Afayee, Kelley Smith, Thomas Clark, and Mary Blake. Support was provided by SAMHSA’s National Center for Trauma-Informed Care, contract number 270-13-0409. Mary Blake and Tenly Biggs serve as the CORs.

Disclaimer The views, opinions, and content of this publication are those of the authors and do not necessarily reflect the views, opinions, or policies of SAMHSA or HHS.

Public Domain Notice All materials appearing in this volume except those taken directly from copyrighted sources are in the public domain and may be reproduced or copied without permission from SAMHSA or the authors. Citation of the source is appreciated. However, this publication may not be reproduced or distributed for a fee without the specific, written authorization of the Office of Communications, SAMHSA, Department of Health and Human Services.

Electronic Access and Copies of Publication The publication may be downloaded or ordered from SAMHSA’s Publications Ordering Web page at http://store.samhsa.gov. Or, please call SAMHSA at 1-877-SAMHSA-7 (1-877-726- 4727) (English and Español).

Recommended Citation Substance Abuse and Mental Health Services Administration. SAMHSA’s Concept of Trauma and Guidance for a Trauma-Informed Approach. HHS Publication No. (SMA) 14-4884. Rockville, MD: Substance Abuse and Mental Health Services Administration, 2014.

Originating Office Office of Policy, Planning and Innovation, Substance Abuse and Mental Health Services Administration, 1 Choke Cherry Road, Rockville, MD 20857. HHS Publication No. (SMA) 14-4884. Printed 2014. Contents

Introduction ...... 2

Purpose and Approach: Developing a Framework for Trauma and a Trauma-Informed Approach ...... 3

Background: Trauma — Where We Are and How We Got Here ...... 5

SAMHSA’s Concept of Trauma ...... 7

SAMHSA’s Trauma-Informed Approach: Key Assumptions and Principles ...... 9

Guidance for Implementing a Trauma-Informed Approach ...... 12

Next Steps: Trauma in the Context of Community ...... 17

Conclusion ...... 17

Endnotes ...... 18

page 1 Introduction

Trauma is a widespread, harmful and costly public supports and intervention, people can overcome health problem. It occurs as a result of violence, traumatic experiences.6,7,8,9 However, most people go abuse, neglect, loss, disaster, war and other without these services and supports. Unaddressed emotionally harmful experiences. Trauma has no trauma significantly increases the risk of mental boundaries with regard to age, gender, socioeconomic and substance use disorders and chronic physical status, race, ethnicity, geography or sexual orientation. diseases.1,10,11 It is an almost universal experience of people with mental and substance use disorders. The need to address trauma is increasingly viewed as an With appropriate supports and important component of effective behavioral health service delivery. Additionally, it has become evident intervention, people can overcome that addressing trauma requires a multi-pronged, traumatic experiences. multi-agency public health approach inclusive of public education and awareness, prevention and early identification, and effective trauma-specific assessment and treatment. In order to maximize the impact of these efforts, they need to be provided Individuals with experiences of trauma are found in an organizational or community context that is in multiple service sectors, not just in behavioral trauma-informed, that is, based on the knowledge health. Studies of people in the juvenile and criminal and understanding of trauma and its far-reaching justice system reveal high rates of mental and implications. substance use disorders and personal histories of trauma.12,13 Children and families in the child welfare system similarly experience high rates of trauma and associated behavioral health problems.5,14 Young The need to address trauma is people bring their experiences of trauma into the increasingly viewed as an important school systems, often interfering with their school component of effective behavioral success. And many patients in primary care similarly health service delivery. have significant trauma histories which has an impact on their health and their responsiveness to health interventions.15,16,17

In addition, the public institutions and service systems The effects of traumatic events place a heavy that are intended to provide services and supports burden on individuals, families and communities and to individuals are often themselves trauma-inducing. create challenges for public institutions and service The use of coercive practices, such as seclusion and systems. Although many people who experience restraints, in the behavioral health system; the abrupt a traumatic event will go on with their lives without removal of a child from an abusing family in the child lasting negative effects, others will have more welfare system; the use of invasive procedures in the difficulty and experience traumatic stress reactions. medical system; the harsh disciplinary practices in Emerging research has documented the relationships educational/school systems; or intimidating practices among exposure to traumatic events, impaired in the criminal justice system can be re-traumatizing neurodevelopmental and immune systems responses for individuals who already enter these systems and subsequent health risk behaviors resulting in with significant histories of trauma. These program 1,2,3,4,5 chronic physical or behavioral health disorders. or system practices and policies often interfere with Research has also indicated that with appropriate achieving the desired outcomes in these systems.

page 2 Thus, the pervasive and harmful impact of traumatic experienced by these individuals and how to mitigate events on individuals, families and communities and the re-traumatizing effect of many of our public the unintended but similarly widespread re-traumatizing institutions and service settings was not an integral of individuals within our public institutions and part of the work of these systems. Now, however, service systems, makes it necessary to rethink there is an increasing focus on the impact of trauma doing “business as usual.” In public institutions and and how service systems may help to resolve or service systems, there is increasing recognition that exacerbate trauma-related issues. These systems are many of the individuals have extensive histories of beginning to revisit how they conduct their “business” trauma that, left unaddressed, can get in the way of under the framework of a trauma-informed approach. achieving good health and well-being. For example, a child who suffers from maltreatment or neglect in the home may not be able to concentrate on school There is an increasing focus work and be successful in school; a women victimized by domestic violence may have trouble performing in on the impact of trauma the work setting; a jail inmate repeatedly exposed to and how service systems may violence on the street may have difficulty refraining help to resolve or exacerbate from retaliatory violence and re-offending; a sexually abused homeless youth may engage in self-injury and trauma-related issues. These high risk behaviors to cope with the effects of sexual systems are beginning to abuse; and, a veteran may use substances to mask revisit how they conduct their the traumatic memories of combat. The experiences business under the framework of of these individuals are compelling and, unfortunately, all too common. Yet, until recently, gaining a better a trauma-informed approach. understanding of how to address the trauma

Purpose and Approach: Developing a Framework for Trauma and a Trauma-Informed Approach

PURPOSE The purpose of this paper is to develop a working framework be relevant to its federal partners and concept of trauma and a trauma-informed approach their state and local system counterparts and to and to develop a shared understanding of these practitioners, researchers, and trauma survivors, concepts that would be acceptable and appropriate families and communities. The desired goal is to build across an array of service systems and stakeholder a framework that helps systems “talk” to each other, groups. SAMHSA puts forth a framework for the to understand better the connections between trauma behavioral health specialty sectors, that can be and behavioral health issues, and to guide systems to adapted to other sectors such as child welfare, become trauma-informed. education, criminal and juvenile justice, primary health care, the military and other settings that have APPROACH the potential to ease or exacerbate an individual’s SAMHSA approached this task by integrating three capacity to cope with traumatic experiences. In significant threads of work: trauma focused research fact, many people with behavioral health problems work; practice-generated knowledge about trauma receive treatment and services in these non-specialty interventions; and the lessons articulated by survivors behavioral health systems. SAMHSA intends this

page 3page 3 of traumatic experiences who have had involvement in multiple service sectors. It was expected that The key questions addressed this blending of the research, practice and survivor knowledge would generate a framework for improving in this paper are: the capacity of our service systems and public • What do we mean by trauma? institutions to better address the trauma-related issues of their constituents. • What do we mean by a trauma-informed approach? To begin this work, SAMHSA conducted an environmental scan of trauma definitions and models • What are the key principles of a trauma- of trauma informed care. SAMHSA convened a informed approach? group of national experts who had done extensive • What is the suggested guidance for work in this area. This included trauma survivors implementing a trauma-informed who had been recipients of care in multiple service approach? system; practitioners from an array of fields, who had experience in trauma treatment; researchers whose • How do we understand trauma in the work focused on trauma and the development of context of community? trauma-specific interventions; and policymakers in the field of behavioral health.

From this meeting, SAMHSA developed a working SAMHSA’s approach to this task has been an attempt document summarizing the discussions among these to integrate knowledge developed through research experts. The document was then vetted among and clinical practice with the voices of trauma federal agencies that conduct work in the field of survivors. This also included experts funded through trauma. Simultaneously, it was placed on a SAMHSA SAMHSA’s trauma-focused grants and initiatives, website for public comment. Federal agency experts such as SAMHSA’s National Child Traumatic Stress provided rich comments and suggestions; the public Initiative, SAMHSA’s National Center for Trauma comment site drew just over 2,000 respondents Informed Care, and data and lessons learned from and 20,000 comments or endorsements of others’ other grant programs that did not have a primary focus comments. SAMHSA reviewed all of these comments, on trauma but included significant attention to trauma, made revisions to the document and developed the such as SAMHSA’s: Jail Diversion Trauma Recovery framework and guidance presented in this paper. grant program; Children’s Mental Health Initiative; Women, Children and Family Substance Abuse Treatment Program; and Offender Reentry and Adult Treatment Drug Court Programs.

page 4 Background: Trauma — Where We Are and How We Got Here

The concept of traumatic stress emerged in the Simultaneously, an emerging trauma survivors field of mental health at least four decades ago. movement has provided another perspective on the Over the last 20 years, SAMHSA has been a leader understanding of traumatic experiences. Trauma in recognizing the need to address trauma as a survivors, that is, people with lived experience fundamental obligation for public mental health and of trauma, have powerfully and systematically substance abuse service delivery and has supported documented their paths to recovery.26 Traumatic the development and promulgation of trauma-informed experiences complicate a child’s or an adult’s systems of care. In 1994, SAMHSA convened the capacity to make sense of their lives and to create Dare to Vision Conference, an event designed to meaningful consistent relationships in their families bring trauma to the foreground and the first national and communities. conference in which women trauma survivors talked about their experiences and ways in which standard practices in hospitals re-traumatized and often, Trauma survivors have powerfully triggered memories of previous abuse. In 1998, SAMHSA funded the Women, Co-Occurring Disorders and systematically documented and Violence Study to generate knowledge on the their paths to recovery. development and evaluation of integrated services approaches for women with co-occurring mental and substance use disorders who also had histories of physical and or sexual abuse. In 2001, SAMHSA The convergence of the trauma survivor’s perspective funded the National Child Traumatic Stress Initiative to with research and clinical work has underscored the increase understanding of child trauma and develop central role of traumatic experiences in the lives of effective interventions for children exposed to different people with mental and substance use conditions. types of traumatic events. The connection between trauma and these conditions offers a potential explanatory model for what has The American Psychiatric Association (APA) played an happened to individuals, both children and adults, important role in defining trauma. Diagnostic criteria for who come to the attention of the behavioral health and traumatic stress disorders have been debated through other service systems.25,27 several iterations of the Diagnostic and Statistical Manual of Mental Disorders (DSM) with a new People with traumatic experiences, however, do not category of Trauma- and Stressor-Related Disorders, show up only in behavioral health systems. Responses across the life-span, included in the recently released to these experiences often manifest in behaviors or DSM-V (APA, 2013). Measures and inventories of conditions that result in involvement with the child trauma exposure, with both clinical and research welfare and the criminal and juvenile justice system or applications, have proliferated since the 1970’s.18,19,20,21 in difficulties in the education, employment or primary National trauma research and practice centers have care system. Recently, there has also been a focus conducted significant work in the past few decades, on individuals in the military and increasing rates of further refining the concept of trauma, and developing posttraumatic stress disorders.28,29,30,31 effective trauma assessments and treatments.22,23,24,25 With the advances in neuroscience, a biopsychosocial approach to traumatic experiences has begun to delineate the mechanisms in which neurobiology, psychological processes, and social attachment interact and contribute to mental and substance use disorders across the life-span.3,25

page 5 With the growing understanding of the pervasiveness trauma-informed care focus in their children’s systems of traumatic experience and responses, a growing of care. New York is introducing a trauma-informed number of clinical interventions for trauma responses initiative in the juvenile justice system. Missouri is have been developed. Federal research agencies, exploring a trauma-informed approach for their adult academic institutions and practice-research mental health system. In Massachusetts, the Child partnerships have generated empirically-supported Trauma Project is focused on taking trauma-informed interventions. In SAMHSA’s National Registry of care statewide in child welfare practice. In Connecticut Evidence-based Programs and Practices (NREPP) the Child Health and Development Institute with the alone there are over 15 interventions focusing on the state Department of Children and Families is building treatment or screening for trauma. a trauma-informed system of care throughout the state through policy and workforce development. These interventions have been integrated into the SAMHSA has supported the further development of behavioral health treatment care delivery system; trauma-informed approaches through its Mental Health however, from the voice of trauma survivors, it has Transformation Grant program directed to State and become clear that these clinical interventions are not local governments. enough. Building on lessons learned from SAMHSA’s Women, Co-Occurring Disorders and Violence Study; Increasing examples of local level efforts are being SAMHSA’s National Child Traumatic Stress Network; documented. For example, the City of Tarpon Springs and SAMHSA’s National Center for Trauma-Informed in Florida has taken significant steps in becoming Care and Alternatives to Seclusion and Restraints, a trauma-informed community. The city made it its among other developments in the field, it became mission to promote a widespread awareness of the clear that the organizational climate and conditions costly effects of personal adversity upon the wellbeing in which services are provided played a significant of the community. The Family Policy Council in role in maximizing the outcomes of interventions Washington State convened groups to focus on the and contributing to the healing and recovery of the impact of adverse childhood experiences on the health people being served. SAMHSA’s National Center for and well-being of its local communities and tribal Trauma-Informed Care has continued to advance this communities. Philadelphia held a summit to further effort, starting first in the behavioral health sector, its understanding of the impact of trauma and but increasingly responding to technical assistance violence on the psychological and physical health requests for organizational change in the criminal of its communities. justice, education, and primary care sectors.

FEDERAL, STATE AND LOCAL LEVEL SAMHSA continues its support TRAUMA-FOCUSED ACTIVITIES of grant programs that The increased understanding of the pervasiveness of trauma and its connections to physical and behavioral specifically address trauma. health and well-being, have propelled a growing number of organizations and service systems to explore ways to make their services more responsive At the federal level, SAMHSA continues its support of to people who have experienced trauma. This has grant programs that specifically address trauma and been happening in state and local systems and technical assistance centers that focus on prevention, federal agencies. treatment and recovery from trauma. States are elevating a focus on trauma. For example, Oregon Health Authority is looking at different types of trauma across the age span and different population groups. Maine’s “Thrive Initiative” incorporates a

page 6 Other federal agencies have increased their focus primary care on how to address trauma issues in on trauma. The Administration on Children Youth health care for women. The Department of Labor is and Families (ACYF) has focused on the complex examining trauma and the workplace through a federal trauma of children in the child welfare system and interagency workgroup. The Department of Defense is how screening and assessing for severity of trauma honing in on prevention of sexual violence and trauma and linkage with trauma treatments can contribute in the military. to improved well-being for these youth. In a joint effort among ACYF, SAMHSA and the Centers for As multiple federal agencies representing varied Medicare and Medicaid Services (CMS), the three sectors have recognized the impact of traumatic agencies developed and issued through the CMS experiences on the children, adults, and families State Directors’ mechanism, a letter to all State Child they serve, they have requested collaboration with Welfare Administrators, Mental Health Commissioners, SAMHSA in addressing these issues. The widespread Single State Agency Directors for Substance Abuse recognition of the impact of trauma and the burgeoning and State Medicaid Directors discussing trauma, interest in developing capacity to respond through its impact on children, screening, assessment and trauma-informed approaches compelled SAMHSA treatment interventions and strategies for paying to revisit its conceptual framework and approach for such care. The Office of Juvenile Justice and to trauma, as well as its applicability not only to Delinquency Prevention has specific recommendations behavioral health but also to other related fields. to address trauma in their Children Exposed to Violence Initiative. The Office of Women’s Health has developed a curriculum to train providers in

SAMHSA’s Concept of Trauma

Decades of work in the field of trauma have generated multiple definitions of trauma. Combing through this Individual trauma results from an work, SAMHSA developed an inventory of trauma definitions and recognized that there were subtle event, series of events, or set of nuances and differences in these definitions. circumstances that is experienced

Desiring a concept that could be shared among its by an individual as physically or constituencies — practitioners, researchers, and emotionally harmful or life threatening trauma survivors, SAMHSA turned to its expert panel and that has lasting adverse effects to help craft a concept that would be relevant to public on the individual’s functioning and health agencies and service systems. SAMHSA aims to provide a viable framework that can be used to mental, physical, social, emotional, support people receiving services, communities, and or spiritual well-being. stakeholders in the work they do. A review of the existing definitions and discussions of the expert panel generated the following concept:

page 7 THE THREE “E’S” OF TRAUMA: EVENT(S), shattering a person’s trust and leaving them feeling EXPERIENCE OF EVENT(S), AND EFFECT alone. Often, abuse of children and domestic violence are accompanied by threats that lead to silencing and Events and circumstances may include the actual or extreme threat of physical or psychological harm fear of reaching out for help. (i.e. natural disasters, violence, etc.) or severe, How the event is experienced may be linked to a life-threatening neglect for a child that imperils healthy range of factors including the individual’s cultural development. These events and circumstances may beliefs (e.g., the subjugation of women and the occur as a single occurrence or repeatedly over experience of domestic violence), availability of time. This element of SAMHSA’s concept of trauma social supports (e.g., whether isolated or embedded is represented in the fifth version of the Diagnostic in a supportive family or community structure), or to and Statistical Manual of Mental Disorders (DSM-5), the developmental stage of the individual (i.e., an which requires all conditions classified as “trauma and individual may understand and experience events stressor-related disorders” to include exposure to a differently at age five, fifteen, or fifty).1 traumatic or stressful event as a diagnostic criterion. The long-lasting adverse effects of the event are a The individual’s experience of these events or critical component of trauma. These adverse effects circumstances helps to determine whether it may occur immediately or may have a delayed onset. is a traumatic event. A particular event may be The duration of the effects can be short to long term. experienced as traumatic for one individual and not In some situations, the individual may not recognize for another (e.g., a child removed from an abusive the connection between the traumatic events and home experiences this differently than their sibling; the effects. Examples of adverse effects include an one refugee may experience fleeing one’s country individual’s inability to cope with the normal stresses differently from another refugee; one military and strains of daily living; to trust and benefit from veteran may experience deployment to a war zone relationships; to manage cognitive processes, such as traumatic while another veteran is not similarly as memory, attention, thinking; to regulate behavior; affected). How the individual labels, assigns meaning or to control the expression of emotions. In addition to, and is disrupted physically and psychologically to these more visible effects, there may be an altering by an event will contribute to whether or not it is of one’s neurobiological make-up and ongoing experienced as traumatic. Traumatic events by their health and well-being. Advances in neuroscience very nature set up a power differential where one and an increased understanding of the interaction entity (whether an individual, an event, or a force of of neurobiological and environmental factors have nature) has power over another. They elicit a profound documented the effects of such threatening events.1,3 question of “why me?” The individual’s experience of Traumatic effects, which may range from hyper- these events or circumstances is shaped in the context vigilance or a constant state of arousal, to numbing of this powerlessness and questioning. Feelings of or avoidance, can eventually wear a person down, humiliation, guilt, shame, betrayal, or silencing often physically, mentally, and emotionally. Survivors of shape the experience of the event. When a person trauma have also highlighted the impact of these experiences physical or sexual abuse, it is often events on spiritual beliefs and the capacity to make accompanied by a sense of humiliation, which can meaning of these experiences. lead the person to feel as though they are bad or dirty, leading to a sense of self blame, shame and guilt. In cases of war or natural disasters, those who survived the traumatic event may blame themselves for surviving when others did not. Abuse by a trusted caregiver frequently gives rise to feelings of betrayal,

page 8 SAMHSA’s Trauma-Informed Approach: Key Assumptions and Principles

Trauma researchers, practitioners and survivors have recognized that the understanding of trauma Referred to variably as “trauma- and trauma-specific interventions is not sufficient to optimize outcomes for trauma survivors nor to informed care” or “trauma-informed influence how service systems conduct their business. approach” this framework is regarded

The context in which trauma is addressed or as essential to the context of care. treatments deployed contributes to the outcomes for the trauma survivors, the people receiving services, and the individuals staffing the systems. Referred THE FOUR “R’S: KEY ASSUMPTIONS IN A to variably as “trauma-informed care” or “trauma- TRAUMA-INFORMED APPROACH informed approach” this framework is regarded as In a trauma-informed approach, all people at all levels essential to the context of care.22,32,33 SAMHSA’s of the organization or system have a basic realization concept of a trauma-informed approach is grounded in about trauma and understand how trauma can affect a set of four assumptions and six key principles. families, groups, organizations, and communities as well as individuals. People’s experience and behavior are understood in the context of coping strategies A program, organization, or system designed to survive adversity and overwhelming circumstances, whether these occurred in the past that is trauma-informed realizes (i.e., a client dealing with prior child abuse), whether the widespread impact of trauma they are currently manifesting (i.e., a staff member and understands potential paths living with domestic violence in the home), or whether for recovery; recognizes the signs they are related to the emotional distress that results in hearing about the firsthand experiences of another and symptoms of trauma in clients, (i.e., secondary traumatic stress experienced by a families, staff, and others involved direct care professional).There is an understanding with the system; and responds by that trauma plays a role in mental and substance use disorders and should be systematically addressed in fully integrating knowledge about prevention, treatment, and recovery settings. Similarly, trauma into policies, procedures, there is a realization that trauma is not confined to and practices, and seeks to actively the behavioral health specialty service sector, but is resist re-traumatization. integral to other systems (e.g., child welfare, criminal justice, primary health care, peer–run and community organizations) and is often a barrier to effective outcomes in those systems as well. A trauma informed approach is distinct from trauma- specific services or trauma systems. A trauma People in the organization or system are also able informed approach is inclusive of trauma-specific to recognize the signs of trauma. These signs may interventions, whether assessment, treatment or be gender, age, or setting-specific and may be recovery supports, yet it also incorporates key trauma manifest by individuals seeking or providing services principles into the organizational culture. in these settings. Trauma screening and assessment assist in the recognition of trauma, as do workforce development, employee assistance, and supervision practices.

page 9 The program, organization, or system responds trigger painful memories and re-traumatize clients by applying the principles of a trauma-informed with trauma histories. For example, they recognize approach to all areas of functioning. The program, that using restraints on a person who has been organization, or system integrates an understanding sexually abused or placing a child who has been that the experience of traumatic events impacts all neglected and abandoned in a seclusion room may people involved, whether directly or indirectly. Staff in be re-traumatizing and interfere with healing and every part of the organization, from the person who recovery. greets clients at the door to the executives and the governance board, have changed their language, SIX KEY PRINCIPLES OF A TRAUMA- behaviors and policies to take into consideration the INFORMED APPROACH experiences of trauma among children and adult users A trauma-informed approach reflects adherence to six of the services and among staff providing the services. key principles rather than a prescribed set of practices This is accomplished through staff training, a budget or procedures. These principles may be generalizable that supports this ongoing training, and leadership across multiple types of settings, although terminology that realizes the role of trauma in the lives of their and application may be setting- or sector-specific. staff and the people they serve. The organization has practitioners trained in evidence-based trauma practices. Policies of the organization, such as mission SIX KEY PRINCIPLES OF A statements, staff handbooks and manuals promote a culture based on beliefs about resilience, recovery, TRAUMA-INFORMED APPROACH and healing from trauma. For instance, the agency’s 1. Safety mission may include an intentional statement on the organization’s commitment to promote trauma 2. Trustworthiness and Transparency recovery; agency policies demonstrate a commitment to incorporating perspectives of people served 3. Peer Support through the establishment of client advisory boards 4. Collaboration and Mutuality or inclusion of people who have received services on the agency’s board of directors; or agency training 5. Empowerment, Voice and Choice includes resources for mentoring supervisors on helping staff address secondary traumatic stress. The 6. Cultural, Historical, and organization is committed to providing a physically and Gender Issues psychologically safe environment. Leadership ensures that staff work in an environment that promotes trust, fairness and transparency. The program’s, organization’s, or system’s response involves a From SAMHSA’s perspective, it is critical to universal precautions approach in which one expects promote the linkage to recovery and resilience for the presence of trauma in lives of individuals being those individuals and families impacted by trauma. served, ensuring not to replicate it. Consistent with SAMHSA’s definition of recovery, A trauma-informed approach seeks to resist services and supports that are trauma-informed build re-traumatization of clients as well as staff. on the best evidence available and consumer and Organizations often inadvertently create stressful or family engagement, empowerment, and collaboration. toxic environments that interfere with the recovery of clients, the well-being of staff and the fulfillment of the organizational mission.27 Staff who work within a trauma-informed environment are taught to recognize how organizational practices may

page 10 The six key principles fundamental to a trauma-informed approach include:24,36

1. Safety: Throughout the organization, staff and the 5. Empowerment, Voice and Choice: Throughout people they serve, whether children or adults, feel the organization and among the clients served, physically and psychologically safe; the physical individuals’ strengths and experiences are setting is safe and interpersonal interactions recognized and built upon. The organization promote a sense of safety. Understanding safety as fosters a belief in the primacy of the people served, defined by those served is a high priority. in resilience, and in the ability of individuals, organizations, and communities to heal and promote recovery from trauma. The organization 2. Trustworthiness and Transparency: understands that the experience of trauma may Organizational operations and decisions are be a unifying aspect in the lives of those who run conducted with transparency with the goal of the organization, who provide the services, and/ building and maintaining trust with clients and family or who come to the organization for assistance members, among staff, and others involved in the and support. As such, operations, workforce organization. development and services are organized to foster empowerment for staff and clients alike. 3. Peer Support: Peer support and mutual self-help Organizations understand the importance of power are key vehicles for establishing safety and hope, differentials and ways in which clients, historically, building trust, enhancing collaboration, and utilizing have been diminished in voice and choice and their stories and lived experience to promote are often recipients of coercive treatment. Clients recovery and healing. The term “Peers” refers to are supported in shared decision-making, choice, individuals with lived experiences of trauma, or in and goal setting to determine the plan of action the case of children this may be family members of they need to heal and move forward. They are children who have experienced traumatic events supported in cultivating self-advocacy skills. Staff and are key caregivers in their recovery. Peers have are facilitators of recovery rather than controllers also been referred to as “trauma survivors.” of recovery.34 Staff are empowered to do their work as well as possible by adequate organizational support. This is a parallel process as staff need to 4. Collaboration and Mutuality: Importance is feel safe, as much as people receiving services. placed on partnering and the leveling of power differences between staff and clients and among organizational staff from clerical and housekeeping 6. Cultural, Historical, and Gender Issues: personnel, to professional staff to administrators, The organization actively moves past cultural demonstrating that healing happens in relationships stereotypes and biases (e.g. based on race, and in the meaningful sharing of power and ethnicity, sexual orientation, age, religion, gender- decision-making. The organization recognizes that identity, geography, etc.); offers, access to gender everyone has a role to play in a trauma-informed responsive services; leverages the healing value approach. As one expert stated: “one does not have of traditional cultural connections; incorporates to be a therapist to be therapeutic.”12 policies, protocols, and processes that are responsive to the racial, ethnic and cultural needs of individuals served; and recognizes and addresses historical trauma.

page 11 Guidance for Implementing a Trauma-Informed Approach

Developing a trauma-informed approach requires change at multiples levels of an organization and TEN IMPLEMENTATION DOMAINS systematic alignment with the six key principles described above. The guidance provided here builds 1. Governance and Leadership upon the work of Harris and Fallot and in conjunction with the key principles, provides a starting point for developing an organizational trauma-informed 2. Policy approach.20 While it is recognized that not all public institutions and service sectors attend to trauma as an 3. Physical Environment aspect of how they conduct business, understanding the role of trauma and a trauma-informed approach 4. Engagement and Involvement may help them meet their goals and objectives. Organizations, across service-sectors and systems, are encouraged to examine how a trauma-informed 5. Cross Sector Collaboration approach will benefit all stakeholders; to conduct a trauma-informed organizational assessment and 6. Screening, Assessment, change process; and to involve clients and staff at all Treatment Services levels in the organizational development process.

The guidance for implementing a trauma-informed 7. Training and Workforce approach is presented in the ten domains described Development below. This is not provided as a “checklist” or a prescriptive step-by-step process. These are the 8. Progress Monitoring and domains of organizational change that have appeared both in the organizational change management Quality Assurance literature and among models for establishing trauma-informed care.35,36,37,38 What makes it unique 9. Financing to establishing a trauma-informed organizational approach is the cross-walk with the key principles 10. Evaluation and trauma-specific content.

page 12 GOVERNANCE AND LEADERSHIP: The leadership CROSS SECTOR COLLABORATION: Collaboration and governance of the organization support and invest across sectors is built on a shared understanding of in implementing and sustaining a trauma-informed trauma and principles of a trauma-informed approach. approach; there is an identified point of responsibility While a trauma focus may not be the stated mission of within the organization to lead and oversee this work; various service sectors, understanding how awareness and there is inclusion of the peer voice. A champion of trauma can help or hinder achievement of an of this approach is often needed to initiate a system organization’s mission is a critical aspect of building change process. collaborations. People with significant trauma histories often present with a complexity of needs, crossing POLICY: There are written policies and protocols various service sectors. Even if a mental health establishing a trauma-informed approach as clinician is trauma-informed, a referral to a trauma- an essential part of the organizational mission. insensitive program could then undermine the Organizational procedures and cross agency progress of the individual. protocols, including working with community-based agencies, reflect trauma-informed principles. This SCREENING, ASSESSMENT, AND TREATMENT approach must be “hard-wired” into practices and SERVICES: Practitioners use and are trained in procedures of the organization, not solely relying interventions based on the best available empirical on training workshops or a well-intentioned leader. evidence and science, are culturally appropriate, and reflect principles of a trauma-informed approach. PHYSICAL ENVIRONMENT OF THE Trauma screening and assessment are an essential ORGANIZATION: The organization ensures that the part of the work. Trauma-specific interventions are physical environment promotes a sense of safety acceptable, effective, and available for individuals and collaboration. Staff working in the organization and families seeking services. When trauma-specific and individuals being served must experience the services are not available within the organization, setting as safe, inviting, and not a risk to their physical there is a trusted, effective referral system in place or psychological safety. The physical setting also that facilitates connecting individuals with appropriate supports the collaborative aspect of a trauma informed trauma treatment. approach through openness, transparency, and shared spaces. TRAINING AND WORKFORCE DEVELOPMENT: On-going training on trauma and peer-support are ENGAGEMENT AND INVOLVEMENT OF PEOPLE essential. The organization’s human resource system IN RECOVERY, TRAUMA SURVIVORS, PEOPLE incorporates trauma-informed principles in hiring, RECEIVING SERVICES, AND FAMILY MEMBERS supervision, staff evaluation; procedures are in place RECEIVING SERVICES: These groups have to support staff with trauma histories and/or those significant involvement, voice, and meaningful experiencing significant secondary traumatic stress choice at all levels and in all areas of organizational or vicarious trauma, resulting from exposure to and functioning (e.g., program design, implementation, working with individuals with complex trauma. service delivery, quality assurance, cultural competence, access to trauma-informed peer PROGRESS MONITORING AND QUALITY support, workforce development, and evaluation.) ASSURANCE: There is ongoing assessment, This is a key value and aspect of a trauma-informed tracking, and monitoring of trauma-informed principles approach that differentiates it from the usual and effective use of evidence-based trauma specific approaches to services and care. screening, assessments and treatment.

page 13 FINANCING: Financing structures are designed to key principles of a trauma-informed approach. Many support a trauma-informed approach which includes of these questions and concepts were adapted from resources for: staff training on trauma, key principles the work of Fallot and Harris, Henry, Black-Pond, of a trauma-informed approach; development of Richardson, & Vandervort, Hummer and Dollard, and appropriate and safe facilities; establishment of Penney and Cave.39, 40, 41,42 peer-support; provision of evidence-supported trauma screening, assessment, treatment, and recovery While the language in the chart may seem more supports; and development of trauma-informed cross- familiar to behavioral health settings, organizations agency collaborations. across systems are encouraged to adapt the sample questions to best fit the needs of the agency, staff, EVALUATION: Measures and evaluation designs used and individuals being served. For example, a to evaluate service or program implementation and juvenile justice agency may want to ask how it would effectiveness reflect an understanding of trauma and incorporate the principle of safety when examining appropriate trauma-oriented research instruments. its physical environment. A primary care setting may explore how it can use empowerment, voice, and To further guide implementation, the chart on the next choice when developing policies and procedures to page provides sample questions in each of the ten provide trauma-informed services (e.g. explaining step domains to stimulate change-focused discussion. by step a potentially invasive procedure to a patient at The questions address examples of the work to be an OBGYN office). done in any particular domain yet also reflect the six

SAMPLE QUESTIONS TO CONSIDER WHEN IMPLEMENTING A TRAUMA-INFORMED APPROACH

KEY PRINCIPLES

Safety Trustworthiness Peer Support Collaboration Empowerment, Cultural, and and Mutuality Voice, and Historical, and Transparency Choice Gender Issues

10 IMPLEMENTATION DOMAINS

Governance • How does agency leadership communicate its support and guidance for implementing a and trauma-informed approach? Leadership • How do the agency’s mission statement and/or written policies and procedures include a commitment to providing trauma-informed services and supports? • How do leadership and governance structures demonstrate support for the voice and participation of people using their services who have trauma histories? Policy • How do the agency’s written policies and procedures include a focus on trauma and issues of safety and confidentiality? • How do the agency’s written policies and procedures recognize the pervasiveness of trauma in the lives of people using services, and express a commitment to reducing re-traumatization and promoting well-being and recovery? • How do the agency’s staffing policies demonstrate a commitment to staff training on providing services and supports that are culturally relevant and trauma-informed as part of staff orientation and in-service training? • How do human resources policies attend to the impact of working with people who have experienced trauma? • What policies and procedures are in place for including trauma survivors/people receiving services and peer supports in meaningful and significant roles in agency planning, governance, policy-making, services, and evaluation?

page 14 SAMPLE QUESTIONS TO CONSIDER WHEN IMPLEMENTING A TRAUMA-INFORMED APPROACH (continued)

10 IMPLEMENTATION DOMAINS continued Physical • How does the physical environment promote a sense of safety, calming, and de-escalation Environment for clients and staff? • In what ways do staff members recognize and address aspects of the physical environment that may be re-traumatizing, and work with people on developing strategies to deal with this? • How has the agency provided space that both staff and people receiving services can use to practice self-care? • How has the agency developed mechanisms to address gender-related physical and emotional safety concerns (e.g., gender-specific spaces and activities). Engagement • How do people with lived experience have the opportunity to provide feedback to the and organization on quality improvement processes for better engagement and services? Involvement • How do staff members keep people fully informed of rules, procedures, activities, and schedules, while being mindful that people who are frightened or overwhelmed may have a difficulty processing information? • How is transparency and trust among staff and clients promoted? • What strategies are used to reduce the sense of power differentials among staff and clients? • How do staff members help people to identify strategies that contribute to feeling comforted and empowered? Cross Sector • Is there a system of communication in place with other partner agencies working with the Collaboration individual receiving services for making trauma-informed decisions? • Are collaborative partners trauma-informed? • How does the organization identify community providers and referral agencies that have experience delivering evidence-based trauma services? • What mechanisms are in place to promote cross-sector training on trauma and trauma- informed approaches? Screening, • Is an individual’s own definition of emotional safety included in treatment plans? Assessment, • Is timely trauma-informed screening and assessment available and accessible to individuals Treatment receiving services? Services • Does the organization have the capacity to provide trauma-specific treatment or refer to appropriate trauma-specific services? • How are peer supports integrated into the service delivery approach? • How does the agency address gender-based needs in the context of trauma screening, assessment, and treatment? For instance, are gender-specific trauma services and supports available for both men and women? • Do staff members talk with people about the range of trauma reactions and work to minimize feelings of fear or shame and to increase self-understanding? • How are these trauma-specific practices incorporated into the organization’s ongoing operations?

page 15 SAMPLE QUESTIONS TO CONSIDER WHEN IMPLEMENTING A TRAUMA-INFORMED APPROACH (continued)

10 IMPLEMENTATION DOMAINS continued

Training and • How does the agency address the emotional stress that can arise when working with Workforce individuals who have had traumatic experiences? Development • How does the agency support training and workforce development for staff to understand and increase their trauma knowledge and interventions? • How does the organization ensure that all staff (direct care, supervisors, front desk and reception, support staff, housekeeping and maintenance) receive basic training on trauma, its impact, and strategies for trauma-informed approaches across the agency and across personnel functions? • How does workforce development/staff training address the ways identity, culture, community, and oppression can affect a person’s experience of trauma, access to supports and resources, and opportunities for safety? • How does on-going workforce development/staff training provide staff supports in developing the knowledge and skills to work sensitively and effectively with trauma survivors. • What types of training and resources are provided to staff and supervisors on incorporating trauma-informed practice and supervision in their work? • What workforce development strategies are in place to assist staff in working with peer supports and recognizing the value of peer support as integral to the organization’s workforce? Progress • Is there a system in place that monitors the agency’s progress in being trauma-informed? Monitoring • Does the agency solicit feedback from both staff and individuals receiving services? and Quality • What strategies and processes does the agency use to evaluate whether staff members feel Assurance safe and valued at the agency? • How does the agency incorporate attention to culture and trauma in agency operations and quality improvement processes? • What mechanisms are in place for information collected to be incorporated into the agency’s quality assurance processes and how well do those mechanisms address creating accessible, culturally relevant, trauma-informed services and supports? Financing • How does the agency’s budget include funding support for ongoing training on trauma and trauma-informed approaches for leadership and staff development? • What funding exists for cross-sector training on trauma and trauma-informed approaches? • What funding exists for peer specialists? • How does the budget support provision of a safe physical environment? Evaluation • How does the agency conduct a trauma-informed organizational assessment or have measures or indicators that show their level of trauma-informed approach? • How does the perspective of people who have experienced trauma inform the agency performance beyond consumer satisfaction survey? • What processes are in place to solicit feedback from people who use services and ensure anonymity and confidentiality? • What measures or indicators are used to assess the organizational progress in becoming trauma-informed?

page 16 Next Steps: Trauma in the Context of Community

Delving into the work on community trauma is beyond Communities can collectively react to trauma in the scope of this document and will be done in the ways that are very similar to the ways in which next phase of this work. However, recognizing that individuals respond. They can become hyper-vigilant, many individuals cope with their trauma in the safe or fearful, or they can be re-traumatized, triggered by not-so safe space of their communities, it is important circumstances resembling earlier trauma. Trauma to know how communities can support or impede the can be built into cultural norms and passed from healing process. generation to generation. Communities are often profoundly shaped by their trauma histories. Making Trauma does not occur in a vacuum. Individual sense of the trauma experience and telling the story trauma occurs in a context of community, whether of what happened using the language and framework the community is defined geographically as in of the community is an important step toward healing neighborhoods; virtually as in a shared identity, community trauma. ethnicity, or experience; or organizationally, as in a place of work, learning, or worship. How a community Many people who experience trauma readily overcome responds to individual trauma sets the foundation it and continue on with their lives; some become for the impact of the traumatic event, experience, stronger and more resilient; for others, the trauma and effect. Communities that provide a context of is overwhelming and their lives get derailed. Some understanding and self-determination may facilitate may get help in formal support systems; however, the the healing and recovery process for the individual. vast majority will not. The manner in which individuals Alternatively, communities that avoid, overlook, or and families can mobilize the resources and support misunderstand the impact of trauma may often be of their communities and the degree to which the re-traumatizing and interfere with the healing process. community has the capacity, knowledge, and skills Individuals can be re-traumatized by the very people to understand and respond to the adverse effects of whose intent is to be helpful. This is one way to trauma has significant implications for the well-being of understand trauma in the context of a community. the people in their community.

A second and equally important perspective on trauma and communities is the understanding that communities as a whole can also experience trauma. Conclusion Just as with the trauma of an individual or family, a community may be subjected to a community- As the concept of a trauma-informed approach has threatening event, have a shared experience of become a central focus in multiple service sectors, the event, and have an adverse, prolonged effect. SAMHSA desires to promote a shared understanding Whether the result of a natural disaster (e.g., a of this concept. The working definitions, key principles, flood, a hurricane or an earthquake) or an event or and guidance presented in this document represent circumstances inflicted by one group on another (e.g., a beginning step toward clarifying the meaning of this usurping homelands, forced relocation, servitude, or concept. This document builds upon the extensive mass incarceration, ongoing exposure to violence work of researchers, practitioners, policymakers, and in the community), the resulting trauma is often people with lived experience in the field. A standard, transmitted from one generation to the next in a unified working concept will serve to advance the pattern often referred to as historical, community, or understanding of trauma and a trauma-informed intergenerational trauma. approach for public institutions and service sectors.

page 17 Endnotes

1 Felitti, G., Anda, R., Nordenberg, D., et al., (1998). Relationship of child abuse and household dysfunction to many of the leading cause of death in adults: The Adverse Childhood Experiences Study. American Journal of Preventive Medicine, 14, 245-258.a 2 Anda, R.F., Brown, D.W., Dube, S.R., Bremner, J.D., Felitti, V.J., and Giles, W.G. (2008). Adverse childhood experiences and chronic obstructive pulmonary disease in adults. American Journal of Preventive Medicine, 34(5), 396-403. 3 Perry, B., (2004). Understanding traumatized and maltreated children: The core concepts – Living and working with traumatized children. The Child Trauma Academy, www.ChildTrauma.org. 4 Shonkoff, J.P., Garner, A.S., Siegel, B.S., Dobbins, M.I., Earls, M.F., McGuinn, L., …, Wood, D.L. (2012). The lifelong effects of early childhood adversity and toxic stress. Pediatrics, 129(1), 232-246. 5 McLaughlin, K.A., Green, J.G., Kessler, R.C., et al. (2009). Childhood adversity and adult psychiatric disorder in the US National Comorbidity Survey. Psychol Med. 40(4), 847-59. 6 National Child Traumatic Stress Network Systems Integration Working Group (2005). Helping children in the child welfare system heal from trauma: A systems integration approach. 7 Dozier, M., Cue, K.L., and Barnett, L. (1994). Clinicians as caregivers: Role of attachment organization in treatment. Journal of Consulting and Clinical Psychology, 62(4), 793-800. 8 Najavits, L.M. (2002). Seeking Safety: A Treatment Manual for PTSD and Substance Abuse. New York: Guilford Press. 9 Covington, S. (2008) “Women and Addiction: A Trauma-Informed Approach.” Journal of Psychoactive Drugs, SARC Supplement 5, November 2008, 377-385. 10 Anda, R.F., Brown, D.W., Dube, S.R., Bremner, J.D., Felitti, V.J, and Giles, W.H. (2008). Adverse childhood experiences and chronic obstructive pulmonary disease in adults. American Journal of Preventive Medicine, 34(5), 396-403. 11 Dube, S.R., Felitti, V.J., Dong, M., Chapman, D.P., Giles, W.H., and Anda, R.F. (2003). Childhood abuse, neglect, and household dysfunction and the risk of illicit drug use: The Adverse Childhood Experiences Study. Pediatrics, 111(3), 564-572. 12 Ford, J. and Wilson, C. (2012). SAMHSA’s Trauma and Trauma-Informed Care Experts Meeting. 13 Ford, J.D. (2013). Treatment of complex trauma: A sequenced, relationship-based approach. New York, NY, US: Guilford Press. 14 Wilson, C. and Conradi, L. (2010). Managing traumatized children: A trauma systems perspective. Psychiatry. doi: 10.1097/MOP.0b013e32833e0766 15 Dutton, M.A., Bonnie, L.G., Kaltman, S.I., Roesch, D.M., and Zeffiro, T.A., et al. (2006). Intimate partner violence, PTSD, and adverse health outcomes. Journal of Interpersonal Violence, 21(7), 955-968. 16 Campbell, R., Greeson, M.R., Bybee, D., and Raja, S. (2008). The co-occurrence of childhood sexual abuse, adult sexual assault, intimate partner violence, and sexual harassment: A mediational model of posttraumatic stress disorder and physical health outcomes. Journal of Consulting and Clinical Psychology, 76(2), 194-207. 17 Bonomi, A.E., Anderson, M.L., Rivara, F.P., Thompson, R.S. (2007). Health outcomes in women with physical and sexual intimate partner violence exposure. Journal of Women’s Health, 16(7), 987-997. 18 Norris, F.H. (1990). Screening for traumatic stress: A scale for use in the general population. Journal of Applied Social Psychology, 20, 1704-1718.

page 18 19 Norris, F.H. and Hamblen, J.L. (2004). Standardized self-report measures of civilian trauma and PTSD. In J.P. Wilson, T.M. Keane and T. Martin (Eds.), Assessing psychological trauma and PTSD (pp. 63-102). New York: Guilford Press. 20 Orisllo, S.M. (2001). Measures for acute stress disorder and posttraumatic stress disorder. In M.M. Antony and S.M. Orsillo (Eds.), Practitioner’s Guide to Empirically Based Measures of Anxiety (pp. 255-307). New York: Kluwer Academic/Plenum 21 Weathers, F.W. and Keane, T.M. (2007). The criterion A problem revisited: Controversies and challenges in defining and measuring psychological trauma. Journal of Traumatic Stress, 20(2), 107-121. 22 Van der Kolk, B. (2003): The neurobiology of childhood trauma and abuse. Laor, N. and Wolmer, L. (guest editors): Child and Adolescent Psychiatric Clinics of North America: Posttraumatic Stress Disorder, 12 (2). Philadelphia: W.B. Saunders, 293-317. 23 Herman, J. (1992). Trauma and recovery: The aftermath of violence – from domestic abuse to political terror. New York: Basic Books. 24 Harris, M. and Fallot, R. (2001). Using trauma theory to design service systems. New Directions for Mental Health Services, 89. Jossey Bass. 25 Bloom, S. (2012). “The Workplace and trauma-informed systems of care.” Presentation at the National Network to Eliminate Disparities in Behavioral Health. Cohen, J., Mannarino, A., Deblinger, E., (2004). Trauma-focused Cognitive Behavioral Therapy (TF-CBT). Available from: http://tfcbt.musc.edu/ SAMHSA’s National Center for Trauma-Informed Care (2012), Report of Project Activities Over the Past 18 Months, History, and Selected Products. Available from: http://www.nasmhpd.org/docs/NCTIC/NCTIC_Final_Report_3-26-12.pdf 26 Bloom, S. L., and Farragher, B. (2011). Destroying sanctuary: the crisis in human services delivery systems. New York: Oxford University Press.Guarino, K., Soares, P., Konnath, K., Clervil, R., and Bassuk, E. (2009). Trauma-In- formed Organizational Toolkit. Rockville, MD: Center for Mental Health Services, Substance Abuse and Mental Health Services Administration, and the Daniels Fund, the National Child Traumatic Stress Network and the W.K. Kellogg Foundation. 27 Dekel, S., Ein-Dor, T., and Zahava, S. (2012). Posttraumatic growth and posttraumatic distress: A longitudinal study. Psychological Trauma: Theory, Research, Practice, and Policy, 4(1), 94-101. 28 Jakupcak, M., Tull, M.T., McDermott, M.J., Kaysen, D., Hunt, S., and Simpson, T. (2010). PTSD symptom clusters in relationship to alcohol misuse among Iraq and Afghanistan war veterans seeking post-deployment VA health care. Addictive Behaviors 35(9), 840-843. 29 Goodwin, L. and Rona, R.J. (2013) PTSD in the armed forces: What have we learned from the recent cohort studies of Iraq/Afghanistan?, Journal of Mental Health 22(5), 397-401. 30 Wolf, E.J., Mitchell, K.S., Koenen, C.K., and Miller, M.W. (2013) Combat exposure severity as a moderator of genetic and environmental liability to post-traumatic stress disorder. Psychological Medicine. 31 National Analytic Center-Statistical Support Services (2012). Trauma-Informed Care White Paper, prepared for the Substance Abuse and Mental Health Services Administration, Center for Behavioral Health Statistics and Quality. 32 Ford, J.D., Fallot, R., and Harris, M. (2009). Group Therapy. In C.A. Courtois and J.D. Ford (Eds.), Treating complex traumatic stress disorders: An evidence-based guide (pp.415-440). New York, NY, US: Guilford Press. 33 Brave Heart, M.Y.H., Chase, J., Elkings, J., and Altschul, D.B. (2011). Historical trauma among indigenous peoples of the Americas: Concepts, research, and clinical considerations. Journal of Psychoactive Drugs, 43 (4), 282-290.

page 19 34 Brown, S.M., Baker, C.N., and Wilcox, P. (2012). Risking connection trauma training: A pathway toward trauma-informed care in child congregate care settings. Psychological Trauma: Theory, Research, Practice, and Policy, 4 (5), 507-515. 35 Farragher, B. and Yanosy, S. (2005). Creating a trauma-sensitive culture in residential treatment. Therapeutic Communities, 26(1), 93-109. 36 Elliot, D.E., Bjelajac, P., Fallot, R.D., Markoff, L.S., and Reed, B.G. (2005). Trauma-informed or trauma-denied: Principles and implementation of trauma-informed services for women. Journal of Community Psychology, 33(4), 461-477. 37 Huang, L.N., Pau, T., Flatow, R., DeVoursney, D., Afayee, S., and Nugent, A. (2012). Trauma-informed Care Models Compendium. 38 Fallot, R. and Harris, M. (2006). Trauma-Informed Services: A Self-Assessment and Planning Protocol. Community Connections. 39 Henry, Black-Pond, Richardson and Vandervort. (2010). Western Michigan University, Southwest Michigan Children’s Trauma Assessment Center (CTAC). 40 Hummer, V. and Dollard, N. (2010). Creating Trauma-Informed Care Environments: An Organizational Self- Assessment. (part of Creating Trauma-Informed Care Environments curriculum) Tampa FL: University of South Florida. The Department of Child and Family Studies within the College of Behavioral and Community Sciences. 41 Penney, D. and Cave, C. (2012). Becoming a Trauma-Informed Peer-Run Organization: A Self-Reflection Tool (2013). Adapted for Mental Health Empowerment Project, Inc. from Creating Accessible, Culturally Relevant, Domestic Violence- and Trauma-Informed Agencies, ASRI and National Center on Domestic Violence, Trauma and Mental Health.

page 20 Paper Submitted by: SAMHSA’s Internal Trauma and Trauma-Informed Care Work Group with support from CMHS Contract: National Center for Trauma-Informed Care and Alternatives to Seclusion and Restraint.

A very special thank you to the Expert Panelists for their commitment and expertise in advancing evidence-based and best practice models for the implementation of trauma-informed approaches and practices.

SMA 14-4884 First printed 2014

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THE PEDAGOGY OF TRAUMA-INFORMED LAWYERING

SARAH KATZ & DEEYA HALDAR*

“Trauma-informed practice” is an increasingly prevalent approach in the delivery of therapeutic services, social and human services, and now legal practice. Put simply, the hallmarks of trauma- informed practice are when the practitioner puts the realities of the client’s trauma experiences at the forefront in engaging with the client, and adjusts the practice approach informed by the individual client’s trauma experience. Trauma-informed practice also encompasses the practitioner employing modes of self-care to counterbalance the effect the client’s trauma experience may have on the practitioner. This article posits that teaching trauma-informed practice in law school clinics furthers the goals of clinical teaching, and is a critical aspect of preparing law students for legal careers. Trauma-informed practice is relevant to many legal practice areas. Clients frequently seek legal assistance at a time when they are highly vulnerable and emotional. As clinical professors who each supervise a family law clinic, we of course teach our students how to connect with their clients, while drawing the appropriate boundaries of the attorney-client relationship. Equally challenging and important is helping our students cultivate insight into identifying and addressing trauma and its effects. Many of our clinics’ clients are survivors of intimate partner violence or have experienced other significant traumatic events that are relevant to their family court matters. Law students should learn to recognize the effects these traumatic experiences may have on their clients’ actions and behaviors. Further, law students should learn to recognize the effect that their clients’ stories and hardships are having on their own advocacy and lives as a whole. It is particularly crucial that we educate our law students about the effects of vicarious trauma and help them develop tools to manage its effects as they move through their clinical work and ultimately into legal practice. This article argues that four key characteristics of trauma-informed lawyering are: identifying trauma, adjusting the attorney-cli-

* The authors are Sarah Katz, Assistant Clinical Professor of Law, James E. Beasley School of Law, Temple University, and Deeya Haldar, Adjunct Professor of Law, Thomas R. Kline School of Law at Drexel University. The authors are extremely grateful for the research assistance of Khadijeh Jaber, Temple Law ’15, and Janice Daul, Drexel Law ’14. Sarah Boonin, Brad Colbert, Phyllis Goldfarb, Natalie Nanasi and Jane Stoever provided invaluable feedback on an early version at the Clinical Law Review workshop at New York University. Colleagues at the AALS Clinical Conference, AALS Family Law Mid-Year Meeting, and the Mid-Atlantic Clinical Workshop gave thoughtful suggestions and edits. Thank you also to Susan Brooks for helpful guidance as this project unfolded.

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ent relationship, adapting litigation strategy, and preventing vicarious trauma. Specifically, the article discusses how to teach trauma-informed lawyering through direct examples of pedagogical approaches.

INTRODUCTION When Victoria1 came into the clinic for an intake appointment with a law student, the student knew only that this was a child and spousal support case. After explaining the goals and purpose of an intake interview, the law student asked a simple question: what legal problem brings you here today? Victoria broke down crying and began explaining that about two years before, she learned that her husband of twenty- one years had been sexually abusing their now thirteen year-old daughter and fifteen year-old son since they were small children. Victoria stated that her husband had sometimes physically abused her, but she knew nothing of the sexual abuse. After the disclosure, she had filed for and been granted a protection order in Tennessee on behalf of herself and her children. She then moved with her children from the marital home in Tennessee to Philadelphia to be with family. The Tennessee protection order expired, and because of threatening phone messages received from her husband, she had sought a protection order again in Philadelphia. A local domestic violence legal services agency had referred her to the clinic for help with a child and spousal support case. During the meeting with the law student, Victoria became increasingly upset, and continued to share details of the abuse she and her children had suffered. Victoria seemed intent on convincing the law student that she really had not known about the abuse of her children while it was happening. The law student offered tissues and told Victo- ria repeatedly that he believed her, and that it must have been so awful to make this realization. When the law student tried to move the focus of the conversation to the pending support case, it turned out that Victo- ria had not brought any of the paperwork she had been asked to bring by the clinic’s office manager. The law student got as much information as Victoria could provide, and then explained that for the clinic to see if it could help her with the case, he would need to see the paperwork. The law student and Victoria scheduled another appointment, and the law student provided Victoria a written list of the needed documents. The law student discussed with his supervisor, and later shared in class case rounds, how challenging the interview had been. Victoria did bring the needed documents to the second appointment, and the clinic ultimately accepted the case.

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Prior to going to court, Victoria called the law student asking if she could just not attend the court date, because she was terrified of seeing her husband. The law student calmly explained that Victoria needed to be present if she wanted to pursue the support claim. They scheduled a time to meet the day before court, and the law student spent a lot of time reviewing with Victoria exactly what occurs in a support hearing, including where she and others would sit, what types of questions would be asked, and what the law student would be doing. The law student also arranged to meet Victoria prior to the hearing time at a location near the courthouse, so they could walk into court together. Because the litigation became very contentious and there were multiple court hearings, the law student repeated this approach each time there was a court hearing. He also encouraged Victoria to speak with her therapist about her anxiety over dealing with her husband. Ultimately the support case was resolved favorably for Victoria.

While many reading would view the description of the law student’s handling of the case above as simply “good lawyering,” it is also an example of “trauma-informed practice.” “Trauma-informed practice” is an increasingly prevalent approach in the delivery of therapeutic services, social and human services, and now legal practice. Put simply, the hallmarks of trauma-informed practice are when the practitioner, here a law student, puts the realities of the clients’ trauma experiences at the forefront in engaging with clients and adjusts the practice approach informed by the individual client’s trauma experience. Trauma-informed practice also encompasses the practitioner employing modes of self-care to counterbalance the effect the client’s trauma experience may have on the practitioner. Although there is a body of clinical legal education literature devoted to the value of teaching and developing law students’ empathy toward their clients, less attention has been devoted to the importance of teaching trauma-informed practice, the pedagogy of teaching law students to recognize and understand trauma, and the effect of vicarious trauma on law students (and attorneys) who work with clients who have experienced serious trauma. Clients frequently seek legal assistance at a time when they are highly vulnerable and emotional. In practice areas such as family law, immigration, child welfare, criminal law and others, by necessity, clients must share some of the most intimate and painful details of their lives. In our family law clinics, our students are taught how to connect with their clients, while drawing the appropriate boundaries of the attorney-client relationship. Equally challenging and important is helping our students cultivate insight into identifying and addressing trauma and its effects. Many of \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 4 8-MAR-16 10:34

362 CLINICAL LAW REVIEW [Vol. 22:359 our clinics’ clients are domestic violence survivors or have experienced other significant traumatic events that are relevant to their family court matters. Law students must learn to recognize the effects these traumatic experiences may have on their clients’ actions and behaviors. Further, law students must learn to recognize the effect that their clients’ stories and hardships are having on their own advocacy and lives as a whole. It is particularly crucial that we educate our law students about the effects of vicarious trauma and help them develop tools to manage its effects as they move through their clinical work, and ultimately into legal practice. Although the authors draw from their own experience teaching family law clinics, other types of law school clinics could likely benefit from the pedagogy of trauma-informed lawyering, such as immigration law, criminal law, juvenile law, and veterans’ rights law.2 A significant body of literature exists regarding working with traumatized children involved in the legal system, including in the law school clinical context.3 It is the authors’ intention that this article will provide tools for teaching trauma-informed practice in all law school clinic settings, while the examples offered are specific to family law experience. This article proceeds in three sections. The first section will further explore trauma-informed practice, and what is meant by the terms “trauma,” and “vicarious trauma.” The second section will argue why teaching trauma-informed lawyering in a clinical legal educa-

2 See, e.g., Lynette M. Parker, Increasing Law Students’ Effectiveness When Represent- ing Traumatized Clients: A Case Study of the Katherine & George Alexander Community Law Center, 21 GEO. IMMIGR. L.J. 163 (2007) (discussing students in immigration clinic begin confronted with traumatized client seeking asylum); Ingrid Loreen, Therapeutic Ju- risprudence & The Law School Asylum Clinic, 17 ST. THOMAS L. REV. 835, 845 (2005) (arguing that students need training in therapeutic jurisprudence topics, including trauma training in order to adequately serve traumatized clients seeking asylum); Sarah Mourer, Study, Support, and Save: Teaching Sensitivity in the Law School Death Penalty Clinic, 7 U. MIAMI L. REV. 357 (2013) (discussing students exposed to clients with trauma histories in the Miami Law Death Penalty Clinic); Capt. Evan R. Seamone, The Veterans’ Lawyer as Counselor: Using Therapeutic Jurisprudence to Enhance Client Counseling for Combat Vet- erans with Posttraumatic Stress Disorder, 202 MIL. L. REV. 185 (2009). 3 See Carolyn Salisbury, From Violence and Victimization to Voice and Validation: In- corporating Therapeutic Jurisprudence in a Children’s Law Clinic, 17 ST. THOMAS L. REV. 623 (2005). See also Renee DeBoard-Lucas, Kate Wasserman, Betsy McAlister Groves & Megan Bair-Merritt, 16 Trauma-Informed, Evidence-Based Recommendations for Advo- cates Working with Children Exposed to Intimate Partner Violence, 32(9) CHILD L. PRAC. 136 (2013); JEAN KOH PETERS, REPRESENTING CHILDREN IN CHILD PROTECTIVE PRO- CEEDINGS: ETHICAL AND PRACTICAL DIMENSIONS 9 (2007); NATIONAL CHILD TRAUMATIC STRESS NETWORK, BIRTH PARENTS WITH TRAUMA HISTORIES AND THE CHILD WELFARE SYSTEM: A GUIDE FOR JUDGES AND ATTORNEYS, available at http://www.nctsn.org/products/birth-parents-trauma-histories-child-welfare-system-guide-birth-parents-2012 (last viewed Dec. 20, 2015). \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 5 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 363 tion setting makes sense. The third section will identify four hallmarks of trauma-informed legal practice: (1) identifying trauma; (2) adjusting the lawyer-client relationship; (3) adapting litigation strategy; and (4) preventing vicarious trauma. The article then discusses how to incorporate these hallmarks of trauma-informed lawyering as teaching goals in law school clinics through direct examples of pedagogical approaches.

I. DEFINING TRAUMA-INFORMED PRACTICE Trauma-informed practice has gained traction in the therapeutic world for at least the last decade. As one practitioner has explained, “[t]rauma-informed practice incorporates assessment of trauma and trauma symptoms into all routine practice; it also ensures that clients have access to trauma-focused interventions, that is, interventions that treat the consequences of traumatic stress. A trauma-informed perspective asks clients not ‘What is wrong with you?’ but instead, ‘What happened to you?’”4 As psychiatrist Sandra Bloom has written, “It connects a person’s behavior to their trauma response rather than iso- lating their actions to the current circumstances and assuming a character flaw.”5 A trauma-informed system also focuses on how services are delivered, and how service-systems are organized.6 These approaches in the therapeutic context have begun to profoundly inform the delivery of other types of human and social services, such as child welfare,7 law enforcement, and the courts.8 But in order to understand what is meant by trauma-informed practice, an understanding of trauma, and vicarious trauma is necessary; this section will define and explain these terms, and then return to a discussion of how trauma-

4 Nancy Smyth, Trauma-Informed Social Work Practice: What Is It and Why Should We Care?, SOCIAL WORK/SOCIAL CARE & MEDIA (Mar. 20, 2012), available at http://swsc media.wordpress.com/2012/03/20/trauma-informed-social-work-practice-what-is-it-and- why-should-we-care-opinion-piece-by-dr-nancy-smyth/ (citing SANDRA L. BLOOM, & BRIAN FARRAGHER, DESTROYING SANCTUARY: THE CRISIS IN HUMAN SERVICES DELIVERY SYSTEMS (2011)). 5 Sandra L. Bloom, Why Should Philadelphia Become a Trauma-Informed City, Brief- ing Paper Prepared for the Philadelphia Mayoral Forum, sponsored by the Scattergood Foundation (2015), available at http://sanctuaryweb.com/Portals/0/Bloom%20Pubs/2015 %20Bloom%20Why%20should%20Philadelphia%20become%20a%20Trauma.pdf. 6 Sandra L. Bloom, The Sanctuary Model of Trauma-Informed Organizational Change, 16 (1) THE SOURCE 12, 14 (Nat’l Abandoned Infants Resource Center, 2007). 7 ABA CENTER FOR CHILDREN & THE LAW , IMPLEMENTING TRAUMA-INFORMED PRACTICES IN CHILD WELFARE (2013) available at http://childwelfaresparc.org/wp-content/ uploads/2013/11/Implementing-Trauma-Informed-Practices.pdf. 8 SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION, ESSENTIAL COMPONENTS OF TRAUMA-INFORMED JUDICIAL PRACTICE, available at http://www.nasmh pd.org/sites/default/files/JudgesEssential_5%201%202013finaldraft.pdf (last viewed Dec. 20, 2015) [hereinafter SAMHSA]. \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 6 8-MAR-16 10:34

364 CLINICAL LAW REVIEW [Vol. 22:359 informed practice is implemented.

A. Understanding Trauma An event is defined as traumatic when it renders an individual’s internal and external resources inadequate, making effective coping impossible.9 A traumatic experience occurs when an individual subjec- tively experiences a threat to life, bodily integrity or sanity.10 The American Psychological Association further defines trauma as: [An] emotional response to a terrible event like an accident, rape or natural disaster. Immediately after the event, shock and denial are typical. Longer term reactions include unpredictable emotions, flashbacks, strained relationships and even physical symptoms like headaches or nausea. While these feelings are normal, some people have difficulty moving on with their lives.11 External threats that result in trauma can include “experiencing, witnessing, anticipating, or being confronted with an event or events that involve actual or threatened death or serious injury, or threats to the physical integrity of one’s self or others.”12 Trauma can take many different forms. A 1997 study found that about one third of the population will experience severe trauma at some point.13 The most common sources of trauma, experienced by 15 to 35 percent of the people surveyed, included witnessing someone being hurt or killed, or being involved in a fire, flood, or other such life-threatening accidents.14 Other common experiences included robbery and sudden deaths of loved ones.15 An estimated 0.5 percent of people (1.2 million) in the United States were victims of a violent crime in 2014.16 Researchers have begun to confirm the interconnec- tion between the effects of racism and trauma.17 Further the intercon-

9 Richard R. Kluft, Sandra L. Bloom, & John D. Kinzie, Treating the Traumatized Patient and Victims of Violence, in 86 NEW DIRECTIONS IN MENTAL HEALTH SERVICES 79 (2000) (citing B. A. Van der Kolk, The Compulsion to Repeat the Trauma: Re-enactment, Re-victimization, and Masochism, 12 PSYCHIATRIC CLINICS OF N. AM. 2 (1989)). 10 LAURIE A. PEARLMAN & KAREN SAAKVITNE, TRAUMA AND THE THERAPIST: COUNTERTRANSFERENCE AND VICARIOUS TRAUMATIZATION IN PSYCHOTHERAPY WITH INCEST SURVIVORS 60 (1995). 11 Trauma, AMERICAN PSYCHOLOGICAL ASSOCIATION, http://www.apa.org/topics/ trauma/ (last viewed Dec. 20, 2015). 12 Id. 13 S.D. Solomon & J.R.T. Davidson, Trauma: Prevalence, Impairment, Service Use, and Cost, 58 J. CLINICAL PSYCHIATRY (SUPPL. 9) 5-11, 7 (1997). 14 Id. 15 Id. 16 Jennifer L. Truman & Lynn Langton, Criminal Victimization, 2014 at 1 (U.S. Dept. of Justice Sept. 29, 2015), available at http://www.bjs.gov/content/pub/pdf/cv14.pdf. 17 See, e.g., Dottie Lebron, Laura Morrison, Dan Ferris, Amanda Alcantara, Danielle Cummings, Gary Parker & Mary McKay, The Trauma of Racism (McSilver Institute for \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 7 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 365 nection between urban poverty and trauma has been established.18 Intimate partner violence and child maltreatment are other examples of trauma, and are far more prevalent than is often acknowledged. On average, twenty four people per minute are victims of rape, physical violence, or stalking by an intimate partner in the United States—more than twelve million women and men over the course of a year.19 Nearly three in ten women and one in ten men in the US have experienced rape, physical violence, and/or stalking by a partner and report a related impact on their functioning.20 A reported 1.71% of children are maltreated in the United States.21 The rates of abuse are higher among the population of litigants in family court. The anecdotal experience of our family law clinics is many of our clients have experienced serious incidents of physical or sexual abuse by an intimate partner, and in the past as a child. They may also have witnessed or experienced their own child(ren) being physically or sexually abused. These anecdotal observations are supported by empirical study. For example, one study indicated that 80% of parents who were separating or divorcing were able to agree on custody and parenting time with their children. But among the 20% of parents who needed the court to intervene to decide custody, domestic violence was remarkably prevalent, and a domestic violence allegation was substantiated in 41-55% of these cases.22 In fact, experts have noted the “majority of parents in ‘high-conflict divorces’ involving child custody disputes report a history of domestic violence.”23 The National Center for State Courts has found documented evidence in court records of domestic violence in 20-55% of contested custody cases.24

Poverty Policy & Research, NYU 2015), available at http://www.mcsilver.org/wp-content/ uploads/2015/04/Trauma-of-Racism-Report.pdf; Glenn H. Miller, Commentary: The Trauma of Insidious Racism 37(1) J AM. ACAD. PSYCHIATRY LAW 41, 42 (Mar. 2009). 18 See, e.g., KATHRYN COLLINS ET AL., UNDERSTANDING THE IMPACT OF TRAUMA AND URBAN POVERTY ON FAMILY SYSTEMS: RISKS, RESILIENCE & INTERVENTIONS (Family In- formed Trauma Treatment Center 2010). 19 CENTERS FOR DISEASE CONTROL, UNDERSTANDING INTIMATE PARTNER VIOLENCE FACT SHEET, available at, http://www.cdc.gov/ViolencePrevention/pdf/IPV-FactSheet.pdf (last viewed Dec. 20, 2015). 20 Id. 21 U.S. DEPT. OF HEALTH AND HUMAN SERVICES, FOURTH NATIONAL INCIDENCE STUDY OF CHILD ABUSE AND NEGLECT (NIS–4): REPORT TO CONGRESS, at 3-3 (2010). 22 Janet R. Johnson, Soyoung Lee, Nancy W. Oleson, & Marjorie G. Walters,, Allega- tions and Substantiations of Abuse in Custody-Disputing Families, 43 FAM. CT. REV. 283, 289-290 (2005). 23 PETER JAFFE, MICHELLE ZERWER, SAMANTHA POISSON,ACCESS DENIED: THE BAR- RIERS OF VIOLENCE AND POVERTY FOR ABUSED WOMEN AND THEIR CHILDREN AFTER SEPARATION 1 (2002). 24 NATIONAL CENTER FOR STATE COURTS, DOMESTIC VIOLENCE AND CHILD CUSTODY DISPUTES: A RESOURCE HANDBOOK FOR JUDGES AND COURT MANAGERS 5 (1997). \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 8 8-MAR-16 10:34

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The trauma experiences of clients have a direct relationship to how they relate to their attorneys and the courts, because trauma has a distinct physiological effect on the brain, which in turn affects behavior in the short-term and long-term. Colloquially, this evolutionary response is sometimes referred to as a “flight, fight, freeze.” As one writer has explained: The brain’s prefrontal cortex—which is key to decision-making and memory—often becomes temporarily impaired. The amygdala, known to encode emotional experiences, begins to dominate, triggering the release of stress hormones and helping to record particular fragments of sensory information. Victims can also experience tonic immobility—a sensation of being frozen in place—or a dissociative state.25 Subsequently, a traumatic experience becomes encoded as a traumatic memory and is stored in the brain via a pathway involving high levels of activity in the amygdala, making recall of the traumatic event highly affectively charged.26 Recall, either intentional or through inad- vertent exposure to internal or external stimuli related to the trauma, leads to the release of stress hormones.27 For many individuals who have experienced trauma, specific conditioned stimuli may be linked to the traumatic event (unconditional stimulus) such that re-exposure to a similar environment produces recurrence of fear and anxiety similar to what was experienced during the trauma itself.28 Thus the physiological effects of trauma can manifest far after the traumatic incident occurs, as the amygdala does not always discriminate between real dangers and memory from a past dangerous situation. In response to traumatic experiences, an individual may feel intense fear, helplessness, or horror.29 People process these reactions differently, resulting in different indicators of trauma.30 Four common behaviors are: anxiety and depression, intense anger towards self or others, the formation of unhealthy relationships, and denial.31 Yet, although these common behaviors can result from trauma, the reac-

25 Rebecca Ruiz, Why Don’t Cops Believe Rape Victims?, SLATE (June 19, 2013), http:// www.slate.com/articles/news_and_politics/jurisprudence/2013/06/why_cops_don_t_believe_ rape_victims_and_how_brain_science_can_solve_the.html. 26 Ronald A. Ruden, Neurobiology of Encoding Trauma, in THE ENCYCLOPEDIA OF TRAUMA: AN INTERDISCIPLINARY GUIDE (Charles R. Figley ed.) 228, 230-231 (2012). 27 Id. 28 Dennis Charney, Psychobiological Mechanisms of Resilience and Vulnerability: Im- plications for Successful Adaptation to Extreme Stress, 2 AM. J. PSYCHIATRY 161 (2004). 29 Kluft et al., supra note 9, at 1. R 30 Id. at 3. 31 Sandra L. Bloom, The Grief That Dare Not Speak Its Name Part I: Dealing With the Ravages of Childhood Abuse, PSYCHOTHERAPY REV. 2 (9), 408, 408-409 (2000). See also JUDITH HERMAN, TRAUMA AND RECOVERY: THE AFTERMATH OF VIOLENCE – FROM DO- MESTIC TO POLITICAL TERROR, 88-95 (1992). \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 9 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 367 tions to traumatic events can look different among individuals because although trauma is a common human experience, it is affected by a wide range of “personality styles, ego strengths, diatheses for mental and physical illnesses, social supports, intercurrent stressors, and cultural backgrounds.”32 Thus, the reactions to trauma are psychobio- logic and are influenced by complex individual and social contexts, all of which determine the ways in which each individual processes trauma.33 As a result there are no universal indicators of, or responses to, traumatic events.34 The responses to trauma can be short term or long term.35 Short- term consequences can include re-experiencing the traumatic event, such as having recurrent or intrusive distressing recollections of the event, acting or feeling as if the event is recurring, or avoidance of stimuli associated with the trauma.36 Avoidance may include efforts to avoid thoughts, feelings, or conversations associated with the trauma, efforts to avoid activities, places, or people that arouse recollections of the trauma. Avoidance can also include amnesia for aspects of the trauma, detachment or estrangement from others, defensive mum- bling, or dissociative symptoms.37 Dissociation may consist of a diminished awareness or realization of ones surroundings, problems with concentration and attention, or increased arousal.38 Increased arousal refers to such symptoms as experiencing difficulty falling or staying asleep, hypervigilance, or an exaggerated startle response.39 Long-term consequences may include persistence of the short term symptoms, chronic guilt and shame, a sense of helplessness and ineffectiveness, a sense of being permanently damaged, difficulty trusting others or maintaining relationships, vulnerability to re-victimization, and becoming a perpetrator of trauma.40 The responses may also be triggered or exacerbated by anniversaries of traumatic events or stressors that are suggestive of the past trauma.41

B. Understanding Vicarious Trauma Vicarious trauma, also sometimes called “compassion fatigue” or “secondary trauma,” is a term for the effect that working with survi-

32 Kluft et al., supra note 9, at 3. R 33 Id. at 1. 34 Id. at 3. 35 Id. at 4. 36 Id.at 4. 37 Id. at 4-5; HERMAN, supra note 31, at 89. R 38 HERMAN, supra note 31, at 94. R 39 Id. at 5. 40 Id. at 4. 41 Id. \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 10 8-MAR-16 10:34

368 CLINICAL LAW REVIEW [Vol. 22:359 vors of trauma may have on counselors, therapists, doctors, attorneys, and others who directly help them.42 Vicarious traumatization refers to harmful changes that occur in professionals’ views of themselves, others, and the world, as a result of exposure to the graphic or traumatic experiences of their clients.43 As psychologist Mark Evces has written, “[s]econdary, or indirect, traumatic exposure is not limited to mental health providers. Anyone who repeatedly and empathically engages with traumatized individuals can be at risk for distress and impairment due to indirect exposure to others’ traumatic material.”44 Vicarious trauma is distinct from “burnout,” which refers to the toll that work may take over time.45 Burnout can usually be remedied by taking time off, by moving to a new job. Vicarious trauma is a state of tension or preoccupation with clients’ stories of trauma.46 It may be marked by either an avoidance of clients’ trauma histories (almost a numbness to the trauma) or by a state of persistent hyperarousal.47 Professionals experiencing vicarious trauma may experience painful images and emotions associated with their clients’ traumatic memories and may, over time, incorporate these memories into their own memory systems.48 As a result, there may be disruptions to schema in five areas.49 These are safety, trust, esteem, intimacy, and control, each representing a psychological need.50 Each schema is experienced in relation to self and others. The harmful effects of vicarious trauma occur through the disruptions to these schemas.51 Vicarious trauma “has been described as a common, long-term response to working with traumatized populations, and as part of a con- tinuum of helper reactions ranging from vicarious growth and resilience to vicarious traumatization and impairment.”52 As a normal response to the continuing challenges to their beliefs

42 AMERICAN COUNSELING ASSOCIATION, VICARIOUS TRAUMA FACT SHEET #9, available at, http://www.counseling.org/docs/trauma-disaster/fact-sheet-9—-vicarious-trauma.pdf ?sfvrsn=2 (last viewed Dec. 20, 2015). 43 Katie Baird & Amanda C. Kracen, Vicarious Traumatization and Secondary Trau- matic Stress: A Research Synthesis, 19 COUNSELING PSYCHOL. Q. 181 (2006). 44 Mark R. Evces, What is Vicarious Trauma?, in VICARIOUS TRAUMA AND DISASTER MENTAL HEALTH: UNDERSTANDING RISKS AND PROMOTING RESILIENCE, 9, 10 (Gertie Quintangon & Mark R. Evces, eds.) (2015). 45 Lisa McCann & Larie A. Pearlman, Vicarious Traumatization: A Framework for Un- derstanding the Psychological Effects of Working with Victims, 3 J. TRAUMATIC STRESS 131, 133 (1990). 46 AMERICAN COUNSELING ASSOCIATION, supra note 42. R 47 Id. 48 McCann & Pearlman, supra note 45, at 144. R 49 Baird & Kracen, supra note 43. R 50 Id. 51 Id. 52 Evces, supra note 44, at 11. R \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 11 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 369 and values, individuals experiencing vicarious trauma may exhibit va- rying symptoms.53 Some of these symptoms include: denial of clients’ trauma, over-identification with clients, no time and energy for oneself, feelings of great vulnerability, experiencing insignificant daily events as threatening, feelings of alienation, social withdrawal, discon- nection from loved ones, loss of confidence that good is still possible in the world, generalized despair and hopelessness, loss of feeling secure, increased sensitivity to violence, cynicism, feeling disillusioned by humanity, disrupted frame of reference, changes in identity, world view, and spirituality, diminished self-capacities, impaired ego resources, and alterations in sensory experiences.54

C. Understanding Trauma-Informed Practice The increase in studies on trauma and vicarious trauma, and the various measures taken to mitigate the effects of the two have resulted in a systemic approach to how human services can be delivered to address the concerns of trauma and vicarious trauma simultaneously. “A trauma-informed approach to services or intervention acknowledges the prevalence and impact of trauma and attempts to create a sense of safety for all participants, whether or not they have a trauma- related diagnosis.”55 To be trauma-informed means to be educated about the impact of interpersonal violence and victimization on an individual’s life and development.”56 Providing trauma-informed services requires all the staff of an organization to understand the effects of trauma on the people being served, so that all interactions with the organization reduce the possibility of retraumatization and are consistent with the process of recovery.57 Trauma-informed practice recognizes the ways in which trauma impacts systems and individuals.58 Becoming trauma informed results in the recognition that behavioral

53 Id. 54 Christian Pross, Burnout, vicarious traumatization and its prevention, 16 TORTURE 1 (2006). 55 SAMSHA, supra note 8, at 1. R 56 Denise E. Elliott and Paula Bjelajac et al., Trauma-Informed or Trauma Denied: Principles and Implementation of Trauma-Informed Services for Women, 33(4) JOURNAL OF COMMUNITY PSYCHOLOGY, 461-477, 462 (2005). 57 Id. 58 Whereas vicarious trauma impacts individuals exposed to trauma victims, organizations working with a traumatized population can experience organizational trauma, in which an organization’s adaptation to chronic stress can create “a state of dysfunction that in some cases virtually prohibits the recovery of the individual clients who are the source of its underlying and original mission, and damages many of the people who work within it.” SANDRA L. BLOOM, & BRIAN FARRAGHER, DESTROYING SANCTUARY: THE CRISIS IN HUMAN SERVICES DELIVERY SYSTEMS 14 (2011). See also Shana Hormann and Pat Viv- ian, Toward and Understanding of Traumatized Organizations and How to Intervene in Them, 11(3) TRAUMATOLOGY 159, 160-164 (September 2005). \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 12 8-MAR-16 10:34

370 CLINICAL LAW REVIEW [Vol. 22:359 symptoms, mental health diagnoses, and involvement in the criminal justice system are all manifestations of injury, rather than indicators of sickness or badness – the two current explanations for such behavior.59 As a result, trauma-informed services and programs are more supportive (rather than controlling and punitive), avoid retraumatiz- ing and punishing those served, and avoid vicarious traumatization of those serving the survivors.60 In particular, trauma-informed practice has had a significant impact in the fields of domestic violence,61 health care, child welfare, law enforcement and judicial administration. As discussed in the next section, trauma-informed practice has also informed the practice of law.

II. THE TRAUMA-INFORMED LAWYER The concepts of trauma-informed practice have begun to have a profound effect on attorneys who routinely work with trauma survivors.62 Particularly for attorneys in practice areas such as domestic vi-

59 SANDRA L. BLOOM & BRIAN FARRAGHER, RESTORING SANCTUARY: A NEW OPER- ATING SYSTEM FOR TRAUMA-INFORMED SYSTEMS OF CARE, 1, 7-9 (2013). 60 For example, one model used to accomplish these goals is the Sanctuary Model, a trauma-informed method for changing organizational culture, created by psychiatrist San- dra Bloom. The Sanctuary Model can be described as a “plan, process, and method for creating trauma-sensitive, democratic, nonviolent cultures that are far better equipped to engage in the innovative treatment planning and implementation that is necessary to adequately respond to the extremely complex and deeply embedded injuries that children, adults, and families have sustained.” Sandra L. Bloom, The Sanctuary Model of Organiza- tional Change for Children’s Residential Treatment, THERAPEUTIC COMMUNITY: THE IN- TERNATIONAL JOURNAL FOR THERAPEUTIC AND SUPPORTIVE ORGANIZATIONS 26(1): 65- 81, 70-71 (2005). The Sanctuary Model proposes seven characteristics that would result in an organization being trauma informed: a culture of nonviolence, which means committing to safety skills and higher goals; a culture of emotional intelligence, which means to teach and model emotional management skills; a culture of social learning, which involves creating an environment that promotes conflict resolution and transformation; a culture of shared governance, which involves encouraging self-control, self-discipline, and healthy authority figures; a culture of open communication; a culture of social responsibility, which involves building healthy relationships and connections; and a culture of growth and change, which requires restoring hope, meaning and purpose by actively working through loss/trauma. Id. at 71. 61 Joshua M. Wilson, Jenny E. Fauci, & Lisa A. Goodman, Bringing trauma-informed practice to domestic violence programs: A qualitative analysis of current approaches, 85(6) AM. J. OF ORTHOPSYCHIATRY 586, 587 (2015). 62 See LISA PILNIK & JESSICA R KENDALL, OFFICE JUVENILE JUSTICE AND DELIN- QUENCY PREVENTION, IDENTIFYING POLYVICTIMIZATION AND TRAUMA AMONG COURT- INVOLVED CHILDREN AND YOUTH: A Checklist and Resource Guide for Attorneys and Other Court-Appointed Advocates (2012), http://www.ojjdp.gov/programs/safestart/Identify ingPolyvictimization.pdf. KAREN REITMAN, ATTORNEYS FOR CHILDREN GUIDE TO INTER- VIEWING CLIENTS: INTEGRATING TRAUMA INFORMED CARE AND SOLUTION FOCUSED STRATEGIES (2011); Barbara Glesner Fines & Cathy Madsen, Caring Too Little, Caring Too Much: Competence and the Family Law Attorney, 75 UMKC L. REV. 965 (2007); Lynda Murdoch, Psychological Consequences of Adopting a Therapeutic Lawyering Ap- proach: Pitfalls and Protecting Strategies, 24 SEATTLE U.L. REV. 483 (2000); Susan Daicoff, \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 13 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 371 olence, immigration, and child welfare, the principles of trauma- informed practice have altered the way legal services are delivered.63 In fact, trauma-informed practice can have relevance to all areas of practice, as clients may present with a trauma history whether central to the subject of the representation or not. Trauma-informed practice can be particularly salient for attorneys because traditionally attorneys are trained to separate emotions from the law in order to competently analyze legal problems.64 By borrowing trauma-informed techniques developed in the therapeutic context, attorneys are learning to provide more effective representation.65 Attorneys can learn how to identify trauma, and to adjust their methods of counseling and representation to incorporate an understanding of their clients’ trauma history. Attorneys can also help clients identify the need for behavioral health intervention, or help clients secure trauma-informed therapeutic services.66 Attorneys can also employ methods of self-care to prevent vicarious traumatization. Systemic implementation of these methods form trauma-informed legal practice. Domestic violence legal centers, immigration legal centers, and other public interest legal services offices have become particularly adept at incorporating these practices into daily legal work. This article posits that clinical law professors can and should incorporate this methodology into law school clinics. The experience of Victoria, the client described at the beginning of this article, is a good example of trauma-informed lawyering at work. First, the law student handling the case was trained to recognize trauma. In other words, the student could recognize that the

Law as a Healing Profession: The “Comprehensive Law Movement”, 6 PEPP. DISP. RESOL. L.J. 1 (2006); MARJORIE SILVER, THE AFFECTIVE ASSISTANCE OF COUNSEL: PRACTICING LAW AS A HEALING PROFESSION (2007); Marjorie Silver, Love, Hate, and Other Emotional Interferences in the Lawyer/Client Relationship, 6 CLIN. L. REV. 259 (1999); Marjorie A. Silver, Supporting Attorneys’ Personal Skills, 78 REV. JUR. U.P.R. 147, 148 (2009); MARY MALEFYT SEIGHMAN, ERIKA SUSSMAN, & OLGA TRUJILLO, REPRESENTING DOMESTIC VI- OLENCE SURVIVORS WHO ARE EXPERIENCING TRAUMA AND OTHER MENTAL HEALTH CHALLENGES: A HANDBOOK FOR ATTORNEYS, available at http://www.nationalcenterdv traumamh.org/publications-products/attorneys-handbook/ (last viewed Dec. 20, 2015). 63 Both authors had the opportunity as legal services attorneys to work in family law practices that trained staff in and applied methods of trauma-informed practice. 64 Parker, supra note 2. R 65 Id. See also AMERICAN BAR ASSOCIATION, ABA POLICY ON TRAUMA-INFORMED ADVOCACY FOR CHILDREN & YOUTH (Feb. 10, 2014), http://www.americanbar.org/content/dam/aba/administrative/child_law/ABA%20Policy%20on%20Trauma-In- formed%20Advocacy.authcheckdam.pdf; Eliza Patten & Talia Kraemer, Practice Recommendations for Trauma-Informed Legal Services (July 2013), available at http://www .americanbar.org/content/dam/aba/administrative/child_law/5C_Patten%20Kraemer_Prac tice%20Recommendations%20for%20Trauma%20Informed%20Legal%20Services.auth checkdam.pdf. 66 See PILNIK & KENDALL, supra note 62. R \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 14 8-MAR-16 10:34

372 CLINICAL LAW REVIEW [Vol. 22:359 physical abuse that Victoria had experienced, as well as the knowledge that her children had been sexually abused, were traumatic experiences which would profoundly affect the attorney-client relationship and the nature of the representation, even though the abuse allegations were not directly pertinent to the case. If the law student not been trained in trauma-informed practice, he might have been more dismissive of the client’s insistence on telling her trauma story. Instead, the law student exhibited patience and affirmation for the client that ultimately enabled the client to develop a trusting relationship with the law student. Similarly, the law student adjusted his approach to counseling the client and preparing the client for court, based upon the law student’s acknowledgement and understanding of the client’s trauma experience. Instead of simply preparing the client for the kinds of testimony and evidence that would be requested, the law student took into account how terrifying it was for the client to go to court against her abusive ex-husband. The student also encouraged the client regarding the importance of continuing in therapy, drawing clear lines between the kind of counseling the law student could provide, and support that could be provided by a therapist. Finally, the law student also had opportunities for self-reflection and sharing through supervision to allow him to process the impact of working with a client who had experienced severe trauma. Rather than waiting until lawyers enter practice to learn these skills, law schools can and should teach trauma-informed lawyering, particularly in the law clinic setting.67 Teaching trauma-informed lawyering in law school clinics bolsters and builds upon existing approaches to clinical pedagogy. Clinical legal education has traditionally emphasized teaching social justice values, client-centered lawyering and the acquisition of practical lawyering skills,68 and teaching trauma-informed lawyering reinforces each of these areas. Fur- ther, trauma-informed lawyering builds upon existing clinical pedagogical literature on therapeutic jurisprudence, empathy and emotional intelligence, and vicarious trauma.69 Law school clinics are particularly well-suited to teach trauma-informed lawyering because

67 See, e.g., Jill Engle, Taming the Tigers: Domestic Violence, Legal Professionalism and Well-Being, 4 TENN. J. RACE, GENDER & SOC. JUST. 1 (2015); Joan Meier, Teaching Law- yering With Heart, forthcoming in VIOLENCE AGAINST WOMEN (2015), available at http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2685926##. 68 See, e.g., Stephen Wizner, Beyond Skills Training, 7 CLIN L. REV. 327, 338 (2001); David Binder and Paul Bergman, Taking Lawyering Skills Training Seriously, 10 CLIN. L. REV. 191 (2003); Katherine Kruse, Fortress in the Sand: The Plural Values of Client-Cen- tered Representation, 12 CLIN. L. REV. 369 (2006). 69 See, e.g., MARJORIE A. SILVER, THE AFFECTIVE ASSISTANCE OF COUNSEL: PRACTIC- ING LAW AS A HEALING PROFESSION (2007). \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 15 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 373 of the focus on reflective practice, and their capacity to teach law students important practice skills to take into their legal careers.

A. Teaching Trauma-Informed Lawyering Fits with the Values of Clinical Pedagogy and into Already Existing Clinical Theoretical Areas Teaching trauma-informed lawyering in law school clinics furthers the value clinical legal education places on teaching social justice principles and the notion of client-centered lawyering.

1. Social Justice Clinical legal education has always had a social justice focus, in its mission to provide much-needed legal services for the indigent, and also in its goals of exposing law students to the lack of legal services for the poor, and to the limits and realities of the legal system. The first clinics were established and developed in the 1920s and 1930s as a way to supplement traditional, doctrinal classes taught in the Langdel- lian case method. However, clinical legal education did not really take hold in law schools until the 1960s and 1970s. A crucial event in the development of clinical pedagogy was the establishment of the Council on Legal Education and Professional Responsibility (CLEPR), by William Pincus, Vice President of the Ford Foundation. The mission of the CLEPR was to provide legal services to the poor, and in order to do so, CLEPR funded several law school clinics, significantly affecting legal education by infusing clinical legal education with a social justice purpose.70 Although the initial mission of law school clinics was to provide access to legal services for low-income clients, as clinical pedagogy developed, clinics developed the added function of exposing students to the realities of the legal system, and in particular its limitations for meeting the goals of indigent individuals.71 Teaching trauma-informed lawyering in clinics reinforces the social justice value of clinical education because it causes students to be exposed to the realities and limits of the legal system.72 Teaching trauma enables students to see, though the experiences of their trauma-affected client, how, for that particular individual, legal doctrines, theories, or the litigation

70 Id. at 338 (“From the beginning of the clinical legal education movement, experien- tial learning and skills-training were seen as the means for achieving the justice goal articulated by William Pincus, not as ends in themselves.”). 71 Lauren Carasik, Justice in the Balance: An Evaluation of One Clinic’s Ability to Har- monize Teaching Practical Skills, Ethics, and Professionalism with a Social Justice Mission, 16 S. CAL. REV. L. & SOC. JUST. 23, 39-40 (2006). 72 See, e.g., Wizner, supra note 68. R \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 16 8-MAR-16 10:34

374 CLINICAL LAW REVIEW [Vol. 22:359 system may or may not work to achieve the client’s stated goals.73 Recognition that the legal system may not always be an effective mechanism of pursuing the client’s goals is particularly relevant when the client has experienced trauma. This statement is particularly true in light of the fact that for a traumatized client, court proceedings may run the risk of causing the client to relive or confront the trauma, and court proceedings themselves may cause further trauma to the client. Additionally, teaching students trauma-informed lawyering, and specifically focusing on the ways in which the current legal system may not be able to meet a client’s goals, encourages students to think critically about the legal system as it affects litigants who have been subject to trauma in their lives.74 By learning about trauma-informed lawyering and thinking critically about the legal system, students will begin to think not only about procedural justice, defined as access to the courts or representation in court, but also about true substantive justice for litigants, a term which “could be perceived to require disas- sembling the existing power structure in order to precipitate a redistri- bution of resources.”75 Thinking critically about the legal system, developing strong professional values, and developing an appreciation for the important role that attorneys play in society are all sub-parts of the larger clinical goal of teaching social justice to law students through their clinical work.76 The importance of teaching trauma-informed lawyering to clinic students to further the social justice goal of clinics is underscored by the literature on therapeutic jurisprudence, which focuses on the extent to which the law enhances or inhibits the wellbeing of those who are affected by it.77 The practice of trauma-informed lawyering can be a natural extension of the teachings of therapeutic jurisprudence. Therapeutic jurisprudence is a lens for viewing litigation78 and concerns itself with the therapeutic and anti-therapeutic goals that flow from legal rules, procedures, and the operation of the legal system.79

73 Id. at 351. 74 Leigh Goodmark, Clinical Cognitive Dissonance: The Values and Goals of Domestic Violence Clinics, the Legal System, and the Students Caught in the Middle, 20 J. OF LAW & POLICY 301, 314 (2012) (quoting Sue Bryant & Maria Arias, Case Study: A Battered Women’s Rights Clinic: Designing a Clinical Program which Encourages a Problem Solving Vision of Lawyering, 42 WASH. U. J. URB. & CONTEMP. L. 207, 212-215 (1992)). 75 Carasik supra note 71, at 45 (citing John O. Calmore, “Chasing the Wind”: Pursuing R Social Justice, Overcoming Legal Mis-Education, and Engaging in Professional Re-Sociali- zation, 37 LOY. L.A. L. REV. 1167, 1175 (2004)). 76 Stephen Wizner, Is Social Justice Still Relevant?, 32 B.C. L. J. & SOC. JUST. 345 (2012) (exploring the social justice mission of law school clinics). 77 See, e.g., Susan L. Brooks, Using Therapeutic Jurisprudence to Build Effective Rela- tionships with Students, Clients, and Communities, 13 CLIN. L. REV. 213 (2006). 78 David B. Wexler, Therapeutic Jurisprudence, 20 TOURO L. REV. 353 (2004). 79 Id. \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 17 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 375

One of the crucial principles is the emphasis on voice and validation for clients. Pursuant to a therapeutic jurisprudence perspective, achieving voice and validation has special significance and importance for survivors of violence.80 Survivors need to be accorded a sense of “voice,” the ability to tell their side of the story, and “validation,” the sense that what they have to say is taken seriously. By acknowledging and honoring the client’s trauma experience, lawyers can help give voice to the client’s perspective. Therapeutic jurisprudence scholars emphasize that these survivors should be treated with dignity and respect, which will diminish the extent to which they feel coerced and gives them a sense of voluntary choice.81 Rather than viewing the client’s trauma experience as a weakness, a therapeutic jurisprudence approach emphasizes the resilience of the client.82 Teaching trauma- informed lawyering to clinic students furthers these therapeutic jurisprudence goals and causes students to think more about the meaning of the broader clinical goal of social justice.83

2. Client–Centered Lawyering Teaching trauma-informed lawyering in clinics also reinforces one of clinical legal education’s central tenets, the importance of client- centered lawyering. Client-centered lawyering focuses on understanding clients’ perspectives, emotions, and values, including the possible effects of prior trauma on a client’s decisions and actions.84 Client- centered lawyering is perhaps the central value in many current law school clinics, particularly in clinics where clients are individual litigants. The goals of client-centered lawyering focus on maintaining respect for a client’s decision-making authority within the lawyer-client relationship. In the client-centered lawyering paradigm, the lawyer should remain neutral as to the goals of the representation.85 Unlike

80 Carolyn S. Salisbury, From Violence and Victimization to Voice and Validation: In- corporating Therapeutic Jurisprudence in A Children’s Law Clinic, 17 ST. THOMAS L. REV. 623, 654-55 (2005) 81 Bruce J. Winick, Applying the Law Therapeutically in Domestic Violence Cases, 69 UMKC L. REV. 33, 63 (2000). 82 Pilar Hernandez & David Gangsei, Vicarious Resilience: A New Concept in Work with Those Who Survive Trauma, 46 FAMILY PROCESS 229 (2007). 83 Closely related to therapeutic jurisprudence is the literature on restorative justice, which focuses on having all of the individuals who have been affected by a particular act come together and agree on how to repair the harm. According to restorative justice principles, the focus of the process is on healing, rather than finding a way to hurt the offender in a way that would be proportional to the victim’s hurt. See John Brathwaite, A Future Where Punishment is Marginalized: Realistic or Utopian? 46 UCLA L. REV. 1727, 1743 (1999). 84 Kruse, supra note 68, at 377 (describing the cornerstones of client-centered R lawyering). 85 Id. at 376. \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 18 8-MAR-16 10:34

376 CLINICAL LAW REVIEW [Vol. 22:359 traditional doctrinal law school classes which focus on appellate court decisions, a clinic with a client-centered philosophy helps the client solve their identified problems, through either legal or non-legal means. The four central tenets of client-centered lawyering can be summarized as follows: 1) it draws attention to the critical importance of non-legal aspects of a client’s situation; 2) it cabins the lawyer’s role in the representation within limitations set by a sharply circumscribed view of the lawyer’s professional expertise; 3) it insists on the primacy of client decision-making; and 4) it places a high value on lawyers’ understanding their clients’ perspectives, emotions, and values.86 A lawyer’s principal role in a client-centered lawyering model is to help the client solve a problem, not simply to identify and apply legal rules.87 Teaching trauma-informed lawyering to clinic students in law clinics reinforces all of the main tenets of client-centered lawyering. Teaching trauma-informed practice as part of client-centered lawyering improves the client’s experience of representation, by encouraging students to consider the non-legal aspects of a client’s situation, and also places a high value on the law student’s understanding of a client’s perspectives, emotions, and values. Teaching about the possible effects of trauma on clients encourages students to look at the client outside of the narrow context of litigation, and to consider the other effects of her life experiences. Additionally, trauma-informed lawyering, with its emphasis on the effects of prior trauma, persuades students to look at what the client may be seeking from the representation, and to consider whether the litigation process will achieve that goal, or whether that goal is best achieved by non-legal methods. The student must take into account the effect of the trauma on the client and the effect on the client’s current decision-making, even though that decision process may be different from the process that the student is using to make a decision as a legal advocate. The theory behind client-centered law practice is based on the influence of other social sciences on law, particularly psychology, in which empathy is considered a useful skill for supporting clients.88 Law students will be better able to incorporate empathy into their interactions with clients if they are trained in trauma. The literature on emotional intelligence and the literature on the clinical pedagogy of teaching empathy focus on the legitimacy of emotions and their

86 Id. at 377. 87 Id. at 376-77 (quoting Binder’s textbook). 88 Emily Gould, The Empathy Debate: The Role of Empathy in Law, Mediation, and the New Professionalism, 36-FALL VT. B.J. 23, 24 (2010). See also Sarah Buhler, Painful Injus- tices: Encountering Social Suffering in Clinical Legal Education, 19 CLIN. L. REV. 405 (2013). \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 19 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 377 relevance to our actions and decisions, and also on the need and manner in which the clinical supervisor facilitates a process through which law students interpret their emotional experiences as advocates, a process which will positively affect the representation.89 Trauma-informed clinic students will better empathize with their clients. Empathy can be a key part of the information-gathering function of a client interview and client counseling.90 Empathy encompasses several different phenomena: feeling the emotions of another; understanding another’s situation or experience; and taking actions based on another’s situation.91 Similarly, the literature regarding teaching empathy to law students in a clinical context explores the concept of “identification.” Identification can be defined as taking on the attitudes, behaviors, and perspectives of others.92 Identification and empathy allow an attorney to “enter” into the emotional state of the client,93 which provides the attorney with a far more complex understanding of the client and the client’s legal needs. With clients in particularly difficult situations, such as clients who have experienced trauma or torture, a student may become overwhelmed by the experiences of suffering and therefore fail to identify and empathize with the client.94 Teaching law students to identify trauma and its effects on clients will aid in identification with a client in a situation where identification and empathy might otherwise not be possible, and will enable the student to achieve a greater empathy for and understanding of the client’s perspectives and needs. Trauma-informed clinic students will achieve greater empathy with a client, and also will use that empathy to adjust the attorney-client relationship or to adjust the litigation strategy. Teaching trauma-informed lawyering in law clinics will also encourage students to circumscribe their view of their own expertise, emotional understanding and role as law students in the representation, and will encourage students to focus on the primacy of client decision-making as emphasized in the client-centered lawyering model.95 In the client-centered lawyering model, the lawyer and the client work together as problem-solvers, and the client is able to

89 See, e.g., Laurel E. Fletcher & Harvey M. Weinstein, When Students Lose Perspec- tive: Clinical Supervision and the Management of Empathy, 9 CLIN. L. REV. 135 (2002); Gould, supra note 88; see also, Silver, supra note 69 at 5. R 90 Fletcher & Weinstein, supra note 89. R 91 John E. Montgomery, Incorporating Emotional Intelligence Concepts into Legal Edu- cation: Strengthening the Professionalism of Law Students, 39 U. TOL. L. REV. 323, 336-37 (2008). 92 Id. 93 Id. at 142. 94 Fletcher & Weinstein, supra note 89, at 143. R 95 Kruse, supra note 68, at 377. R \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 20 8-MAR-16 10:34

378 CLINICAL LAW REVIEW [Vol. 22:359 choose what s/he wants from the lawyer and the legal system.96 A lawyer working in a client-centered model should listen to all of the client’s concerns, not just the facts which are deemed legally relevant.97

B. Acquisition of Practical Lawyering Skills: Teaching Trauma- Informed Lawyering Makes Students Better Advocates Another central value in clinical pedagogy is that students should acquire practical lawyering skills, by gaining experience in practice and by participating in the lawyer/client relationship.98 Students are generally more motivated to learn because they are given a tremendous amount of responsibility over the case of a real-life individual, and this responsibility leads to greater identification with the client and other individuals who are similarly situated.99 Clinics are particularly well-suited for teaching trauma-informed lawyering because students are readily able to put into practice with their clients the trauma-informed lawyering goals of identifying trauma, adjusting the attorney-client relationship, adjusting the litigation strategy, and preventing vicarious trauma. Clinics are also ideally suited to teaching trauma-informed lawyering to students because clinics are one of the primary vehicles through which law students learn the practical aspects of professional responsibility. The Model Rules of Professional Conduct summarizes the duty of competent representation as follows: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation rea- sonably necessary for the representation.”100 When representing clients who have survived trauma in the past, the duty of competent representation requires not only legal knowledge and preparation, but also requires a thorough understanding of the ways in which trauma may present in clients, and of the ways prior trauma may affect the attorney-client relationship and the litigation process. Competent representation may also mean acknowledging the limits of the attorney’s role, and using mental health professionals as supports when necessary. Teaching trauma-informed lawyering will cause students to become better, more effective advocates who are able to fulfill the duty

96 Jane Stoever, Transforming Domestic Violence Representation, 101 KY. L.J. 483, 496 (2012-2013). 97 Id. at 498. 98 See, e.g., David Binder & Paul Bergman, supra note 68, at 194-95, 198. R 99 See Carolyn Grose, Beyond Skills Training, Revisited: The Clinical Education Spiral, 19 CLIN. L. REV. 489, 511 (2013) (Grose refers to a student’s participation in the lawyer- client relationship as “the heart of clinical pedagogy.”). 100 MODEL RULES OF PROF’L CONDUCT §1.1 (2015). \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 21 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 379 of competent representation. Through learning about trauma-informed lawyering, law students will become better advocates because they will gain better interviewing skills; more effectively build trust with their clients; and more effectively tackle problems that clients face. Students will also be better prepared for hearings, and better able to prepare their clients for hearings.101 Students who interview clients may be better able to identify signs of such trauma such as: clients experiencing difficulty telling their story in a linear manner; clients describing violent or upsetting events in a flat, detached matter; clients seeming disassociated or emotionally absent during interviews; and clients not remembering key details of abuse.102 Here is another example of how law students are able to implement trauma-informed practice to better represent their clients:

Jane103 came to the clinic seeking representation for her two family law cases. She had filed a Protection From Abuse (PFA) petition against her boyfriend, Tom, because he had become physically abusive a few months before, and on the last night they were together, beat her and tried to run her over with his car. Jane had a daughter, Anne. When Anne’s father, Mark learned of the abuse by Tom, he didn’t give Anne back to Jane for a month after a weekend visit. Jane had to involve the police to get Anne back. Mark filed a custody modification petition asking the court to give him primary physical custody of Anne. Jane filed a contempt of custody petition against him for keeping Anne away from her. Jane missed the first two appointments and arrived two hours late for her third appointment with the law student assigned to her case. During her meeting, which was to begin to prepare for the PFA case against Tom, Jane only wanted to talk about Anne and whether she might lose custody. She became very emotional when talking about the custody case. Jane was angry with Mark for keeping Anne for so long and said that she hoped he would be punished by the Judge for what he did. Jane did not remember when the abuse by Tom began, when he tried to run her over, or when she had gone to the police. She also did not remember when Mark had kept Anne from a month, or the date when she was able to get Anne back.

101 Parker, supra note 2. R 102 See NAT’L CENTER ON DOMESTIC VIOLENCE, TRAUMA & MENTAL HEALTH, SUP- PORTING SURVIVORS IN CONTESTED CUSTODY CASES: TRAUMA-INFORMED STRATEGIES FOR BUILDING ON PARENTING STRENGTHS WHERE MENTAL HEALTH IS A FACTOR (March 2014), available at http://www.nationalcenterdvtraumamh.org/wp-content/uploads/2014/01/ Supporting-Survivors-in-Custody-Cases-April-7-FINAL-v3.pdf. 103 This case description is based on the experience of a client represented by Professor Haldar’s clinic. Names and identifying information have been changed. \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 22 8-MAR-16 10:34

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Rather than thinking a client is difficult or uncooperative, a student who has been taught trauma-informed lawyering will be able to recognize the preceding characteristics as signs of trauma, and will develop the skills to counteract the specific trauma symptoms which arise during client interviews.104 These skills include developing mechanisms to: interview and prepare clients’ cases with minimal re- traumatization; work with emotional clients more effectively by validating their feelings; focus or re-focus clients who are avoiding talking about a traumatic experience; help clients remember significant details; anticipate and handle clients who are late to an appointment or who miss the appointment entirely; define the role of the legal advocate, as opposed to a therapist or social worker; and build trust with the client. In short, teaching trauma-informed lawyering will allow students to specifically tailor their interviewing and case preparation to the client’s individual circumstances, which include past trauma.

During the first meeting with Jane, the law student recalled the guest lecture by an area psychologist regarding trauma and recognized the indicators of trauma in Jane’s actions. He told her that both the abuse by Tom and having Anne taken away from her must have been very difficult for her. He told her that during that first meeting, they would talk about what she most wanted to discuss, and then he and Jane together planned a timeline of appointments to get ready for both the PFA hearing and the custody hearing. The law student explained the purpose of each hearing and how the Judge would make a decision in each case. The law student let Jane know what documents she needed to bring to each meeting. Additionally, the law student was able to use the police report filed when Jane got Anne back to determine when Mark had taken her and returned her. He also looked at Tom’s date of arrest and Jane’s PFA petition to get a rough timeframe of when the abuse happened, and Jane was able to supplement that information. During a later meeting to prepare for the custody hearing, Jane revealed that as part of the abuse, Tom had forced her to join him in his drug use. Substance abuse was particularly emotionally difficult for Jane to discuss, because she and Anne’s father Mark both had severe addiction issues when they were together, and they both stopped using when Jane became pregnant with Anne. Because the law student had this important bit of information, he was able to inform Jane that it was very common for custody judges to ask litigants to take drug tests, particularly if there is a history of drug abuse. He also discussed with her the importance of continuing to attend her substance abuse meetings,

104 Parker, supra note 2, at 182. R \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 23 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 381 which served as a support for her in staying drug-free. The law student went over Jane’s direct examination with her several times before each hearing. He stressed the importance of being on time for the hearing, told her exactly who would be in the courtroom, and what each party might say. He emphasized that although she felt very emotional about the events, it was important to remember to answer only the questions asked of her in court. The law student reminded her the day before each time she had to be in court, and would meet her just inside the entrance to the courthouse. The custody judge decided not to modify the order in Jane’s custody case with Mark, and the Protection From Abuse judge granted Jane a final protection order.

The enhanced interview skills that students learn when taught trauma-informed lawyering can help to nurture a trusting relationship between the client and the student lawyer. The law student and the client can then analyze risks, review and develop safety plans, and devise legal strategies together. Building this kind of a trusting relationship may help avoid a situation in which a client does not reveal crucial information. In addition to hearings, building a trusting relationship between a client and a law student recognizes the fact that advocating effectively for a client may not always involve an adversarial, court-centered litigation strategy. In fact, any form of litigation may not be the best way for the client to achieve her goals. Encourag- ing a client to speak as freely as possible about the past trauma, as well as her current experiences, can lead both parties to exchange important information so that they can most productively discuss the next steps to take in a client’s case. Students will also be able to more effectively prepare for hearings if they are trained in trauma-informed lawyering. Once students understand which types of events can trigger the trauma of a client, they can work to lessen that potential.105 Additionally, teaching trauma-informed lawyering will also cause students to more effectively tackle clients’ trauma-related problems. For example, in family law cases, two of the most significant problems with the domestic violence survivor client population are mental health issues, often caused or exacerbated by the trauma and more recent trauma-related triggers, and substance abuse, which may also be cause or heightened by a traumatic situation. A crucial aspect of trauma-informed legal practice is recognizing the limits of lawyers’ professional role, and knowing when to help the client seek behavioral health supports. Particularly for law students who are in the midst of

105 See Parker, supra note 2, at 177-178 (discussing the importance of credible testimony R in political asylum cases, where a traumatized client may have difficult expressing emotion). \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 24 8-MAR-16 10:34

382 CLINICAL LAW REVIEW [Vol. 22:359 cultivating their professional identities, and are still developing their competency at lawyering skills, it is important to underscore their professional boundaries. An additional important aspect of clinical pedagogy is the importance of teaching students how to integrate being lawyers with the rest of their lives as they move forward as practicing attorneys. Recent research indicates that attorneys exhibited a higher level of vicarious traumatization compared to mental health professionals, at least in part because they felt that they had not received systemic education regarding the effects of trauma in their clients and themselves.106 If explicitly taught trauma-informed lawyering, law clinic students will be more effectively prepared to handle their own feelings upon hearing their clients’ traumatic stories, and will as a result suffer less from vicarious trauma and burnout.107 Teaching trauma-informed lawyering in clinics creates foundations for students for positive self-care as they pursue and develop their legal careers.

III. THE PEDAGOGY OF TRAUMA-INFORMED LAWYERING: HOW TO TEACH TRAUMA-INFORMED LAWYERING IN LAW CLINICS While acknowledging that teaching trauma-informed practice is an important goal, clinical law professors may struggle with how to integrate it into their clinics. This section will first describe four key hallmarks of trauma-informed lawyering: (1) identifying trauma; (2) adjusting the attorney-client relationship; (3) adapting litigation strategy; and (4) preventing vicarious trauma. The following section will give concrete examples of how to teach these hallmarks in law clinics.

A. The Hallmarks of Trauma-Informed Lawyering The authors have identified four teaching goals that we believe are the key hallmarks of trauma-informed lawyering:

Identifying Trauma. Simply learning to identify trauma can go a long way in making an attorney more effective. Arguably, an attorney’s ability to communicate with clients and develop a relationship of trust with clients is critical to attorney competence.108 An attorney need not be a mental health expert to recognize that what the client is describing, or behavior the client in exhibiting, is indicative of trauma. Unless the law student has a previous professional background in

106 See, e.g., Andrew P. Levin & Scott Greisberg, Vicarious Trauma in Attorneys, 24 PACE L. REV. 245, 252 (2003). 107 Id. at 251-252. 108 Fines & Madsen, supra note 62. R \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 25 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 383 trauma-related practice, law students tend not to be particularly aware of how trauma is defined or presents. A client who has experienced trauma needs to be able to feel safe in the attorney-client relationship, and an attorney who can be both affirming and empathetic to the client will help create that feeling of safety.

Adjusting Attorney-Client Relationship. Once an attorney has recognized that a client has experience with trauma, the attorney can adjust the attorney-client relationship accordingly. Trauma may affect the attorney’s ability to get the whole story, and law students need training in these techniques. Because trauma manifests differently in different people, the attorney should be versed in a variety of strategies to work with the client. For example, the client may be very withdrawn, and the attorney will need to help the client gain a sense of trust and safety in order to get necessary information to prepare the case.109 Another client might be highly emotional, flooding the attorney with a lot of information; the attorney will need to employ strategies to focus the client on key facts pertinent to the representation.110 Another client may be angry or suspicious, and the attorney will need to put continued focus on transparency and trust.111 Cultivating these strategies will make the attorney more effective in developing a relationship with clients and handling their cases.

Adapting Litigation Strategy. The client’s trauma experience may also change the attorney’s litigation strategy in a variety of ways. Court can be overwhelming or frightening to many clients, but a client with a trauma history may have a particularly difficult time coping.112 Law students need to be introduced to these topics to effectively prepare their clients. To the extent the client needs to testify about the traumatic events, the client may have difficulty telling the story consistently and credibly. The attorney can help the client by making the situation as predictable as possible by de-sensitizing the client by re- hearsing.113 The attorney may make certain adaptations for the client, like making a plan to take a break if the testimony becomes too trying, or enlisting the support of a mental health provider or other support person in preparing for or attending court.114 Finally, the

109 Judy I. Eidelson, Representing Traumatized Clients, Phila. Bar Assoc. Family Law Section, Nov. 4, 2013. 110 Id. 111 Id. 112 See generally Ann E. Freedman, Fact-Finding in Civil Domestic Violence Cases: Sec- ondary Traumatic Stress & the Need for Compassionate Witnesses, 11 AM. U.J. GENDER SOC. POL’Y & L. 567 (2003). 113 Eidelson, supra note 109, at slide 13. R 114 Id. \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 26 8-MAR-16 10:34

384 CLINICAL LAW REVIEW [Vol. 22:359 attorney may need to give extra thought to how the client will be able to testify about the traumatic experiences in court.115 By employing these strategies, the attorney may make court more palatable for the client and simultaneously more successfully advocate for the client’s position.

Preventing Vicarious Trauma. Attorneys working with clients who have experienced severe trauma can also take preventive measures to avoid vicarious trauma. The risks of vicarious trauma for attorneys working with survivors of trauma may be even higher than those in other helping professions, because those in the legal profession tend to have higher caseloads,116 and to not be trained in the dynamics of trauma.117 Particularly in a high volume practice, with limited resources, attorneys are at a high risk of developing clinically significant symptoms of vicarious trauma.118 Although it is unlikely that law students in a clinic practice setting will develop vicarious trauma, it is important that they become aware of the risks and prevention measures at the start of their practice experience. One of the most important preventive measures for attorneys is to diversify and manage case load, so that the attorney has the opportunity to work with trauma survivors as well as clients who have not experienced severe trauma, and so the attorney does not become overwhelmed with too many cases.119 Further, attorneys can create a workplace culture that acknowledges the potential for vicarious trauma. This can include creating spaces for supervision and peer support, and encouraging open communication about the effect of the work.120

B. Incorporating the Hallmarks of Trauma-Informed Lawyering as Teaching Goals This next section will give concrete examples of how to achieve the teaching goals of (1) identifying trauma; (2) adjusting the attorney-client relationship; (3) adapting litigation strategy; and (4) preventing vicarious trauma. Consider the examples of the clients Victoria and Jane, from the perspective of the clinical professor. The law students who worked

115 Id. 116 Levin, supra note 106. R 117 Fines & Madsen, supra note 62, at 992. See also Yael Fischman, Secondary trauma in R the legal professions, a clinical perspective, 18 TORTURE 107 (2008). 118 Andrew P. Levin et al., Secondary Traumatic Stress in Attorneys and their Adminis- trative Support Staff Working With Trauma- Exposed Clients, 199 J. OF NERVOUS & MENTAL DISEASE 946, 953 (2011). 119 Fines & Madsen, supra note 62, at 993. R 120 Id. at 994. \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 27 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 385 with Victoria and Jane had been introduced to the concepts of trauma- informed practice in clinical seminar. The clinical professor had informed the students at orientation that learning to identify trauma, understand the effect of trauma on clients’ behavior, and alter the attorney-client relationship and litigation strategy accordingly, were part of the teaching goals for the clinic. The clinical professor brought in an outside speaker to talk to the class about the dynamics of intimate partner violence, and also brought in a psychologist to discuss the impact of trauma on the brain, and how it may manifest. The clinical professor reinforced these lessons through reflection exercises such as case rounds, journaling, supervision and evaluation. And finally, the clinical professor introduced the concept of vicarious trauma, and educated the law students on how to prevent it, by focusing on creating confidential space to talk about the effect the work and clients had on the students, as well as underscoring the importance of good self care. By incorporating these teaching methods into the clinic, the professor created an environment where clients like Victoria and Jane can feel supported and empowered through the experience of representation by the clinic, and the law students are prepared to be excellent advocates on their behalf.

1. Identifying Trauma To teach law students to identify trauma, the students must learn the definition of trauma and why it is relevant to the practice area in the clinic. Law students may incorrectly assume that in teaching about trauma, we are asking them to step outside the bounds of their role as attorney; in contrast, the purpose is to enhance their capacity to build an effective attorney-client relationship.121 In the context of family law clinics, whether the clinic has a specific domestic violence focus or not, identifying trauma can be introduced by contextualizing what we know about the population that relies on family courts to resolve disputes, specifically that there is a high prevalence of family violence.122 In other clinical settings, there may be other common types of trauma with which clients present; for example in an immigration clinic, there may be high rates of clients who witnessed family members or other individuals be harmed in tragic ways. In a child or family advocacy clinic, there may be many clients who have experienced severe child abuse or neglect.

121 Parker, supra note 2, at 169. R 122 Janet Johnson et al., supra note 22. The link between child custody decisions and R domestic violence is one that has been acknowledged by state legislatures and courts. See Naomi R. Cahn, Civil Images of Battered Women: The Impact of Domestic Violence on Child Custody Decisions, 44 VAND. L. REV. 1041, 1062 (1991). \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 28 8-MAR-16 10:34

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It is important to help the students shape what is meant when we refer to trauma. The word “trauma” is tossed around a lot (“My favorite tv show is on summer hiatus and I am SO traumatized!”; “My child was lost in the department store for 10 minutes and I was so traumatized!”). Although trauma is subjective to a specific individual’s ability to cope, not every bad experience is a traumatic one. And not every client who has experienced trauma carries a diagnosis of posttraumatic stress disorder. Further, in teaching about trauma, there is a risk that students will essentialize clients’ experiences, assuming they all share common histories or characteristics. By focusing on the particular commonalities and needs of the population served by the clinic, the professor can guide students toward being alert to relevant information in the client’s history and/or experience which may have an effect on the nature of the representation. To teach students to identify trauma, the professor may elect to bring in a psychiatrist or psychologist to class, who can speak about how trauma presents and how it affects the brain. With some research and preparation, the clinical professor may also elect to teach this information on her own. The outside speaker or the professor can also focus on some of the common ways trauma presents in the population served by the clinic, and suggest or model strategies for working with these types of clients. For some clients the content of the representation will be specific to the trauma experience, such as representation in a protection order matter regarding abuse perpetrated by the opposing party, or representation in a custody matter about child abuse perpetrated by the opposing party. There are also times where the student may have to deduce that a backdrop of trauma is affecting the client’s demeanor or ability to relate to the student, such as representation in a child welfare case concerning allegations of mother’s mental health issues. With a basic understanding of how trauma may present, the student can develop greater sensitivity toward the client, and be alert to (sometimes subtle) indications that the client has experienced trauma. Frequently, students have preconceived notions about how a survivor will present; the student expects the client to be forthcoming and compliant in relaying her story. An effective way to teach law students to identify trauma is to incorporate this learning goal into exercises focused on learning interviewing skills. For example toward the beginning of the semester, the authors utilize Laurie Shanks’ storytelling exercise to teach students about how difficult it sometimes is for clients to share intimate details of their lives.123 In this exercise, students

123 Laurie Shanks, Whose Story is it, Anyway? – Guiding Students to Client-Centered Interviewing Through Storytelling, 14 CLIN. L. REV. 509, 516-517 (2008). \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 29 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 387 are paired in class and then asked to tell a story to each other about something that changed their life; the other student is then charged with telling her partner’s story to the rest of the class, and a discussion ensues about the challenges and obstacles of telling someone else’s narrative.124 Although not specifically a trauma-related exercise, it can create a forum to underscore some of the barriers to effective fact gathering with clients who have experienced trauma. As Psychologist Judy Eidelson has hypothesized, some of these internal barriers for the interviewer may include fear of what we might have to hear, fear of not knowing how to respond, fear of losing composure, our own moral judgments, and idealization of the trauma survivor followed by disillusionment.125 The law student should ensure that her representation creates no additional harm.126 Clients’ trauma history may affect representation by making it difficult to get the whole story (because of avoidance) and to get a consistent story (traumatic memories get stored in the brain in disconnected ways).127 In addition to disruptions to the client’s memory of the relevant events, the client may experience shame, hopelessness, traumatic flashbacks and/or distrust in being asked about the traumatic events.128 Because trauma presents differently, it is helpful to make students aware that it is quite common for a trauma survivor to present as withdrawn and with flat emotion, or to flood with an overload of information, or to be angry and/or suspicious.129 Through hypotheticals or role plays, the professor can brainstorm with the students effective strategies for working with each type of client. For example, with the withdrawn client, the client may feel more in control of the interview if the law student affirms how difficult it is to share the information.130 With the flooding client, it can be valuable to be upfront and transparent about the goals and focus of the interview.131 With the angry or suspicious client, it can be beneficial to validate the client’s frustration while not getting defensive.132 All of the above teaching strategies can be reinforced throughout the students’ work in the clinic through supervision and reflection. The student may need help or feedback around why a particular client interview did not go as smoothly as planned, or assistance with

124 Id. at 518-526. 125 Eidelson, supra note 109. R 126 SEIGHMAN ET AL., supra note 63, at 5., at 5. 127 Eidelson, supra note 109, at slide 3. R 128 Id. 129 Id. at slides 6-11. 130 Id. at slide 7. 131 Id. at slide 9. 132 Id. at slide 10. \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 30 8-MAR-16 10:34

388 CLINICAL LAW REVIEW [Vol. 22:359 strategizing how to most effectively handle a particularly challenging client interview. Not every student will immediately draw the connection between the lessons learned about trauma in class and a client’s particular behavior. For example, the student may feel frustrated by a client’s repeated cancellation of appointments, or unwillingness to talk about key events in her history. By introducing trauma-informed practice early, the clinical professor can redirect the student to these lessons. In the authors’ clinics, we frequently revisit how a client’s trauma history may be affecting the law student-client relationship through supervision and case rounds.

2. Adjusting the Attorney Client Relationship Once students learn to identify trauma in their clients, the next step is to enable the student to make adjustments to their strategy for building an attorney-client relationship. As mentioned above, an outside speaker or the clinical professor can teach students about how trauma or indicators of trauma may manifest in clients. In the family law context, both Professor Katz and Professor Haldar bring in outside speakers from a local domestic violence agency, who can talk about the dynamics of domestic violence. These speakers introduce the students to basic concepts like the idea that domestic violence is about power and control,133 and that there is a cycle of abuse.134 Without this backdrop, it can be hard for students to understand why their clients behave in certain ways: Why did she decide to drop this protection order?135 Why didn’t she show up to court, I thought this case was important to her!136 Once students are informed about the effects their clients’ trauma experience may have on the client’s behavior, the clinical professor can help the students develop strategies for working with these clients. Such strategies can be integrated into lessons on client counseling through hypotheticals or simulations, as well as addressed through supervision and reflection. Because trauma presents differently in different clients, students need to be versed in a wide array of strategies. Students should learn that working with clients with trauma experience requires investing extra time in the attorney-client relationship, perhaps scheduling more in-person meetings than might otherwise be usual practice, and being particularly patient and consistent with the

133 See generally LENORE E. WALKER, THE BATTERED WOMAN (1979). 134 Id. 135 James C. Roberts, Loreen Wolfer & Marie Mele, Why Victims of Intimate Partner Violence Withdraw Protection Orders, 23 J. FAM. VIOL. 369 (2008). 136 Avoidance or withdrawal are common ways for clients’ trauma to manifest. See Eidelson, supra note 109, at slides 6-7. R \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 31 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 389 client. Student can also help the client identify and acknowledge how the trauma experience impacts their interactions with their law student, the opposing party or the judge. Transparently engaging the client in developing solutions can be empowering to the client and lays a strong foundation for a meaningful attorney-client relationship.137 The student can also become versed in contemplating non-legal solutions with the client, such as referrals to trauma-informed therapy, connections to other social services or supports, or reliance on trusted family or friends. Clinical professors should be aware that students, just like clients, may also present with their own trauma history. Working with particular clients may present triggers for certain students. While this will be addressed further in the discussion of vicarious trauma in Section III. B. 4., infra, the clinical professor can help students be mindful that the experience of listening to someone else’s trauma history is not neutral. The students can be encouraged to be reflective with regard to their own reactions and responses to clients.

3. Adapting Litigation Strategy Preparing a client with trauma experience for court requires par- ticularized strategies which law students can learn through a clinic. The experience of going to court in and of itself can be re-traumatizing, particularly because the trier of fact may not know the client has a trauma history, or may not be aware of how trauma presents. To the extent that the client may have to testify about the traumatic events, many triers of fact might assume that if something really horri- ble happened that the client will be able to testify about it with great specificity.138 In contrast, clients with trauma experience can make terrible witnesses for a variety of reasons.139 First, because the brain stores memories in mismatched ways, the client may be unable to present a linear narrative.140 Second, the client may not remember key elements of what occurred; while this may make a trier of fact question client’s credibility, it is a normal trauma reaction.141 Third, a client’s emotions or lack thereof may unnerve or misguide the trier of

137 SEIGHMAN ET AL., supra note 63, at 7. 138 Joan Meier, Symposium: Domestic Violence, Child Custody & Child Protection: Un- derstanding Judicial Resistance And Imagining Solutions, 11 AM. U. J. GENDER SOC. POL’Y 657, 662 (2003) (“The failure of many courts to apply new understandings of domestic violence in cases concerning custody actually contrasts sharply with the demonstrable increases over the past ten years in judicial awareness and sensitivity to domestic violence in more standard ‘domestic violence’ cases, such as civil protection orders or criminal prosecutions.”). 139 Parker, supra note 2, at 171. R 140 Eidelson, supra note 109. R 141 Parker, supra note 2, at 171. R \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 32 8-MAR-16 10:34

390 CLINICAL LAW REVIEW [Vol. 22:359 fact: the client may appear with a flat affect; or the client may want to tell the full story in a rush of hysterical emotion; or the client may appear angry (thus making her seem like the aggressor) or the client may simply disassociate and not be able to articulate what happened at all.142 Extra time spent on preparation can go a long way in making the litigation process palatable for clients with trauma experience. The student can spend extra time preparing the client for what to expect in the courtroom, reviewing details as mundane as where everyone will sit or stand, to what types of questions will be asked. The more the experience of court can become normalized and predictable for a client, the more likely they will be able to cope. In addition, because constantly re-telling the story of the traumatic events can be re-traumatizing for the client, dividing the preparation into shorter sessions can help minimize the risk of re-traumatization.143 Students can utilize extra preparation time to work on mental safety-planning with the client. For example, the student can work with the client around how they will handle being asked difficult questions, or where to focus their energy when the opposing party is talking. The student and client can set up a safety signal, whereby the student can ask for a break in the testimony should it become too overwhelming for the client. Allowing the client to be an active par- ticipant in planning for how to handle going to court can help empower the client and normalize the experience of the court hearing. The student can spend extra time preparing the client for the worst possible case outcomes (e.g. The worst thing that may happen is that the judge grants his petition for shared custody). Being able to visualize the possible results will help normalize the experience of court. Finally, although difficult, students can seek to educate the trier of fact about dynamics of trauma through the litigation process. Some resources exist for training judges in a more systemic manner.144

4. Preventing Vicarious Trauma Perhaps the most crucial aspect of the pedagogy of teaching trauma- informed lawyering in law clinics, and certainly the aspect that students have the greatest need to carry forward with them in their legal practice, is the awareness of vicarious trauma and the need

142 Eidelson, supra note 109. One client in Professor Katz’s clinic, after repeated ques- R tioning in court about the history of intimate partner violence between the parties simply blurted out “he has a hand problem!” (meaning ‘he puts his hands on me’). 143 Parker, supra note 2, at 176. R 144 SAMSHA, supra note 8. R \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 33 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 391 to take preventive measures against its effects. While students may not be likely to experience vicarious trauma in their clinical work, it is important that they learn about the risks, and are able to implement preventive measures starting with their clinical legal work. Preventive measures can be implemented in a number of ways. First, in the authors’ clinical courses, the possibility and effects of vicarious trauma are explicitly taught and the authors are each transparent with their students about the preventive measures that are being implemented. When new students begin, as mentioned previously, a psychologist speaks with the students about the effects of trauma on clients, but also discusses the issue of vicarious trauma and how to identify vicarious trauma symptoms and also to protect oneself against vicarious trauma. Students read material about the effects of trauma and the effects of vicarious trauma on professionals who work with trauma survivors, and discuss the effects of vicarious trauma in class.145 It is also possible and crucial to consider vicarious trauma when structuring clinical courses. One of the best ways to prevent vicarious trauma is balance and limit caseloads.146 For example, cases should be distributed among students such that the cases involving clients with significant trauma histories are evenly distributed among the students. In Professor Haldar’s clinic, where students handle both Protection From Abuse and custody cases, students are assigned both kinds of cases to increase the chance that each student will have at least a few clients who have not recently experienced traumatic events. Thus, every effort is made to ensure that no one student will have only clients who have recent trauma histories, and this balance is a significant factor to protect against vicarious traumatization. Another recognized prevention technique is to create safe space for practitioners to talk about the effects of working with their clients with trauma histories on a regular basis.147 In a law school clinic, this can be accomplished through supervision and reflection, and through effective use of case rounds. Both Professor Haldar and Professor Katz ask students to reflect upon vicarious trauma-related topics specifically in their journal assignments. The journal entries call for students to think specifically about whether and how they are being

145 In addition to journal assignments, sample assignments might include role playing a client interview session when a client discusses a traumatic past event or reading articles about the effects of vicarious trauma in the therapy context and discussing in class the similarities and differences in the legal context. 146 T. Bober and C.D. Regehr, Strategies for Reducing Secondary or Vicarious Trauma: Do They Work?, 6 BRIEF TREATMENT AND CRISIS INTERVENTION 1-9, 7 available at http:// dx.doi.org/10.1093/brief-treatment/mhj001 (last viewed Dec. 20, 2015). 147 Barbara Dane, Child Welfare Workers: An Innovative Approach for Interacting with Secondary Trauma, 36 (1) J. OF SOC. WORK EDUC., 27, 34-35 (2000). \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 34 8-MAR-16 10:34

392 CLINICAL LAW REVIEW [Vol. 22:359 affected by their clients’ trauma histories, and whether they are experiencing vicarious trauma symptoms. In clinics, students should be taught explicit strategies to prevent vicarious trauma that they can carry forward with them into their legal practices. One very effective way to teach students about preventing vicarious trauma is to encourage good self-care and model good self- care. Self-care, in the sense of setting appropriate boundaries between the advocate and the client, is recognized to be a protective factor against vicarious trauma.148 Sandra Bloom divides self-care into several components: personal physical; personal psychological; personal social; personal moral; professional; organizational/work setting; societal.149 In the beginning of the semester, along with a discussion of vicarious trauma, clinical professors may choose to encourage their students to develop their own self-care plans, incorporating all of the different components of self-care. In case rounds and supervision, students and the professor can refer back to these self-care plans as needed, especially when working with clients with trauma histories. Clinical professors may also find it helpful to themselves model good self-care techniques for students. For instance, professors can be transparent about making sure they themselves get to exercise regularly, or about using mental health counseling if needed. Specific discussion of mental health services, and of their availability, may also help students to avoid the effects of vicarious trauma, as knowledge of mental health services is a protective factor.150 Although not strictly vicarious trauma, it is also important to note here that students often come to our clinics with their own trauma histories; in fact, it is often a student’s own trauma history which moti- vates them to enroll in the clinic to assist clients with similar issues. Of course, working with clients with trauma histories can be triggering for students with their own trauma histories. A crucial aspect of the

148 Prof. Katz gives the following prompt: Vicarious trauma, also sometimes called compassion fatigue or secondary trauma, is a term for the effect that working with survivors of trauma may have on counselors, therapists, doctors, lawyers and others who directly help them. Vicarious traumatization refers to harmful changes that occur in professionals’ views of themselves, others, and the world, as a result of exposure to the graphic and/or traumatic experiences of their clients. Vicarious trauma occurs in someone who is not the primary person experiencing the trauma. Vicarious trauma happens when a secondary person is exposed to the original victim or offender, likely in the course of their profession. In the practice of family law, our clients share some of the most painful and intimate details of their lives. Please use this journal entry to reflect on how you manage your reactions to these stories, and coping mechanisms you are developing to maintain balance as you move through this work. 149 Sandra L. Bloom, Caring for the Caregiver: Avoiding and Treating Vicarious Trau- matization, in SEXUAL ASSAULT: VICTIMIZATION ACROSS THE LIFESPAN – A CLINICAL GUIDE 459, 466-467 (A.P. Giardino, E. M. Datner, and J.B. Asher eds.) (2003). 150 Parker, supra note 2, at 178, 198. R \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 35 8-MAR-16 10:34

Spring 2016] Teaching Trauma-Informed Lawyering 393 pedagogy of trauma-informed lawyering consists of acknowledging for law students that they may have their own trauma histories that have an effect on them as they proceed in their legal careers, particularly in working with clients with trauma histories. It is important to create a space for students to talk about and/or reflect on their own trauma experience as needed, as they proceed in working with clients with trauma histories.

CONCLUSION As this article explains, teaching trauma-informed lawyering is a critical aspect of law students’ education in the clinical legal educational setting, particularly in clinics which focus on practice areas where clients’ trauma experiences are the direct subject of the representation. This article is not meant to be an exhaustive treatise on how to teach these subjects in law school clinics. Rather the message is simple: a little knowledge about trauma goes a long way in helping students adjust their practice skills to competently and zealously represent clients who have experienced trauma. By implementing the four hallmark teaching goals of trauma-informed lawyering, clinical law professors can not only enhance the advocacy of their students while in the clinic, but also convey lasting skills which will set their students on the path to being excellent lawyers throughout their careers. \\jciprod01\productn\N\NYC\22-2\NYC202.txt unknown Seq: 36 8-MAR-16 10:34

Attachment 3

Trauma-Informed Legal Advocacy: Practice Scenarios Series

The Trauma-Informed Legal Advocacy (TILA) Project is designed to offer guidance to legal advocates and lawyers on applying trauma-informed principles to doing legal advocacy with survivors of domestic violence. This document is part of a series: Trauma-Informed Legal Advocacy (TILA): Practice Scenarios Series.1 Within each scenario in this series, we practice a two-step analysis of (1) what is happening from the perspective of the person we are working with, and (2) what strategies we can try to best support or represent them.

Scenario: “Staying on Track” You are meeting with someone to provide support as they navigate a legal case, or to give legal advice. But they are talking about many other concerns that you cannot help with. You want to help them, but you are also worried that you won’t have time to help someone else who is waiting.

In legal settings, the time we have to work with any one person may be strictly limited. There is a great need for legal advocacy and representation, which puts enormous demands on our time. Furthermore, many of the people whom we meet with may have needs beyond those that we are able to help with.

Because we are often working under intense time restrictions, it is easy to get frustrated when we feel like an interaction is taking too much time or not “staying on track.” Often we are frustrated because we want to feel helpful and something is getting in our way. What gets in the way of feeling helpful? It may be that the person is not talking about concerns that we can help with. We may want to end the interaction quickly so we can help someone else. It may also be the person is not providing the information we need to help them with something that we can and want to help with, such as an order of protection. Or they may simply be talking about other things that seem unrelated to what we are working on. In some cases, they may appear very anxious and scared of something or “checked out,” or they are nodding off, or sound like they are having confused thinking. And in some cases, this may be related to a mental health or substance use condition.

1 The TILA: Practice Scenarios Series was created by Rachel White-Domain, JD, National Center Domestic Violence, Trauma & Mental Health. Find more TILA resources here: http://www.nationalcenterdvtraumamh.org/trainingta/trauma- informed-legal-advocacy-tila-project/

TILA PRACTICE SCENARIOS: STAYING ON TRACK

Step 1. What is happening from their perspective?2

At this point, it can be helpful to consider what We may have trouble might be happening for the person we are “staying on track” due to working with. When we do this, we realize that • being afraid; there are a number of reasons why it might be • being triggered; hard for someone to “stay on track.” They may • medication; be deeply afraid, with good reason. Or they may • a disability; simply have a lot on their mind. Someone may • a Traumatic Brain Injury; also have trouble “staying on track” due to • substance use. • medication they are taking; • being triggered by a reminder of past trauma; • a cognitive or psychiatric disability; • a Traumatic Brain Injury (common among survivors but often unrecognized); • substance use or the impact of past substance use.

On the other hand, the person we are working with may be discussing something that seems unrelated at first, but that later turns out to be entirely relevant to the danger or concern they are experiencing.

In our role as a legal advocate or lawyer, even when we don’t know why someone is having trouble “staying on track,” we can take an approach to our work that is grounded in an accessibility and trauma-informed perspective. From this perspective, we know that, while not always possible, the ideal solution when working with someone who needs more time is to take more time. Having more time to fill out forms, etc., may in fact be a necessary accommodation for a person with a disability. When possible, taking this extra time can have a significant impact, because people who are experiencing disabilities that interfere with their access to supports may also be at greater risk for violence.

Abusive partners understand and use accessibility barriers against their partners. Knowing this, we take the extra time with someone whenever we can. We may even advocate for changes within our organizations that accommodate our ability to do this, so that we can ultimately increase the accessibility of our agency’s services.

2 Taking on a trauma-informed lens is sometimes described as shifting from a perspective of “What’s wrong with you?” to “What happened to you?” Amy Judy, JD, Disability Rights Wisconsin, has offered this framing, which incorporates an accessibility approach as well: “What is happening from your perspective?”

TILA PRACTICE SCENARIOS: STAYING ON TRACK

Regardless of our efforts, there will always be times From a trauma- when we don’t have as much time as we would like. informed and In some cases, no matter how much extra time we take, it will never be enough. What might help us to survivor-centered make the best use of limited time and “refocus” perspective, the key to conversations when we get “off track”? managing time well is to collaborate on how Step 2. What might help? the time is used. From a trauma-informed and survivor-centered perspective, the key to managing time well, especially when we don’t have very much of it, is to collaborate on how the time is used. A good start is to simply acknowledge time limitations and state your intention to collaborate on how the time is used. If needed, briefly explain your role, including the types of issues you can (and cannot) help with, as well as any process requirements, such as the need to complete paperwork at the end of the meeting, and any limitations on confidentiality. These steps incorporate the trauma-informed principles of predictability, transparency, respect, and choice.

Next, you can ask the person you are working with how they want to use your time together. You want to come to consensus about what you will try to accomplish during the meeting, given the needs, resources, and limitations that you are both bringing to the table.

“I know things here at the courthouse can feel very rushed, but I think we can work together and get some things done today. As an advocate, I can’t help with everything, but I know a lot about helping people with orders of protection. Do you want to use our time together to work on that?”

“Our time today is going to go by very fast, so I want to make sure we decide together how to make the best use of it. The things I know about are issues related to divorce and custody. If there are other things you are worried about, I will try my best to give you other resources. Given that, what do you think are the most important things for the two of us to talk about today?”

Most of the time, all of this should only take a few minutes. Sometimes, it can take longer—but in these cases, the time spent up front to decide together how time will be used can make the whole process go more smoothly.

TILA PRACTICE SCENARIOS: STAYING ON TRACK

Although setting the goal or intention for a conversation helps, we may sometimes find that our conversation gets “off track.” When this happens, there are some simple strategies that we can use to come back to our intentions and goals in a respectful and trauma-informed way.

What to do if the conversation gets off track: 1. Interrupt respectfully 2. Acknowledge fears and concerns 3. If needed, clarify what you can and cannot help with 4. Review original intentions and goals 5. Decide together how to spend the remaining time

It is acceptable to interrupt a conversation respectfully and transparently:

May I interrupt you there? I want to check in and make sure we will meet the goals that we set for ourselves.

Lucinda, can I pause the conversation for a moment? Let’s see where we are with our plans for today.

Interrupting respectfully is an art form! Interrupting too soon or too often may be a barrier to building a sense of trust. On the other hand, if we don’t interrupt until we are completely overwhelmed, we may find that we have drained our own resources to stay present for the rest of the conversation. When we interrupt, we do our part to show that we care about and respect the person we are working with, and we must also trust that the other person will be able to manage the disruption that interrupting may cause.

After interrupting, it can be helpful to acknowledge the concerns that they have raised, especially if someone has shared experiences of violence or fears about future violence.

If needed, clarify what you can and cannot help with. This may include concerns related to housing, for example, and it may include concerns that are related to a mental health condition. Say for example, the person you are working with is concerned that they are being stalked by members of a famous organized crime ring. You might simply say, “That is not something that I have experience with.” Offer resources and referrals whenever possible. At the same time, as domestic violence advocates and lawyers, we know that sometimes events that seem hard to believe are in fact true! Other times, elements of these experiences may be true, such as the experience of being stalked (for example, by an ex-partner).

TILA PRACTICE SCENARIOS: STAYING ON TRACK

After acknowledging concerns and clarifying, if needed, what you can and cannot help with, review your shared goals for the meeting and decide together whether you will still try to meet your original goals, or if you will change you plans.

I can tell you’re really worried about being evicted from your home. That is not something that I can help with. I can help with completing this petition for an order of protection. I know that there is a lot going on in your life, and I know this won’t help you with everything. We are coming to end of the time that we can work together today. I think that finishing this petition is the best way that I can help you today. But I want to know what you think.

What you are describing sounds very frightening. That is not something that I have any experience with. I do know some good people that may know more about the situation you are describing. I can put you in touch with them if you want. Should we do that now, and get ready to finish up talking for the day? Or, do you want to try and finish what we started working on together? What do you think would help you most today?

Keep in mind that, as with all TILA strategies, “staying on track” is an art form, not a math formula. In the wise words of Patti Bland, MA, CDP, “There are no answers here, only strategies and tools.”

***

This publication was funded through grant #90EV0417 from the U.S. Department of Health & Human Services; Administration for Children and Families; Family and Youth Services Bureau; Family Violence Prevention and Services Program. Points of view expressed in this document do not necessarily represent the official position or policies of the U.S. Department of Health and Human Services.

Attachment 4

Trauma Informed Structured Interview Questionnaires for Immigration Cases (SIQI)1

By: Mary Ann Dutton, Krisztina Szabo, Rocio Molina, Maria Jose Fletcher, Mercedes V. Lorduy, Edna Yang, and Leslye Orloff The National Immigrant Women’s Advocacy Project 2 September 21, 2015 (Updated April 18, 2018)

The following questionnaires are provided to facilitate the Trauma Informed Structured Interview. 3 During the story developing session, clients are encouraged to share their story uninterrupted while advocates and attorneys listen, take notes, and watch for triggers. This tool is designed to be used during follow up interviews with clients. This Structured Interview Questionnaire for Immigration (SIQI) will aid advocates and attorneys in eliciting additional in-depth information to strengthen their client’s immigration case and will also provide a complete picture of trauma and distress endured by survivors. The questions are designed to facilitate the client’s healing and to strengthen the client’s immigration application by uncovering important details of the story by screening for additional incidents, experiences, and emotional harms that contribute to extreme cruelty and/or substantial mental or physical abuse. Attorneys and advocates should explain the goals of this session to the client before initiating the trauma informed structured interview.

While conducting the Trauma Informed Structured Interview Questionnaire for Immigration (SIQI), it is important to be mindful of the following: • The story developing session in which clients are encouraged to share and to the extent possible write their stories uninterrupted comes first. • This SIQI can be used by the attorney or advocate during that first interview as a note taking guide to annotate or identify issues that you want to be sure to follow up on in the second interview. However, trauma informed best practices make it important to assure that the first interview is the victim’s uninterrupted account and if you use the SIQI it should be for note taking only. • These questions should be administered by the advocate or attorney and are not intended to be used as a questionnaire(s) that clients fill out on their own. • Clients should be told ahead of time that some of these questions are sensitive in nature and that they are not required to answer questions that make them uncomfortable. The advocate or attorney may want to tailor the questions to the client’s ability to understand the question. (i.e. education, cognitive understanding, bilingual advocates adapting the questions to be most understandable in the client’s native language) • Use this tool in conjunction with crisis intervention techniques and be mindful of your own self- care needs during this and all other sessions. • Allow time for breaks and “check-ins” with your client.

This tool was created to help both attorneys and advocates navigate the different immigration protections available to immigrant survivors. The tool will provide you with step by step information on how to

1 This training is supported by Grant No. 2011-TA-AX-K002 awarded by the Violence Against Women Office, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, conclusions and recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women. 2 Copyright © National Immigrant Women’s Advocacy Project, American University, Washington College of Law 2013, 2017. 3 Part of the introduction to this Trauma Informed Tool, pages 1-3, was jointly developed by CALCASA and NIWAP.

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make an immigration relief assessment, complete immigration relief intake, draft declarations, collect supporting documents, and complete VAWA and U visa files.

It is paramount that in your interaction and interview with the survivor that you take a trauma-informed approach. A trauma-informed approach recognizes the widespread impact of trauma and understands potential paths for recovery. Trauma is defined as an emotional response to a terrible event like an accident, rape or natural disaster. Immediately after the event, shock and denial are typical. Longer term reactions include unpredictable emotions, flashbacks, strained relationships and even physical symptoms like headaches or nausea. While these feelings are normal, some people have difficulty moving on with their lives. 4

A trauma-informed approach recognizes the signs and symptoms of trauma in clients and responds by fully integrating knowledge about trauma into policy and practice while actively seeking to avoid re- traumatization of the victim. Importantly, a trauma-informed approach can be utilized in any setting. The key principles to a trauma-informed approach are: Making the survivor feel safe during the interview process; having a relationship of trust between the interviewer and the survivor; feeling supported; feeling empowered during the course of the interview, having their voice heard and feeling they have choices; the interview proceeding mindful of cultural, historical and gender issues.

Initial Survivor Interview The story of the survivor is one of the central pieces to Violence Against Women Act (VAWA) and U visa applications and processes, which sets them apart from other immigration proceedings. The story or affidavit is the place for the survivor to impress upon the Department of Homeland Security (DHS) Adjudicator the impact of the trauma on their life and their reasons for needing the support of a VAWA or U visa. When reading the survivor’s story, the reader – ultimately, the DHS adjudicator – should be able to know and feel what the survivor felt after being subjected to abuse or crime victimization.

The initial interview also provides advocates and attorneys with the opportunity to establish a good rapport with the survivor, build trust, make the survivor feel heard, safe and supported, further discuss the application process, uncover cultural, historical and gender issues, review supporting documents, and assist with the survivor’s declaration. It is important to explain the legal process and any necessary requirements in simple language to avoid confusion. Our goal is to empower clients to reclaim their autonomy and independence. Each survivor will determine what is best for them, and regardless of our personal opinion and/or feelings, we have to support survivor’s decisions. The survivor should be given the option of writing their own story, having it transcribed by an advocate, or recording it.

In the initial story telling session, it is important to let the survivor share their story as a stream of consciousness. As the recorder and support interviewer, resist the urge to interrupt the story telling process. Save the clarification of details until later. Ask open-ended questions, such as: and then what happen? And use affirming body language—nodding and agreeing with the survivor. Ask the survivor to let you know when they need a break or if they are feeling stressed or anxious during the story telling.

Preparing for Story Collection It is important that you prepare prior to preparing the survivor’s story. Take time in advance to read police reports, request for protection orders, court records and medical records, or whatever else might be available to you that might be beneficial in telling the survivor’s story. Tell your client ahead of time what your goals are before the story collection so they can best prepare. Determine how your client wants to document their story. Do they want to write it themselves, do they want you to transcribe it, or do they want to record it? Ensure that both you and your client have set aside adequate time to document the

4 American Psychological Association, Trauma, http://www.apa.org/topics/trauma/.

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story taking into account the use of interpreters and translators. Determine in advance whether you will refer to the “story” as such or refer to it as an “affidavit.”

Your Client’s Story on Paper The client is their expert. Listen to your client’s story with support and empathy. When your client appears upset or triggered, pause and take a break, offering them a glass of water. Listening to their experience with empathy validates their experience and sympathizes with the trauma they have experienced. It minimizes re-traumatization. If your client does not speak English, you can either record the experience and have it translated later, or transcribe it in their native language and have it translated later. For the first draft, spelling and grammar are not important. Fluidity of story telling is what is important and creating an environment whereby your client tells their story and feels heard is what matters most. Whatever manner your client chooses to document their experience, transcribe it themselves, have you transcribe it, or record it, respect their decision.

Supplemental Interview After the client has documented their story, you as the advocate/attorney will proceed to the next step in the story development process, reviewing with your client a series of additional questions. These questions are trauma-informed while getting to the details that are important for the visa application. These questions are designed to solicit more complete information about the survivor, their case, experiences, and the impact of these events on the victim and their children. This interview will also be a time when it will be important to ask follow-up questions obtaining more detail about events raised in your client’s story. Again, it is important that one follow a trauma-informed approach when asking these questions. One needs to recognize that the questions could be upsetting or trigger a client. When your client appears upset or triggered, pause and take a break, offering them a glass of water or simple breathing or grounding exercises. 5 Do not proceed until your client appears ready to proceed, and you have been given verbal assurance that they are ready to proceed.

Integrating the Story After you have obtained the story your client wrote/told you, and held your follow up questioning session, you as the advocate/attorney will shape the story into a cohesive whole. In doing so you will: 1) organize the story chronologically; 2) correct all grammar and spelling, and; 3) ensure that the story remains in your client’s own words. Once the story has been edited, it will be reviewed with your client one last time, again with a trauma-informed approach. Upon completion, you will secure your client’s signature and submit the story as evidence in the immigration case.

Importance of Self-Care Self-care is particularly important for attorneys and advocates that work closely with clients who have experienced trauma and have difficult stories to tell. Self-care is not a sign of weakness. It is a way of making our bodies and minds stronger, thus enabling us to continue living our lives. Documenting their traumatic experiences can impact those helping them. Often one may experience stress, fatigue or sadness after helping an immigrant survivor document their history of abuse. Remember, we cannot take care of others unless we first take care of ourselves.6

STRUCTURED INTERVIEW QUESTIONS FOR VAWA SELF-PETITION

5 See Tula Biederman & Rocio Molina, Supplemental Grounding Exercises for Trauma-Informed Approach, NIWAP (2014), http://niwaplibrary.wcl.american.edu/pubs/groundingtool/. 6 See Benish Anver & Rocio Molina, Self-Care Tools, Strategies and Assessment, NIWAP (2014), http://library.niwap.org/wp- content/uploads/Self-Care-Tool.pdf.

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This section outlines the basic requirements for a VAWA Self Petition and will allow the attorney/advocate to remember follow up questions and details that may be important to document the abuse, battering and extreme cruelty and the impact of these on the client’s well-being, physical and mental health and safety for the VAWA self-petition. It begins by documenting the details of the relationship between the abuser and the client, the extreme cruelty suffered and its extent, and any good moral character issues that may affect the client’s application. Note that not all sections will apply to your client.

I. Relationship with Abuser and Cohabitation If the abuser is your spouse or ex-spouse, you will need to show that you got married because you loved each other, and that you lived together at some point.

• When and where did you and your spouse meet? o Who introduced you? o Who else was there when you first met? • When did you start dating? What did you do while you were dating? o While you were getting to know each other, were you in the U.S. or in another country? o Did you go out to eat, go to parties, go to the movies, etc.? . What kinds of activities did you do together? . Were there people that you went out with? o What made you fall in love with your spouse? • When did you move in together? • How long did you date or live together before you decided to get married? • When did you decide to get married? o Did your spouse propose to you? o Where were you? o What were you doing? o What did you respond? o Was anyone else present? • When and where did you get married? o How was your wedding? o Who was present? o Was there a party before or after the wedding? • Did you go on a honeymoon? If yes, when and where? • Where did you first live as a married couple? Do you remember the address? • Write down a list of the addresses of all the homes you shared with your spouse and the dates you lived there. • When you were living together, did anyone else live with you (children, parents, siblings, or friends)? • Were you allowed to have friends visit you at your home? • Did you have parties or receptions? • Do you and your spouse have children together? How many children do you have in common? What are their names and when were they born? • If you had children from a previous marriage or relationship, did your spouse spend time with them? • What was the marriage like at the beginning?

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o Were there good times before the abuse started? o What did you do together as a family? o Do you remember any special occasion from the good times? o A family celebration? o A birthday party? o A family vacation? • What were your future plans together?

If the abuser is your stepparent, you will need to show that you had a stepparent-child relationship.

• How did your parent and stepparent meet? o When did they start dating? o When did they move in together? • How long did your parent and stepparent live together before they decided to get married? • When and where did your parent and stepparent get married? o How was their wedding? • In addition to you, do your parent and stepparent have any children? o How many children do they have in common? o What are their names and when were they born? • Were you ever adopted by your stepparent? • Did you ever live together with your parent and stepparent? o If so, do you remember the address (es)? Try to include all the address (es) of the homes you shared with your parent and stepparent and the dates you lived there. • Do you remember any special occasions from the good times you spent with your parent and stepparent? o A family celebration? o A birthday party? o A family vacation?

If the abuser is your parent, you will need to show that you had a parent-child relationship.

• How did your parents meet? o Did they ever get married? o If so, when and where? • When and where were you born? • Is the abusive parent listed on your birth certificate or on your baptism record? • Do you have any siblings or half-brothers or half-sisters from this parent? • If your parents divorced or separated, did the abusive parent have custody of you? • Did the abusive parent have to pay child support? • Did he or she have visitation rights to see you? If so, how often? • Did you ever live together with your abusive parent?

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o If so, do you remember the address (es)? o Try to include all the address (es) of the homes you shared with him or her and the dates you lived there. • Do you remember any special occasions from the good times you spent with your abusive parent? o A family celebration? o A birthday party? o A family vacation?

If your abuser is your over 21 year old U.S. citizen son or daughter, you will need to show that you had a parent-child relationship.

• When was your son or daughter born? o Are you listed on his or her birth certificate or baptism record? • Did you live with your son or daughter as he or she was growing up? o If not, did you visit him or her? o If yes, how often did you see your son or daughter? o Did you pay child support for him or her? • When did your son or daughter come to the U.S.? o How did he or she become a U.S. citizen? • Did you ever live together with your son or daughter in the U.S.? o If so, do you remember the address (es)? o Try to include all the address (es) of the homes you shared with him or her and the dates you lived there. • Do you remember any special occasions from the good times you spent with your son or daughter? o A family celebration? o A birthday party? o A family vacation?

II. Battery and/or Extreme Cruelty

• When did the abuse begin and where were you at the time? o Did it start with an argument or was it unprovoked? o Did it escalate into physical violence? • After the initial mistreatment, how frequent were your abuser’s abusive episodes? o Did your abuser get more and more violent? • Please give a detailed description of what the abuse was like. o Can you recall a specific violent or abusive outburst? o What did your abuser do specifically? o Did your abuser do any of the following things: . Yell or curse at you? Did your abuser call you names? If so, what words did he or she use? . Hit, kick, or slap you? If so, what did your abuser use and how did he or she hurt you?

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. Throw things at you? If so what did your abuser throw at you? . Pull your hair? . Grab you by the throat? . Force you to have sex against your will (when you didn’t want to)? • Did your abuser also hurt your children? How? • Did your abuser forbid you to communicate with family or friends? • Did your abuser ever threaten to kill or hurt you, your children, or family members? • Did your abuser threaten you with a gun or other weapon? • Did your abuser threaten to commit suicide? • Did your abuser threaten to destroy your property? • Did your abuser threaten to have you deported or take your papers away? o Did your abuser threaten to take your children away? • Did anyone, including family and friends, witness the abuse? • Did you seek medical assistance because of the abuse? When? Where? • Did you call the police because of the abuse? o When? o How many times? o What did the police do? Was a police report taken at these times? • Did you ever get a restraining order? • Has there been a criminal case charged against your abuser? When? Where did it happen? • After your abuser’s violent periods, did you make up? o Did your abuser apologize? o How was your abuser’s behavior afterwards? o Did your abuser treat you better momentarily? • When and why did you decide to leave your husband? o How were you able to do it?

III. Good Moral Character

• Think of examples that show that you are a good parent. o Do you work long hours or overtime to support your family? . Do you work several jobs to make ends meet? o Describe your role in taking care of your children. . Do you drive them to and from school? . Do you dress them in the morning? . Do you prepare their meals? . Do you take them to the doctor or dentist? o Do you help your children with their homework or school projects? . Are you involved with their school activities? o Describe your favorite activities with your children. . Do you read them stories at night? . Do you pray together? . Do you take them to the playground? . Do you play with them?

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o Give examples that show that you are a good member of your community. o Do you regularly attend religious services? o Are you an active member in your faith community? o Do you volunteer your time or donate? o Do you help out your neighbors, friends, or other family members?

STRUCTURED INTERVIEW QUESTIONS FOR VAWA CANCELLATION OF REMOVAL

VAWA Cancellation is a remedy available only to those clients who are in removal (deportation) proceedings who have cases before an immigration judge. For VAWA Cancellation you will need to write and ask about 2 added elements of the case to qualify, in addition to the questions listed above for VAWA self-petition. Therefore, you should ask these additional questions to be able to show: 1) Continuous Presence in U.S. for 3 years and 2) the hardship your client and her family would face if she were returned to her home country.

IV. Continuous Presence in the U.S.

2. When did you come to the U.S.? 3. How long have you lived in the U.S.? 4. Did you ever leave the country? o If yes, for how long were you gone? o Did your abuser take out outside of the country? o Did you leave the county because of the abuse? o Did you go on a vacation outside the U.S.? o Did you visit relatives in your home country? 5. If you left several times, it’s important to make note of those times with specific dates.

V. Hardship if Returned to Home Country

6. What would happen to you or your family if you were to return to your country of origin? Are you afraid of returning to your country of origin? Why? o What are the living conditions in your country? o Do you think you would be safe? . Why or why not? o Can you trust the police? . Is there a lot of crime? o Are there laws or customs in your country that mistreat victims of domestic violence, are divorced, or have children but no husband? o Does the government of your country protect victims of crime? o Are you afraid that your abuser would take action against you in your country? . Or do you think your perpetrator would try to harm you for having called the police? . If so, would you be able to receive adequate protection? o Are you afraid that the friends and family of your abuser will try to hurt you or your children (physically or psychologically)? 7. Why do you want to stay in the United States?

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o If you had to leave the U.S., would you be separated from your loved ones? o Would you still be able to support yourself and your family? o Are there services that you have in the U.S. that you wouldn’t have if you were deported (ex: social workers, medical help, counseling, government benefits like WIC, etc.)? o If you or your children are receiving medical treatments or counseling, would you be able to continue them in your home country? o Do your children speak the native language of your country? o Would it be difficult for them to adjust going to school in your country? o Do you need to stay in the U.S.to have access to the courts and/or help the police in investigating your abuser? 8. What hopes do you have for the future, for you and for your children? 9. Is there anything else you would like to mention or tell the Immigration officer about you or your family?

STRUCTURED INTERVIEW QUESTIONS FOR U VISA CASES

This section outlines the basic requirements for a U Visa and will allow the attorney/advocate to remember follow up questions and details that may be important to document the U visa application. There are a number of questions asking about the harm stemming from the crime which may be difficult for your client to answer, but which is useful in meeting the requirement that an applicant demonstrate the substantial physical, psychological, or emotional harm suffered from the crime.

VI. Relationship with Perpetrator (there need not be a relationship perpetrator)

• Is the perpetrator a relative or family member? o Did you live together? How long was your relationship with him or her? • Is the perpetrator your spouse, former spouse, or significant other? How did you meet and what has your relationship been like? o How long were you in a relationship?

. If you were married, when and where did the ceremony take place? . Did you have children from a previous relationship? . Did you have children with your partner? . How did your partner treat the children? o Is the perpetrator someone you went on a date with? If so how and where did you meet? o Is the perpetrator someone who stalked you or tried to go on dates with you? o Is the perpetrator your boss, manager, co-worker, customer, or client? o Is the perpetrator your teacher or classmate? o Is the perpetrator your neighbor or family friend? o Is the perpetrator your clergy member or someone from your faith community?

VII. Qualifying criminal activity

1. If you client was a victim abuse by his/her spouse, partner, or parent: • When and how did your abuser start mistreating you? For example did your abuser insult you? Did he or she hit you? Push you? Kick you? Did your abuser say bad words to you?

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Did he or she call you names? • How often did your abuser do this? • Did your abuser do it in front of others? Who? • How did it make you feel? • Did you ever call the police? Were you too scared to call for help? • When was the first time you decided to call the police? What happened?

2. If your client was the victim of a criminal activity or criminal activities by a stranger: • Where were you and what were you doing right before the crime? Do you remember the time? • How did the incident begin? Did the perpetrator instigate an argument or did he/she attack right away? • How and where did the perpetrator hurt you? • Did you try to escape? Were you able to cry for help? • Did anyone see what happened?

VIII. Physical, physiological, and emotional harm

• Have you suffered any physical injury? • What was the intensity and the duration of the pain? • Were you permanently disabled or scarred as a result of the criminal activity? • Were you taken to the hospital or did your receive any medical care? • Were you prescribed any medication? • Have you suffered any psychological injury because of the criminal activity? • Do you experience humiliation, depression, sleeping problems, anxiety? • Have you received any counseling? • Have you been prescribed medication to cope with your psychological problems? • How has the victimization from the crime changed your physical or emotional energy? o Have you been suddenly acting or feeling as if a stressful experience were happening again (as if you were reliving it)? o Have you been feeling very upset when something reminded you of a stressful experience from the past? o Have you been experiencing physical reactions (e.g., heart pounding, trouble breathing, or sweating) when something reminded you of a stressful experience from the past? o Have you been avoiding thinking about or talking about a stressful experience from the past or avoid having feelings related to it? o Have you been avoiding activities or situations because they remind you of a stressful experience from the past? If so, what kind of activities have you been avoiding? o Did you lose interest in things that you used to enjoy? If so, what sort of things or activities? o Have you experienced trouble falling or staying asleep? o Have you been feeling irritable or have you had angry outbursts? o Have you experienced difficulty concentrating? o Have you been feeling “super alert” or watchful on guard? Have you been feeling jumpy or

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easily startled? o How has victimization changed your reaction to remembering or thinking about certain things? Do you have repeated, disturbing memories, thoughts, or images of a stressful experience from the past? Do you have repeated disturbing dreams of a stressful experience from the past? Do you have trouble remembering important parts of a stressful experience from the past? o How has being a victim of this crime changed how you feel about the future? Have you been feeling as if your future will somehow be cut short? • How has it change your relationships with people? • How has being a victim of this crime impacted your ability to work or be productive? • How has it changed your relationship with your family and children? • Are you more fearful and mistrusting of people? Are you fearful for your life? • Have you been feeling distant or cut off from other people? • Have you been feeling emotionally numb or being unable to have loving feelings for those close to you? • Were your children affected in any way? • Are they experiencing sleeping or behavioral problems after the incident? Are they acting out in school? • Did you receive assistance from any community agency? Financial, therapy, social services? Please describe. • Have you received any kind of counseling or psychological therapy as a result of the incidents that occurred with your perpetrator?

IX. Helpfulness to Law Enforcement

• Did you call the police? If you didn’t, who did? o If you called the police on previous occasions, then describe the events that occurred when you called the police the last time. • What happened while you were waiting for the police to arrive? What happened when the police arrived? o Did they arrest the perpetrator? o Did the perpetrator get away? • How were you and the police officers able to communicate? o Did someone translate for you? If so, who? Did the police bring an interpreter for you? • What did the officers ask you? What did you tell them? o Did you tell the police you wanted the perpetrator arrested? • Did the police officers take any photos of your injuries or of the place where the criminal activity occurred? • Did the police report accurately describe what happened? If not, what were the discrepancies? • Did the police ever call you to follow-up or ask you more questions? o Who called you and how many times did the officers call you to ask questions about the incident? • Did anyone else call you to ask you about the incident? o Who were they and what did they ask you? o Did they request you appear in court? o In their office?

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o How did you feel about everything that was happening? • Were social services involved as a result of the criminal activity? o If so, how did you help them? • Was the perpetrator charged with a crime? o Do you remember what it was? • Did you get a restraining order? o Did the perpetrator ever violate it? o If so, did you call the police? • Did you receive any correspondence from the Court? o The State Attorney’s Office? The Police Department? • Did you receive any telephone calls from the Court? o The State Attorney’s Office? The Police Department? o Who called you and what did they need? • Did you ever receive a notice to appear in Court? o Did you ever receive a Subpoena? o If so, did you go to court? o If you did, describe what happened in court. o How did you feel? o Were you confused? o Were you afraid? Why?

STRUCTURED INTERVIEW QUESTIONS FOR WAIVER OF INADMISSIBILITY

Note that this section may not apply to those who are not subject to any grounds of inadmissibility. An individual who seeks admission into the United States through a VAWA self-petition, a U visa, a T visa or an application for lawful permanent residency must meet certain admissibility requirements to be eligible to receive an approved immigration case, receive a visa and eventually be legally admitted into the United States. Immigration law contains lists of inadmissibilit y grounds that it is important for advocates and attorneys to identify so that the victim’s immigration case application can include waivers of inadmissibility requests as part of the client’s application. Identifying whether any of the following issues are present in the victim’s immigration case is crucial to ensuring that all needed inadmissibility waivers are identified and addressed as the victim’s immigration case is being prepared. The ability to attain approvals in VAWA, T or U visa immigration cases is enhanced when inadmissibility issues are identified and addressed as early as possible in the application process.

X. Inadmissibility

1. What was the unlawful activity that you committed? What or who made you do it? o Did you enter the U.S. as a minor? o Did you enter unlawfully to reunite with your family? o Were you trying to escape abuse, physical or sexual violence, or extreme poverty? o Did you drive without a license because you had to get to work, take care of your children, or go to the doctor? 2. What were the consequences of the unlawful activity? o Did you resolve the matter by paying a fine? o Did you have to go to court?

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. If so, what happened at court? . Did you plead guilty? . Who advised you to plead guilty or why did you decide to plead guilty? 3. Do you feel sorry for what you did? 4. Ask your client to tell you about positive characteristics regarding the kind of person they are? Often survivors may overlook this part of their character. You may want to ask if they consider themselves: o A good person, ask for an detailed examples: . Are you a responsible parent? . Are you a hardworking employee? . Are you a law-abiding person? o Do you work long hours or overtime to support your family? o Do you work several jobs to make ends meet? o Describe your role in taking care of your children. . Do you drive them to and from school? . Do you dress them in the morning? . Do you prepare their meals? . Do you take them to the doctor or dentist? . Do you help your children with their homework or school projects? . Are you involved with their school activities? o Describe your favorite activities with your children. . Do you read them stories at night? . Do you pray together? . Do you take them to the playground? . Do you play with them? 5. To show that your client is a good member of his/her community, ask: o Do you regularly attend religious services? o Are you an active member in your faith community? o Do you volunteer your time or donate? o Do you help out your neighbors, friends, or other family members? 6. Ask your client to conclude by explaining how their life would change if they had to leave the U.S. If your client has children, also discuss how it would change the children’s lives if they had to return to the client’s native country. 7. What would happen to you or your family if you were to return to your country of origin? Are you afraid of returning to your country of origin? Why? o What are the living conditions in your country? o Do you think you would be safe? Why or why not? o Can you trust the police? Is there a lot of crime? o Are there laws or customs in your country that mistreat victims of domestic violence, victims who are divorced, or have children but no husband? o Does the government of your country protect victims of crime? o Are you afraid that your abuser would take action against you in your country? . Or do you think your perpetrator would try to harm you for having called the police?

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. If so, would you be able to receive adequate protection? o Are you afraid that the friends and family of your abuser will try to hurt you or your children (physically or psychologically)? 8. Why do you want to stay in the United States? o If you had to leave the U.S., would you be separated from your loved ones? o Would you still be able to support yourself and your family? o Are there services that you have in the U.S. that you wouldn't have if you were deported (ex: social workers, medical help, counseling, government benefits like WIC, etc.)? o If you or your children are receiving medical treatments or counseling, would you be able to continue them in your home country? o Do your children speak the native language of your country? o Would it be difficult for them to adjust going to school in your country? o Do you need to stay in the U.S.to have access to the courts and/or help the police in investigating your abuser? 9. What hopes do you have for the future, for you and for your children? 10. Is there anything else you would like to mention or tell the Immigration officer about you or your family?

TRAUMA INFORMED EVIDENCE BASED STRUCTURED INTERVIEW QUESTIONS

The following trauma informed interview questions are designed to help you and your client identify additional information that will strengthen your client’s VAWA or U visa cases in a variety of ways. This section of the structured interview will use research based trauma informed questions. Going through these questions with your client will help you build a stronger case on issues including extreme cruelty, substantial harm, good moral character and your client’s qualification for inadmissibility waivers. They will also help you identify additional incidents of abuse and criminal activity that may not have surfaced through story writing or the follow up questions listed above.

XI. Danger Assessment7

Note to Advocates and Attorneys: Research among immigra nt survivors has found that advocacy involving danger assessment and safety planning strongly correlates with immigra nt survivors’ willingness to seek protection orders, immigratio n relief and other forms of legal protections. For victims scoring high on this danger assessment scale provides you a strong indicator of the importance of working to help your client file for VAWA and U visa relief as soon as possible. This is because filing a VAWA, U, or visa immigratio n case will cut off the ability of the perpetrator to trigger immigra tio n enforcement actions against your client and will strengthen her safety planning. Assessing danger will also help you identify key areas of evidence to develop in support of proving battering and extreme cruelty in your VAWA case and identifying crimina l activities and proving substantial harm in your U visa case. High numbers of yes answers on the danger assessment questions may also provide you evidence that you can use to explain why the client was afraid to call the police for help, cooperate with prosecutors,

7 Jacquelyn C. Campbell, Ph.D., R.N., Danger Assessment,(2003), http://www.dangerassessment.org/DATools.aspx.

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seek medical assistance or file for a protection order.

Script: Several risk factors have been associated with increased risk of homic ides (murders) of women and men in violent relationships. We cannot predict what will happen in your case, but we would like you to be aware of the danger of homicide in situations of abuse and for you to see how many of the risk factors apply to your situatio n.

Mark Ye s or No for each of the following. ("He/She" refers to your spouse, partner, ex-spouse, ex-partner, or whoever is currently physically hurting you.)

1. Has the physical violence increased in severity or frequency over the past year? 2. Does s/he own a gun? 3. Have you left her/him after living together during the past year? a. (If have never lived with her/him, check here ) 4. Is s/he unemployed? 5. Has s/he ever used a weapon against you or threatened you with a lethal weapon? a. (If yes, was the weapon a gun? ) 6. Does s/he threaten to kill you? 7. Has s/he avoided being arrested for domestic violence? 8. Do you have a child that is not his? 9. Has s/he ever forced you to have sex when you did not wish to do so? 10. Does s/he ever try to choke you? 11. Does s/he use illega l drugs? By drugs, I mean "uppers" or amphetamines, speed, angel dust, cocaine, "crack", street drugs or mixtures. 12. Is s/he an alcoholic or problem drinker? 13. Does s/he control most or all of your daily activities? (For instance: does s/he tell you who you can be friends with, when you can see your family, how much money you can use, or when you can take the car)? a. (If s/he tries, but you do not let her/him, check here: ) 14. Is s/he violently and constantly jealous of you? a. (For instance, does s/he say, "If I can't have you, no one can."?) 15. Have you ever been beaten by her/him while you were pregnant? a. (If you have never been pregnant by him, check here: ) 16. Has s/he ever threatened or tried to commit suicide? 17. Does s/he threaten to harm your children? 18. Do you believe s/he is capable of killing you? 19. Does s/he follow or spy on you, leave threatening notes or messages on answering machine, destroy your property, or call you when you don’t want her/him to? 20. Have you ever threatened or tried to commit suicide?

Total “Yes” Answers

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XII. Conflict Tactics Scale (CTS-2)8

Note to Advocates and Attorneys: Domestic violence serves as the basis for all VAWA and many U visa cases. The following questions will help you gain important information about the full range of abuse occurring in the domestic violence, child abuse or elder abuse relationship. In some U visa cases based on sexual assault, traffick ing or other crimes these questions could also assist you in obtaining more complete informa tio n about the abuse that was occurring that should be included in the victim’ s application.

Script: No matter how well a couple gets along, there are times when they disagree, get annoyed with each other, want different things from each other, or just have arguments or fights. I’m going to list some things that might happen when you have differences with your partner. For each thing, tell me how many times your partner did these things in the last year:

1-2 time s 3-10 10+ Happened, Never In the last year… time s time s but not in happened last year S/he grabbed me S/he pushed me S/he threw something at me that could hurt S/he slapped me. S/he twisted my arm S/he pulled my hair S/he kicked me S/he beat me up S/he punched or hit me with something that could hurt S/he slammed me against the wall S/he choked me S/he burned me on purpose S/he used or told that s/he would use a knife or gun S/he used physical force against me when I was pregnant S/he forced me to have sex S/he refused to wear a condom during sex I had sex with him/her because I was afraid of what s/he would do if I didn’t

8 Straus, M.A.; Hamby, S.L.; Boney-McCoy, S.; and Sugarman, D.B. The Revised Conflict Tactics Scale (CTS2): Development and preliminary psychometric data. Journal of Family Issues 17(3):283-316, 1996.

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I felt physical pain that still hurt the next day because of his/her I had a bruise or cut because of his/her abuse I passed out from being hit so hard by him/her I had a broken bone from his/her abuse I went to the doctor because of his/her abuse I have permanent scars because of his/her past abuse I have physical health problems now because of his/her abuse I have emotiona l problems now because of his/her abuse

XIII. Psychological Maltreatment of Women Inventory (PMWI) 9

Note to Advocates and Attorneys: For VAWA cases this list of questions will assist you in building the extreme cruelty part of your client’s application. For U visa cases these questions will help you collect evidence to help prove substantial harm, domestic violence, stalking and other criminal activities. In addition it is important to remember that under the U visa regulations the perpetrator’s actions can in and of themselves be suffic ie nt to prove substantial harm. These questions can help you build that part of your client’s U visa case.

Script: Now, I’m going to read you statements about things your partner may have done to you in the last year. For each statement, point to the place on the scale that shows how often the event occurred in the last year.

In the last year… Never Some time s Often Very often S/he called you a bad name, swore, yelled or screamed at you S/he treated you like less than s/he was S/he watched over your activities or insisted you tell him/her where you were at all times S/he used your money or made important financ ia l decisions without talking to you about it S/he was jealous or suspicious of your friends

9 Richard M. Tolman, Ph.D., Psychological M altreatment of Women (1995), http://sitemaker.umich.edu/pmwi/home.

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S/he accused you of having an affair with another man/woman S/he interfered with your relationships with family or community members S/he tried to keep you from doing things to help yourself (such as learning English, getting a job, exercising, etc.) S/he controlled your use of the telephone S/he told you that your feelings were crazy S/he blamed you for his/her problems S/he told you s/he would or actually took your children away S/he told you s/he would or actually threw or locked you out of the house S/he told you s/he would or actually locked you in the house or in a room in the house S/he told you s/he would take away or not give you money S/he told you s/he would or actually turned you in to immigration officia ls S/he told you s/he would or actually failed to file or withdrew immigr atio n papers for you or your children S/he told you s/he would hurt you or your unborn child when you were pregnant S/he destroyed your property

XIV. Intimate Partner Violence (IPV) Coercion Measure10

Note to Advocates and Attorneys : Research has found that identifying and measuring coercive control in intimate partner relationships provides more refined and accurate picture of the details of how power and control plays out in abusive relationships. Since domestic violence under immigratio n law is defined as “battering or extreme cruelty” and is more inclusive of a broader range of abusive behaviors than most state protection order and crimina l domestic violence statutes, identifying coercive control in abusive relationships can be very useful in proving extreme cruelty for VAWA immigration cases. Similar ly for U visa cases, proof of coercive control, provides evidence and details of substantial harm, how it is perpetrated and its effect on the victim.

10 Dutton et al., Intimate Partner Violence (IPV) Coercion M easure, (2006)

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This Intimate Partner Violence Coercion Measure aims to detect and measure the cycle of coercive control. In these situations--

1. One party sets the stage for apprehension of impend ing violence against the other by o creating vulnerabilities, o exploiting existing vulnerabilities, o wearing down resistance, and o facilitating attachment. 2. Subsequently, the cycle of coercive control ensues, which consists of: o Coercive demand or expectation o Credible threat – meaningful and negative consequence for noncompliance and the likelihood that the consequence will be delivered (willing, able, ready) o Surveillance o Deliver y of the threatened consequences Appraisal or (Understanding) of IPV Coercion Appraisal of IPV Coercion means understanding of the likelihood that one’s partner would or would try to deliver contingent and meaningful negative consequences for one’s noncompliance with demand or expectation. The language “would or would try” is important since the agent may try, but not succeed because of the target’s resistance – but its still coercion. IPV Coercion is communicating the threat of a meaningful and credible negative consequence for noncompliance with a demand or expectation. IPV Coercion incorporates: 1) communication of demand or expectation, 2) communica tio n of a contingent threat for noncompliance with the demand or expectation, and 3) credibly reasonable ability to carry out the threat.

Ask your client whether and the extent to which the following things are happening in the relationship. If yes, ask the extent to which if your client did not do these things their partner would get back at them by doing something hurtful.

Personal Activities: 1. Not leave the house. 2. Not eat certain foods. 3. Sleep where he (or she) says. 4. Sleep when he (or she) says. 5. Wear (or not wear) what he (or she) says. 6. Bath or use the bathroom only when he (or she) says. 7. Not go places or do things on your own without him (or her) or someone else being there. 8. Not read, watch TV, listen to the radio, or use the internet. 9. Watch or read sexually explic it video or print material.

Support / Social life / Family 10. Not talk to friends or family members on the phone.

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11. Not spend time with friends or family members. 12. Not talk to others in a social situation.Not participate in church, school, or other community activities. 13. Not seek help from a counselor, clergy, case worker, advocate or other support person or helping professional.

Household 14. Take care of the house in the way he (or she) says. 15. Buy or prepare foods in the way he (or she) says. 16. Live where he (or she) says.

Work / Economic / Resources 17. Not work. 18. Have the kind of job he (or she) says. 19. Work how much he (or she) says. 20. Spend money or use credit cards only on things he (or she) says. 21. Not learn another language (Englis h or other language). 22. Not go to school. 23. Not use the car or truck. 24. Not use or see the checkbook or other financial records.

Children / Parenting 25. Take care of children in the way he (or she) says. 26. Discipline children in the way he (or she) says. 27. Not make decisions concerning the children on your own.

Health 28. Not take certain medicatio n or go to the doctor. 29. Not use birth control. 30. Have (or not have) an abortion. 31. Use drugs or alcohol.

Intimate Relationship 32. Have sex with him (or her) when he (or she) says. 33. Do sexual behaviors in the way he (or she) says. 34. Talk with him (or her) only when he (or she) says. 35. Spend time with him (or her) when he (or she) says. 36. Have sex with someone else when he (or she) says. 37. Not separate, leave the relationship, or get a divorce.

Legal

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38. Do things that are against the law. 39. Be with him (or her) when he (or she) is doing things that are against the way (law?). 40. Carry a gun.

Follow-up Questions to Appraisal of IPV Coercion

Types of Expected Consequences for Noncompliance:

Which of the following specific types of consequences do you believe your partner would actually do (or try to do) in the future if you didn’t do what he (or she) wanted? 1 = yes 2 = no

1. Emotionally hurt you. 2. Embarrass or shame you. 3. Emotionally hurt your children. 4. Emotionally hurt your friends or family members. 5. Not let you see or talk to others. 6. Reveal personal information about you to others (medical condition, sexual preference, past behavior). 7. Physically restrain you or lock you in the house or in a room. 8. Physically hurt you. 9. Kill you. 10. Physically hurt your children. 11. Kill your child. 12. Physically hurt a friend or family member. 13. Kill a friend or family member. 14. Not let you take medication. 15. Put you in a mental hospital. 16. Not let you see your children. 17. Take your children away from you. 18. Destroyed or took your property. 19. Cause you to lose your job. 20. Cause you to lose your housing. 21. Destroy you financially. 22. Destroy legal papers. 23. Threaten you with legal trouble. 24. Have you arrested. 25. Threat to have you deported.

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Involvement of Third Parties:

Do you believe your partner would try to get any of the following people to help him (or her) do any of these hurtful things in the future? 1 = yes 2 = no

1. Police, prosecutor, judge, probation officer or someone else in the justice system 2. Minister, priest, rabbi, or other spiritual leader 3. Your partner’s friend or family member 4. Your friend or family member 5. Doctor,, nurse, counselor or someone else in health care 6. DHS-Immigration 7. IRS 8. Mafia 9. Other

Past IPV Coercion Surveillance:

In The past, has your partner checked to see if you have done what he (or she) demanded or expected? 1 = yes 2 = no

(If yes) Which of the following things did your partner do (or try to do) to check to see if you actually did what he (or she) wanted? 1. Called you 2. Check the car (odometer, where parked) 3. Asked children 4. Ask someone else (other than children) 5. Told you to report behavior to him (or her) 6. Used recorder 7. Checked clothing 8. Checked house 9. Didn’t need to check, he said or acted like he (or she) just knew 10. Other

Prior Response to Coercion:

In the past, how often did you respond in the following ways to your partner’s threat to do something hurtful if you didn’t do what he (or she) demanded or expected? 1-Not at all or never

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2-Infrequently or not very often 3-Sometimes 4-Often 5-All the time

1. Did what my partner wanted, even though I didn’t want to 2. Told myself that I wanted to do what my partner wanted, even though I origina lly didn’t want to 3. Did nothing 4. Told my partner I wasn’t going to do it 5. Tried to talk my partner out of wanting me to do it 6. Resisted doing what my partner wanted by trying to buy time 7. Sought help from someone else to resist doing what my partner wanted me to do 8. Resisted doing what my partner wanted in some other way 9. Distracted my partner so he (or she) forgot about what he (or she) wanted me to do 10. Other

Specific Consequences for Prior Noncompliance with Coercion:

In the past, which of the following specific types of consequences did your partner actually do (or try to do) when you didn’t do what he (or she) demanded or expected? 1 = yes 2 = no

1. Emotionally hurt you 2. Embarrass or shame you 3. Emotionally hurt your children 4. Emotionally hurt your friends or family members 5. Not let you see or talk to others 6. Revealed personal information about you to others (medical condition, sexual preference, past behavior) 7. Physically restrained you or locked you in the house or in a room 8. Physically hurt you 9. Tried to kill you 10. Physically hurt your children 11. Tried to kill your child 12. Physically hurt a friend or family member 13. Tried to kill a friend or family member 14. Not let you take medication 15. Put you in a mental hospital 16. Not let you see your children 17. Took your children away from you

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18. Destroyed or took your property 19. Caused you to lose your job 20. Caused you to lose your housing 21. Destroyed you financially 22. Destroyed legal papers 23. Threatened you with legal trouble 24. Had you arrested 25. Threatened to have you deported

XV. Intimate Partner Violence (IPV) Threat Appraisal & Fear Scale 11

Note to Advocates and Attorneys: The following questions will be useful in VAWA self- petitioning cases providing important evidence about “extreme cruelty”. The victim’s appraisal of what is likely to happen to her in the future is founded upon the basis of coercion, threats, intimidation, isolatio n and the abuse she has experienced in the past. In VAWA cancellation and suspension cases this scale can contribute important information to prove “extreme hardship”. In U visa cases this scale provides information central to building your case for substantial harm, and obtaining inadmissibility waivers. All VAWA and U visa cases are forms of humanitarian relief, the following factors can be used to convince DHS that the risk of harm to your client is real. This can help obtain fee waivers and can help strengthen all aspects of the victim’s case in which the victim must convince DHS to exercise its discretion in the victim’s favor.

Script: I’m going to ask you how likely you think it is that your partner will do certain things in the next year. For each statement, point to the place on the scale between “Not At All’ and “Definitely” that shows how likely you think it is that the event will happen. There is no right or wrong answer; just the way you feel. Do you have any questions before we begin?

In the next year, how likely do you think it is that your partner will…

Some High Not at all Definitely Likelihood Likelihood Threaten to harm you physically Actually physically harm you Force you to have sex against your will Try to kill you Control or dominate you Embarrass you Take away your money Tell you s/he will physically harm someone you know, such as friends, co- workers, parents, etc.

11 Dutton et al., Intimate Partner Violence (IPV) Threat Appraisal and Fear Scale, (2001).

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Actually physically harm someone you know, such as friends, co-workers, parents, etc. Call immigration authorities to get you in trouble Call police to get you in trouble Throw or lock you out of the house or room Destroy your property or important documents Violate a protective order Track you down or find you Try to take away, get custody, or kidnap your child or children Not sponsor, petition for green card or visa for you or your children

XVI. Identification of Trauma Related Distress12

Note to Advocates and Attorneys: VAWA cases are strengthened when the victim describes in her story not only the events that happened to her, but can also describe the effects that the battering or extreme cruelty had on her. The following questions help prove extreme cruelty, extreme hardship and substantiate evidence of battery, and the range of forms of physical and sexual violence occurring in the abusive relationship. In U visa cases, the following questions provide strong evidence of substantial harm as a result of victimization by the crimina l activit(ies). These are items included in the list below are will help advocates and attorneys identify and describe trauma related distress more fully in the victim’s application for immigration relief.

Instruction to patient: Below is a list of problems and complaints that veterans sometimes have in response to stressful life experiences. Please read each one carefully, put an “X” in the box to indicate how much you have been bothered by that problem in the last month.

Not at A little Moderately Quite a Extremely No. Response: all (1) bit (2) (3) bit (4) (5)

12 This list is being included to assist advocates and attorneys working with immigrant survivors in identifying trauma related distress factors that victims may have experience. This is taken from the PCL-5 (DCM –V). PCL-5 (8/14/2013) Weathers, Litz, Keane, Palmieri, Marx,& Schnurr -- National Center for PTSD. While the facts that this measure collects can be extremely helpful to VAWA, T and U visa immigration cases in a variety of ways, advocates and attorneys should not use this measure to make conclusions whether not a client has any particular mental health diagnosis. Only experienced mental health professionals are qualified to make mental health diagnoses. VAWA, T and U visa immigration cases are decided on the facts of the crime victimization and the effects on the victim; mental health diagnosis is not required. When persons other than mental health professionals attempt to draw conclusions as to mental health diagnosis based on this or any other measure incorrect diagnosis by untrained professionals can undermine credibility of the victim’s immigration case.

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1. Repeated, disturbing, and unwanted memories of the stressful experience?

2. Repeated, disturbing dreams of the stressful experience? 3. Suddenly feeling or acting as if the stressful experience were actually happening again (as if you were actually back there reliving it)? 4. Feeling very upset when something reminded you of the stressful experience?? 5. Having strong physical reactions when something reminded you of the stressful experience (for example, heart pounding, trouble breathing, sweating)? 6. Avoiding memories, thoughts, or feelings related to the stressful experience? 7. Avoiding external reminders of the stressful experience (for example, people, places, conversations, activities, objects, or situations)? 8. Trouble remembering important parts of the stressful experience? 9. Having strong negative beliefs about yourself, other people, or the world (for example, having thoughts such as: I am bad, there is something seriously wrong with me, no one can be trusted, and the world is completely dangerous)? 10. Blaming yourself or someone else for the stressful experience or what happened after it?

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11. Having strong negative feelings such as fear, horror, anger, guilt, or shame? 12. Loss of interest in activities that you used to enjoy?

13. Feeling distant or cut off from other people? 14. Trouble experiencing positive feelings (for example, being unable to feel happiness or have loving feelings for people close to you)? 15. Irritable behavior, angry outbursts, or acting aggressively? 16. Taking too many risks or doing things that could cause you harm? 17. Being “super alert” or watchful or on guard? 18. Feeling jumpy or easily startled? 19. Having diffic ulty concentrating? 20. Trouble falling or staying asleep?

XVII. Patient Health Questionnaire (PHQ-9)13

Note to Advocates and Attorneys: The following questions provide an additional opportunity to learn how the battering or extreme cruelty and the crimina l activities committed against your client affect her ability to function in her daily life. This can provide strong evidence of extreme cruelty in VAWA self-petitioning cases as well as evidence for fee and inadmissibility waivers, includ ing the domestic violence victim waiver for good moral character purposes. In U visa cases these questions provide additional and powerful evidence of substantial harm that goes beyond physical injuries. This evidence is important for obtaining inadmissibility and fee waivers for U visa cases. In all cases this evidence and the evidence provided by the Trauma related Distress Checklist can provide evidence to secure fee waivers in applications for work authorization.

13 PHQ9 Copyright © Pfizer Inc. All rights reserved. Reproduced with permission. PRIME-MD ® is a trademark of Pfizer Inc. This list is being included to assist advocates and attorneys working with immigrant survivors in identifying symptoms of distress or depression that may have experienced. While the facts that this measure collects can be extremely helpful to VAWA, T and U visa immigration cases in a variety of ways, advocates and attorneys should not use this measure to make conclusions whether not a client has any particular mental health diagnosis. Only experienced mental health professionals are qualified to make mental health diagnoses.

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Over the last 2 weeks, how often have you been bothered by any of the following problems? (use “X” to indicate the answer) More than Not at Several Nearly every half of the all days day days 1. Little interest or pleasure in doing things 0 1 2 3 2. Feeling down, depressed, or hopeless 0 1 2 3 3. Trouble falling or staying asleep, or 0 1 2 3 sleeping too much 4. Feeling tired or having little energy 0 1 2 3 5. Poor appetite or overeating 0 1 2 3 6. Feeling bad about yourself – or that you are a failure or have let yourself or your 0 1 2 3 family down 7. Trouble concentrating on things, such as reading the newspaper or watching 0 1 2 3 televis io n 8. Moving or speaking so slowly that other people have noticed. Or the opposite – 0 1 2 3 being so fidgety or restless that you have been moving around a lot more than usual 9. Thoughts that you would be better off 0 1 2 3 dead or of hurting yourself Add columns : Total: 10. If you checked off any problems, how Not diffic ult at all diffic ult have these problems made it for Somewhat diffic ult you to do work, take care of things at Very diffic ult home, or get along with other people? Extremely diffic ult _

XVIII. Stressful Life Events Screening Questionnaire (SLESQ)14

The SLESQ is helpful to uncover multip le types of trauma exposure. Let the client know that the following questions refer to events that may have taken place at any point in his/her entire life, includ ing early childhood. If an event or ongoing situatio n occurred more than once, please record all pertinent information about additional events. FIRST, go through the events and simply ask the Yes/No question as to whether the events have occurred. SECOND, make a reasoned decision as to whether for questions answered “yes” greater detail is necessary and important for the application. If so, follow the prompts to record detail.

Note to Lawyers and Advocates: The following questions can provide information that in

14 Goodman, L., Corcoran, C., Turner, K., Yuan, N., & Green, B. (1998). Assessing traumatic event exposure: General issues and preliminary findings for the Stressful Life Events Screening Questionnaire. Journal of Traumatic Stress, 11(3), 521-542.

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VAWA cases may provide additional evidence of battering or extreme cruelty. In U visa cases the information gathered below could provide helpful information for substantial harm and inadmissibility waivers. These questions may also in both VAWA and U visa cases uncover additional incidents of abuse or crimina l activities that will strengthen your VAWA or U visa case.

yes no Trauma Question Prompts for More Detailed 1. Have you ever had a life-threatening • If yes, at what age? illness? • Duration of Illness • Describe specific illness 2. Were you ever in a life-threatening • If yes, at what age? accident? • Describe accident • Did anyone die? Who? (Relationship to you) • What physical injur ies did you receive? • Were you hospitalized overnight? 3. Was physical force or a weapon ever • If yes, at what age? used against you in a robbery or • How many perpetrators? mugging? • Describe physical force (e.g., restrained, shoved) or weapon used against you • Did anyone die? Who?_ • What injuries did you receive? • Was your life in danger? 4. Has an immediate family me mbe r, • If yes, how old were you? romantic partner, or very close • How did this person die? friend died because of accident, • Relationship to person lost homicide, or suicide? • In the year before this person died, how often did you see/have contact with him/he r? • Have you had a miscarriage? If yes, at what age?

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5. At any time , has anyone (parent, • If yes, at what age? other family me mbe r, romantic • If yes, how many times? partner, stranger or someone else) • If repeated, over what period? ever physically forced you to have • Who did this? (Specify stranger, intercourse, or to have oral or anal parent sex against your wishes, or when you were helpless, such as being asleep or intoxicated? 6. Other than experiences mentioned • If yes, at what age? in earlier questions, has anyone ever • If yes, how many times? touched private parts of your body, • If repeated, over what period?

made you touch their body, or tried • Who did this? (Specify sibling, to make you to have sex against your date, etc.) wishes? • What age was this person? • Has anyone else ever done this to you? 7. When you were a child, did a parent, • If yes, at what age caregiver or other person ever slap • If yes, how many times? you repeatedly, beat you, or • If repeated, over what period? otherwise attack or harm you? • Describe force used against you (e.g., fist, belt) • Were you ever injured? If yes, describe • Who did this? (Relationship to you) • Has anyone else ever done this to you? 8. As an adult, have you ever been • If yes, at what age? kicked, beaten, slapped around or • If yes, how many times? otherwise physically harme d by a • If repeated, over what period? romantic partner, date, family • Describe force used against you me mbe r, stranger, or someone else? (e.g., fist, belt) • Were you ever injured? If yes, describe • Who did this? (Relationship to you) • If sibling, what age was he/she • Has anyone else ever done this to you?

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9. Has a parent, romantic partner, or • If yes, how many times? family member repeatedly ridiculed • If repeated, over what period? you, put you down, ignored you, or • Who did this? (Relationship to you) told you were no good? • If sibling, what age was he/she • Has anyone else ever done this to you? 10. Other than the experiences already • If yes, how many times? covered, has anyone ever threatened • If repeated, over what period? you with a weapon like a knife or • Describe nature of threat gun? • Who did this? (Relationship to you) • Has anyone else ever done this to you? 11. Have you ever been present when • If yes, at what age? another person was killed? Seriously • Please describe what you witnessed

injured? Sexually or physically • Was your own life in danger? assaulted? 12. Have you ever been in any other • If yes, at what age? situation where you were seriously injured or your life was in danger (e.g., involved in military combat or living in a war zone)? 13. Have you ever been in any other • If yes, at what age? situation that was extremely • Please describe frightening or horrifying, or one in which you felt extremely helpless, that you haven't reported? The interviewer should determine if the respondent is reporting the same incident in multiple questions, and should record it in the most appropriate category.

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Attachment 5

Attachment 6 Understanding Child Trauma

Child trauma occurs more than you think.

Each year, the number of youth requiring hospital More than TWO THIRDS OF CHILDREN reported at least 1 treatment for physical assault-related injuries traumatic event by age 16.1 Potentially traumatic events include: would fillEVERY SEAT IN 9 STADIUMS.3

PSYCHOLOGICAL, PHYSICAL, OR SEXUAL ABUSE

COMMUNITY OR SCHOOL VIOLENCE

WITNESSING OR EXPERIENCING DOMESTIC VIOLENCE

NATURAL DISASTERS OR TERRORISM

COMMERCIAL SEXUAL EXPLOITATION

SUDDEN OR VIOLENT LOSS OF A LOVED ONE

REFUGEE OR WAR EXPERIENCES

MILITARY FAMILY-RELATED STRESSORS (E.G., DEPLOYMENT, PARENTAL LOSS OR INJURY)

PHYSICAL OR SEXUAL ASSAULT 1 IN 4 HIGH SCHOOL STUDENTS was in at least 1 PHYSICAL FIGHT.4 NEGLECT

SERIOUS ACCIDENTS OR LIFE-THREATENING ILLNESS 1 in 5 high school students was bullied at school; 1 IN 6 EXPERIENCED The national average of child abuse and neglect victims in CYBERBULLYING.5 2013 was 679,000, or 9.1 victims per 1,000 children.2

19% of injured and 12% of physically ill youth have post-traumatic stress disorder.6

More than half of U.S. families have been 1,000 affected by some type of disaster 54%( ).7

1 Copeland, W.E., Keeler G., Angold, A., & Costello, E.J. (2007). Traumatic Events and Posttraumatic Stress in Childhood. Archives of General Psychiatry. 64(5), 577-584. 2 U.S. Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families, Children’s Bureau. (2015). Child maltreatment 2013. http://www.acf.hhs.gov/sites/default/files/cb/cm2013.pdf 3,4,5 National Center for Injury Prevention and Control: Division of Violence Protection (2014). Taking Action to Prevent Youth Violence: A Companion Guide to Preventing Youth Violence: Opportunities for Action. http://www.cdc.gov/violenceprevention/youthviolence/pdf/opportunities-for-action-companion-guide.pdf 6 Kahana, S., Feeny, N. C., Youngstrom, E. R., & Drotar, D. (2006). Posttraumatic stress in youth experiencing illnesses and injuries: An exploratory meta-analysis. Traumatology, 12, 148-161. doi: 10.1177/1534765606294562 7 Save The Children (2014). 2014 National Report Card on Protecting Children in Disasters. http://www.savethechildren.org/atf/cf/%7B9def2ebe-10ae-432c-9bd0-df91d2eba74a%7D/SC-2014_DISASTERREPORT.PDF Understanding Child Trauma

It’s important to recognize the signs of traumatic stress and its short- and long-term impact.

The signs of traumatic stress may be different in each child. Young children may react differently than older children.

“I’M A PRESCHOOL CHILDREN “NO ONE UNDERSTANDS ME.” ¬¬ Fear being separated from their parent/caregiver ¬¬ Cry or scream a lot BAD ¬¬ Eat poorly or lose weight KID.” ¬¬ Have nightmares “IT’S ALL FAULT.” ELEMENTARY SCHOOL CHILDREN MY ¬¬ Become anxious or fearful ¬¬ Feel guilt or shame ¬¬ Have a hard time concentrating ¬¬ Have difficulty sleeping “IS SOMETHING WRONG WITH ME?” MIDDLE AND HIGH SCHOOL CHILDREN ¬¬ Feel depressed or alone ¬¬ Develop eating disorders or self-harming behaviors ¬¬ Begin abusing alcohol or drugs ¬¬ Become involved in risky sexual behavior

IMPACT OF TRAUMA THE BODY’S ALARM SYSTEM The impact of child traumatic stress can last well Everyone has an alarm system in their body that beyond childhood. In fact, research has shown is designed to keep them safe from harm. When that child trauma survivors may experience: activated, this tool prepares the body to fight ¬¬ Learning problems, including lower grades or run away. The alarm can be activated at any and more suspensions and expulsions perceived sign of trouble and leave kids feeling scared, angry, irritable, or even withdrawn. ¬¬ Increased use of health and mental health services HEALTHY STEPS KIDS CAN TAKE ¬¬ Increased involvement with the child TO RESPOND TO THE ALARM: welfare and juvenile justice systems

¬¬ Recognize what activates the alarm ¬¬ Long-term health problems and how their body reacts (e.g., diabetes and heart disease) ¬¬ Decide whether there is real trouble and seek help from a trusted adult TRAUMA is a risk factor for nearly all behavioral health and substance use disorders. ¬¬ Practice deep breathing and other relaxation methods Understanding Child Trauma

There is hope. Children can and do recover from traumatic events, and you play an important role in their recovery.

Not all children experience child traumatic stress after experiencing a traumatic event. With support, many children are able to recover and thrive. “I AM “I AM A GOOD KID WHO As a caring adult and/or family member, you play STRONG.” HAD A BAD THING HAPPEN.” an important role.

REMEMBER TO:

“IT’S NOT MY FAULT.” Assure the child that he or she is safe. “PEOPLE CARE ABOUT ME.” Explain that he or she is not responsible. Children often blame themselves for events that are completely out of their control.

Be patient. Some children will recover quickly while others recover more slowly. Reassure them that they do not need to feel guilty or bad about any feelings or thoughts.

Seek the help of a trained professional. When needed, a mental health professional trained in evidence-based trauma treatment can help children and families A CRITICAL PART OF CHILDREN’S RECOVERY IS cope and move toward recovery. Ask your pediatrician, family physician, school HAVING A SUPPORTIVE CAREGIVING SYSTEM, counselor, or clergy member for a referral. access to effective treatments, and service systems that are trauma informed. Visit the following websites for more information: ¬¬ http://www.samhsa.gov/child-trauma ¬¬ http://www.samhsa.gov/trauma-violence GET HELP NOW https://findtreatment.samhsa.gov ¬¬ http://www.nctsn.org http://nctsn.org/resources/get-help-now http://www.healthcaretoolbox.org

SAMHSA’s mission is to reduce the impact of substance abuse and mental illness on America’s communities. SMA-15-4923 Printed 2016

Attachment 7 clpABA Child Law Practice

Vol. 33 No. 10 October 2014 CLP Online: www.childlawpractice.org TRAUMA IN PRACTICE Establishing a Trauma-Informed Lawyer-Client Relationship (Part One) Talia Kraemer and Eliza Patten

s a lawyer for youth, you know many of your clients have others. Trauma thus impacts basic Aexperienced trauma, particularly those involved in the child attorney-client interactions, such welfare or juvenile justice systems. Trauma can affect the most fun- as interviewing, explaining case damental aspects of the attorney-client relationship. developments, and counseling and advising clients on case-related Even though most lawyers are not difficult to build trust and actively decisions. mental health professionals, a working involve the client with her legal ■■ Modeling positive relationships. understanding of trauma, including its case. By learning to build relation- Youth who have experienced origins and its impacts, can be help- ships that better respond to the trauma, particularly in the context ful in anticipating and responding to needs of youth who have experi- of interpersonal relationships, of- trauma’s effects as they surface in our enced trauma, you can improve ten expect new relationships to re- work with clients. client engagement and fulfill inforce negative beliefs they have This two-part article presents your mandate as the child’s developed about themselves and strategies for building stronger, more representative.1 others; for example, that they are trauma-informed attorney-client rela- ■■ Attorney-client interactions. inherently unlikeable or “bad,” or tionships with youth. Childhood trauma can affect a that adults are untrustworthy and Why focus on the attorney-client person’s cognitive and psychoso- will inevitably hurt them. Many relationship? cial development, including experts agree that one of the best ■■ Client trust and engagement. A how one thinks, processes infor- paths to healing for traumatized client’s trauma history can make it mation, and communicates with (Cont’d on p. 198)

Defining “Trauma” What’s Inside: Trauma “results from an event, series of events, or set of circumstances that is experienced by an individual as physically or emotionally harmful 194 CASE LAW UPDATE or threatening and that has lasting adverse effects on the individual’s func- 203 RESEARCH IN BRIEF tioning and physical, social, emotional, or spiritual well-being.” (Substance Abuse and Mental Health Services Administration, Trauma Definition, 204 ABUSE & NEGLECT www.samhsa.gov/traumajustice/traumadefinition/definition.aspx) Interpersonal Violence: A Global View Complex Trauma “describes both children’s exposure to multiple traumatic 206 SPOTLIGHT: IMMIGRATION events, often of an invasive, interpersonal nature, and the wide-ranging, Applying the ICE Parental long-term impact of this exposure. These events are severe and pervasive . . . Interests Directive to Child [and] usually begin early in life.” (National Child Traumatic Stress Network, Welfare Cases Complex Trauma, www.nctsn.org/trauma-types/complex-trauma) 207 IN PRACTICE Questioning School-Aged For a thorough discussion of the definition of trauma, see “Understanding Trauma and its Impact on Child Victims,” by Eva Klain in the September 2014 CLP. Children

193 CLP Online —www.childlawpractice.org Internet: http://www.childlawpractice.org Vol. 33 No. 10 (Cont’d from front page) other resources and mental health pro- controlling their emotions. The parts youth can be to develop positive, fessionals working directly with your of their brains that remain alert to safe relationships.2 Like all pro- clients to better understand the impact threat have been constantly turned on, fessionals who work with these of a client’s experiences with trauma. while they may have had less opportu- youth, lawyers can either aid in nity to develop self-regulation skills. the client’s healing or magnify a Building Relationships They often feel overwhelmed by their client’s vulnerabilities. Impaired sense of safety. Traumatized emotions and simultaneously lack youth often have an impaired sense of tools for calming themselves down. To Not all court-involved youth have safety. Having been exposed to acute or others, they can appear out of control experienced trauma, and reactions to chronic threat—such as maltreatment, or overly impulsive.10 trauma vary among those who have. neglect, or community or domestic Some youth experience few or no violence—they may perceive even Lack of trust. Building trust is a for- long-term effects of trauma. Draw- neutral environments as threatening, midable task, particularly with youth ing on the public health principle of and their brains are primed to go into who have been exposed to violence “universal precaution,” we advocate “survival” mode. Although youths’ or trauma in the context of intimate adopting a trauma-informed approach survival-oriented behaviors are natural relationships.11 These youth have to all client relationships, seeking, at and healthy in the face of real danger, learned that adults cannot keep them minimum, to “do no harm.” At best, they become maladaptive in nonthreat- safe, do not attend to their needs, and lawyers can communicate with and ening social contexts.6 These behaviors may harm them. They are more likely counsel their clients more effectively, might be how the youth functions day to be hyperalert in social interactions achieve more authentically client-di- in and day out (i.e., their baseline level and to misread facial or verbal cues as rected representation, and help clients of functioning), or youth might exhibit negative.12 When building new rela- move beyond their trauma to healthy them when something, consciously tionships, youth who have experienced 3 developmental paths. or unconsciously, reminds them of a interpersonal trauma may try to push past trauma. This latter phenomenon is the adult away or provoke an adverse Challenges of Trauma- known as triggering, and the thing that response. The youth may be modeling Informed Lawyering prompted the survival response is often how she has been treated in past rela- Childhood trauma affects how a referred to as a trauma “trigger.”7 tionships or trying to achieve control young person perceives and interacts Youths’ survival behaviors vary. by bringing about negative treatment with the world around her. Trauma’s Youth may become “hyperaroused,” a that she considers inevitable.13 Clients impact is not only psychological, but state of heightened energy and alertness may engage in behaviors to “test” also physiological: children’s brains, to threat. Clients who are hyperaroused whether you will ultimately disappoint incomplete at birth, develop in ways might appear jumpy, have frequent and reject them, as other adults have that respond to the child’s experiences outbursts, or become confrontational or done. with traumatic stress.4 Clients who aggressive.8 Another common response experience these responses may think is “dissociation”—mentally shutting Communication and Counseling and behave in ways that make it more down, becoming numb, or having Information processing. Youth impact- challenging for the lawyer to build “gone elsewhere.” Youth may also deal ed by trauma may have trouble with trust, communicate effectively, and with perceived threats by altering their information processing and receptive engage the client in making decisions behavior and daily patterns to avoid re- language. Primarily focused on safety about her legal case. minders of past trauma.9 and survival, they may miss much of This section draws on knowledge what is said to them, either because from the mental health and medical Dissociation can be harder to recognize they are on the lookout for threat or fields to describe common effects of than hyperarousal but can still create because they are dissociated.14 A client childhood trauma. Keep in mind that challenges when building attorney- may repeatedly glance at the door, trauma’s impact on a young person client relationships. For example, a dis- jump each time the phone rings, or varies, depending on the type of trau- sociated client may seem indifferent to seemingly daydream instead of follow- ma experienced, whether the trauma the legal proceedings or to the lawyer’s ing your questions and explanations. was isolated or repeated, the age at efforts at counseling. Avoidance may which the trauma was experienced, lead a client to start skipping appoint- Impaired self-expression. Clients the young person’s gender and cul- ments, causing frustration and logisti- may also have trouble expressing tural identity, and the caregiving and cal challenges for the lawyer. themselves. Dr. Susan Craig explains social supports available to the young that instability in early childhood can person before and after the traumatic Controlling emotions. Children ex- impair the development of sequential events.5 We encourage you to consult posed to trauma can have trouble memory, whereby children learn to 198 CLP Online —www.childlawpractice.org Vol. 33 No. 10 organize and remember information Building Better Attorney- ency also helps distinguish your and experience in a linear fashion.15 Client Relationships relationship from past relation- Further, youth who are neglected or A strong working relationship is key ships the client may have had that maltreated often have less exposure to to effectively represent youth who were characterized by secrets or verbal language in their early relation- have experienced trauma. In addition mystification. ships. In particular, talk tends to be to facilitating traditional lawyering 2. Predictability – Repeatedly instrumental, rather than focused on functions, discussed further in part preview for the client what is to expressing feelings and needs.16 These two of this article, building strong come, both in the attorney-client deficits can make it harder for youth to relationships with traumatized cli- relationship and in the broader construct clear narratives or verbally ents has value in and of itself. While legal process. For example, express their emotions.17 maintaining perspective about your regularly preview upcoming case Youth may also have grown up in relative importance and place in your milestones, decisions the client homes where secrets are common and clients’ lives, also recognize that all will have to make, and events the disclosure is discouraged, inhibiting positive relationships can be restor- client will need to attend, such as the youth’s comfort speaking up about ative, allowing a young person gradu- court hearings or meetings. Create experiences. Overall, a client’s experi- ally to change negative beliefs she has routines with the client, such as ences with trauma can create many developed about herself, how she can always holding meetings on the barriers to getting a smooth or reliable expect to be treated by others, or what same day or in the same place. Be- narrative from the client. Instead, law- 21 is possible for her. cause of their heightened alertness yers may find that clients’ narratives to threat, youth who have experi- involve long, confusing discourses, in- Adopting a Trauma-Informed enced trauma often have difficulty clude gaps in recall, or appear split off with the unfamiliar or unexpected, from emotion.18 “Stance” Trauma-informed lawyering is not a whereas predictability and routine can help them feel safe. Difficulty sharing trauma histories. step-by-step formula. In part, it rests Challenges arise when clients are upon characteristics intrinsic to all 3. Client Control – Give clients asked to discuss matters directly relat- positive human relationships: empathy, a voice in decisions that affect ing to their trauma histories. Youth responsive listening, restraint from them, in a way that is purpose- may be hesitant to share their experi- judgment, demonstration of authentic ful and exceeds baseline ethical ences because adults have told them care and concern. At the same time, requirements. Actively empower not to talk about their traumas or, lawyers should incorporate changes the client to exercise her agency when the youth did, shut them down into their practice that respond to by validating the client’s strengths or rejected their accounts as untrue. the vulnerabilities common among and helping her develop decision- Clients may also keep quiet out of traumatized youth. Drawing on a making and related life skills. shame, feeling they bear responsibil- framework recommended by Dr. John These efforts counteract feelings ity or “deserved it,” or out of loyalty Sprinson, we suggest lawyers begin by of powerlessness caused by past to family or others involved in their adopting a trauma-informed “stance”: traumas and can also provide a traumas.19 a set of principles that inform your sense of mastery, which research interactions with your client at all shows is critical for healthy devel- Decision making. Trauma’s cognitive times. These principles seek to avoid opment post trauma. impacts may also affect how youth exacerbating the client’s impaired 4. Reliability – Be reliable, always approach case-related decision mak- sense of safety, difficulty with trust, following through on responsibili- ing. Children exposed to violence and negative beliefs about herself and ties, commitments, and appoint- may have trouble understanding cause her relationships with others. ments. Never make a promise that and effect, having been subjected to The basic elements of a trauma- you might break. Commitment to harm without any apparent cause. informed stance are: this principle should go beyond As Dr. Craig explains, because their 1. Transparency – Be fully transpar- basic requirements of profession- own behavior has led to unpredictable ent with the client about her legal alism. A youth who has experi- responses from others, these youth case, in age-appropriate terms. enced trauma, particularly in the may not see themselves as capable of Transparency promotes trust and context of relationships, often ex- impacting outcomes and may struggle minimizes the youth’s feelings pects betrayal and disappointment with predicting consequences.20 of powerlessness—a common from others. Even minor breaks in trauma “trigger”—in the face of trust reinforce the client’s belief what is likely a bewildering or that adults are untrustworthy and overwhelming process. Transpar- potentially dangerous. 199 CLP Online —www.childlawpractice.org Vol. 33 No. 10 5. Proactive Support – Anticipate against your client’s wishes to because it helps establish boundar- issues that may arise during your avoid “blindsiding” the client and ies in the attorney-client relationship. representation and in the legal case creating a sense of betrayal. Many traumatized youth have experi- that may be distressing or desta- enced grievous violations of their per- ■■ In client-driven representation, bilizing for your client. Consult emphasize the client’s power and sonal boundaries, or have grown up in with mental health professionals agency. Many young children have environments where the lines between 23 and other adults in the client’s life trouble understanding that they, not children and adults are blurred. to identify situations that may be the adult lawyer, have decision- Establishing clear boundaries creates stressful or even “triggering,” as making power. This tendency predictability and can help the youth well as supports that will be avail- can be exacerbated in youth who feel safe. It is especially important not able to your client when needed. respond to trauma by being exces- to create a false sense that you can 6. Patience – Building connections sively compliant with adults, either rescue your client or her family, or to takes time. Despite your best out of fear that missteps might foster a dependence on you that will intentions, missteps with the client yield retribution or as symptomatic become another loss to your client when your role in her life is over. Re- call that your journey with the client Establishing clear boundaries creates predictability and can help has a beginning, middle, and an end. the youth feel safe. Preview that end from the beginning, and keep it alive throughout the rela- are certain. You will likely disap- of a dissociative response to the tionship, as a conscious recognition point the client, and the client trauma. Clients who respond to of the limits of your availability. may blow up at you or push you trauma by acting out versus shut- away. Remain patient, present, and ting down are often seeking power Repairing Ruptures. While building available to the client. This shows and recognition. Offering them an strong client relationships, recognize that you will not desert her despite alternate way to be seen and heard that ruptures in the relationship are inevitable bumps in the relation- and have their voice respected in inevitable. Creating opportunities ship or her efforts to “test” you. the attorney-client relationship to repair those ruptures is part of may disrupt their internal belief strengthening the relationship with 24 Role Definition and Boundaries that acting out and aggression are the client. Despite best intentions, Roles. Adopting a trauma-informed the only means to obtain status and you risk doing or saying something “stance” creates the background con- recognition. that breaks the client’s trust or trig- ditions for strong client relationships. gers survival responses. Clients may ■■ Explain confidentiality and its also try to push you away, or transfer It is also crucial to have clear conver- limits. sations with the client about your role. to you feelings, such as anger or frus- This maximizes predictability and ■■ Give the client reliable information tration, that they cannot bear. If you provides a baseline against which the about your schedule, availability, can stay calm and committed, or bear client can evaluate your reliability. We and how to contact you. You do not something the client finds unmanage- suggest covering the following top- need to be available at all times to able, the client benefits from observ- ics as soon as possible with the client. be “reliable;” it is better to have ing that capacity in another. Note that it may be necessary to revisit scheduled check-ins that you are By remaining engaged and reli- conversations about your role repeat- able to keep. able, you disprove the client’s belief edly during the representation. ■■ Explore the client’s assumptions that you will abandon her or that her 25 ■■ Explain your role, services you do about the attorney-client relation- feelings are “too much” to handle. and do not provide, and what you ship. Has the client had prior at- This also shows respect for your cli- can and cannot expect to accom- torneys? What were those relation- ent’s adaptive behaviors by recogniz- plish for the client. ships like? What worked well, and ing that such adaptations were born what didn’t? By asking the client to out of self-preservation. It is not your ■■ Clarify how you differ from other role as lawyer to suggest the client adults in the client’s life and in the express her opinions about working abandon these behaviors for your legal case. with an attorney, you can better anticipate bumps in your relationship sake. ■■ Explain the client’s role and which and avoid creating a dynamic that decisions are within her control. the client feels powerless to alter in Preparing for and If you represent the client’s “best the future.22 Responding to Triggering interests,” be clear early on about Among the more severe trauma- when you might need to advocate Boundaries. Role definition is crucial related reactions you might encounter 200 CLP Online —www.childlawpractice.org Vol. 33 No. 10 over the course of the representation coordinated services as needed. the trigger again during the legal case discuss this with the client, is “triggering,” which occurs when In addition to seeking individual- as well as how it fits with your ef- something in the youth’s environment ized guidance, the following roadmap forts to help her attain her goals. activates a memory of the trauma, can guide your response if you are evoking an intense and immediate with the client when she is in a trig- ■■ Ensure the client has trusted 26 reaction from the youth. As revis- gered state.30 These recommendations adult(s) to follow up with as iting content related to a specific also apply when a client is in a lesser needed. traumatic event can be triggering, so state of emotional distress, and are ■■ If your client is willing to partici- can the effects of a traumatic event. useful when you are unsure if the cli- pate, link her to trauma-focused For example, the emotional state of ent is being “triggered.” therapy that can help her develop hyperarousal, which the client may ■■ Trust your ability to read the strategies for regulating emo- have felt while experiencing the client. If it appears your client is tions. These therapies often rely trauma, can itself be a trigger.27 Com- becoming distressed, address that on parent or caregiver involve- mon triggers include unpredictability; distress instead of simply moving ment. You can also identify caring transition; loss of control; feelings forward. adults who may be willing to of vulnerability, loneliness, or rejec- help the client build these critical ■■ When someone’s “survival brain” tion; sensory overload; confrontation; emotion-regulation skills. embarrassment or shame; intimacy; has been triggered, that turns off and even positive attention.28 While the prefrontal cortex—the brain’s most lawyers are not trained to judge reasoning center. Dr. Joyce Conclusion in a clinical sense whether a client is Dorado uses the analogy that the To create a solid foundation for being “triggered,” the following reac- “rider is off the horse.” Before working effectively with traumatized tions can be signs that a client may be doing anything else to amelio- youth, lawyers should focus on build- triggered:29 rate the situation, get the rider ing strong attorney-client relation- back on the horse. Do nothing to ships that respond to common effects 1. Jumping up or lashing out startle the young person; do not of childhood trauma. Part Two of 2. Difficulty tracking the lawyer’s be confrontational and do not this article will address strategies for questions escalate the situation. Do what interviewing and counseling trauma- 3. Difficulty making oneself clearly you can to help the youth feel tized youth and talking with them di- understood (e.g., a long tangled safe and in control. Give gentle rectly about their trauma experiences. narrative) reminders that the youth is safe, Eliza Patten, JD, CWLS, is a senior 4. The client gives a brief, clipped you are here, and you will wait staff attorney at Legal Services for narrative, or claims not to for her to tell you when she is Children, San Francisco, CA. Talia remember. ready. Once the rider is back “on the horse,” you can ask what led Kraemer, JD, is a fellow (2012-2013) 5. The client shuts down, develops a to her distress.31 at Legal Services for Children, San flat affect, becomes lost in the con- Francisco, CA. versation, can’t remember what ■■ Tell the client her reactions to she was talking about, or appears trauma are normal. There is not Special thanks to John Sprinson, PhD, and to have “gone somewhere else.” something “wrong” with her. Gena Castro Rodriguez, LMFT, for their time and collaboration. John invested many hours 6. Regressive behaviors (e.g., thumb ■■ Tell the client you will watch for signs that she is becoming upset training the staff at Legal Services for Chil- sucking) dren and reviewing our draft recommenda- in the future, to help her antici- 7. With the client’s consent, con- tions for trauma-informed legal services. Gena pate and ward off those moments. sult mental health providers and developed a trauma training for attorneys in In so doing, you counter past the San Francisco Bay Area and also invested other adults in your client’s life to relationships the youth may have considerable time discussing and reviewing understand what things are known had with adults who were not at- our draft recommendations. We also thank to trigger your client and how your Susan Craig, PhD, Frank Vandervort, JD, and tuned to her needs. client reacts (and subsequently Jessica Feierman, JD, for their invaluable recovers) when triggered. Ide- ■■ Prepare for the next time you feedback. ally, each client who comes into are going to confront the trigger. contact with the legal system Thank the client for letting you This article is one in a series produced under a grant from the Office for Victims of Crime, should receive appropriate as- know she was uncomfortable, and tell her she can let you know Office of Justice Programs, U.S. Depart- sessments of her present level of ment of Justice. The opinions, findings, and functioning, trauma history, needs, next time she is getting upset. If conclusions or recommendations expressed and strengths, and have access to it will be necessary to confront in this article those of the contributors and do

201 CLP Online —www.childlawpractice.org Vol. 33 No. 10 not necessarily represent the official position 14. Cole et al., 2005, 21-24; Craig, 2008, 51- child with experiences in relationships that or policies of the U.S. Department of Justice 52. are different from those encountered in past or ABA. 15. Craig, 2008, 26-27. relationships and to support the child in very gradually constructing a new model of how 16. Cole et al., 2005, 25. Endnotes these relationships might unfold.” Sprinson & 17. Craig, 2008, 47-48. Berrick, 2010, 57-59. 1. This article focuses on the traditional 18. lawyer-client role; however, the Dr. John Sprinson, Training at Legal 22. Sprinson Training 2/8/13. recommendations also apply to lawyers who Services for Children, Feb. 8, 2013 (on file 23. Sprinson & Berrick at 7; Craig, 2008, 90. with authors) (“Sprinson Training 2/8/13”). practice in jurisdictions where their role is a 24. Sprinson & Berrick, 2010, 47. modified lawyer role requiring representation 19. Sprinson Training 2/8/13. 25. Sprinson Training 2/8/13. of the child client’s “best interests.” 20. Craig, 2008, 22-24. 26. Craig, 2008, 100-01. 2. Vandervort, Frank E., Jim Henry & Mark 21. As Sprinson and Berrick explain, “Children Sloane. Building Resilience in Foster Children: . . . are actively construing their experience and 27. Ibid. The Role of the Child’s Advocate, 2012, 11; working to construct images of what drives 28. Dorado, Joyce. Healthy Environments and Cole, Susan F., et al. Helping Traumatized the behavior of others, of who they are in Response to Trauma in Schools (HEARTS), Children Learn: Supportive School relation to others, and of what they can expect University of California San Francisco (UCSF). Environments for Children Traumatized by in the future. . . . [A] child who has suffered a Promoting School Success for Students Who Family Violence, 2005, 38-39. pattern of sustained hurtful early experiences Have Experienced Complex Trauma: Creating 3. Attorneys familiar with guidance on such as loss, neglect, or abuse will have a way Trauma-Sensitive School Environments, 2013, lawyering for children may recognize that of representing the self and the world that is 29 (on file with authors). some of our recommendations mirror that consistent with or reflects that experience. 29. Dr. John Sprinson, Training at Legal guidance. Some proposals may already She may believe she is bad, damaged, or in Services for Children, Feb. 22, 2013 (on file be considered good practice in light of some way deserving of this treatment and will with authors). expect the treatment to continue. . . . These considerations about child and adolescent 30. We are grateful to Dr. John Sprinson and ideas are not easy to revise in the face of new development, the context in which lawyers Gena Castro Rodriguez for their assistance in experience and are especially resistant to and/or other public officials find themselves compiling these recommendations. involved in the private sphere of the family, or alteration by language.” Thus, adults working 31. Dorado, 2013, 36, 39. attorney ethics requirements. We restate them with these youth should “work to provide the here to introduce trauma as another motivation for those practices. 4. Jack P. Shonkoff et al. The Lifelong Effects NEW IN PRINT of Early Childhood Adversity and Toxic Stress, 2012, e235-38; American Academy New Book on Reasonable Efforts of Pediatrics. Helping Foster and Adoptive Families Cope with Trauma, 2013, 2-4 Judge Leonard Edwards, a former California (“AAP”). child welfare judge for over two decades, 5. Vandervort et al., 2012, 3; Bassuk, Ellen has released a book on reasonable efforts in child L., Kristina Konnath & Katherine T. Volk. welfare cases: Reasonable Efforts: A Understanding Traumatic Stress in Children, Judicial Perspective. 2006, 3. 6. AAP, 2013, 8; Craig, Susan E. Reaching The book comes from the view of a judicial and Teaching Children Who Hurt, 2008, 98- officer in a dependency court. It explains the 99; Kinniburgh, Kristine et al. “Attachment, judge’s role and how reasonable efforts can be a Self-Regulation, and Competency.” Psychiatric Annals, 2005, 427-28. tool in providing oversight of prevention, reunification, and other perma- nency options. 7. Craig, Susan E. Reaching and Teaching Children Who Hurt, 2008, 100. The book explains the history and current state of the law, includ- 8. AAP, 2013, 8; Perry, Bruce D. Effects ing legal requirements for findings at different stages, aggravated cir- of Traumatic Events on Children: An cumstances, and state statutory and case law on reasonable efforts. It Introduction, 2003, 2-5; Vandervort, 2012, 4. examines reasonable efforts in common contexts, including inadequate 9. AAP, 2013, 8; Perry, 2003, 7-8; Vandervort housing, poverty, visitation, domestic violence, substance abuse, mental et al., 2012, 4. health, engaging fathers and relatives, and incarcerated parents. 10. AAP, 2013, 12; Craig, 2008, 98-99; Kinniburgh et al., 2005, 427-28. Tips and tools around best practices focus on quality legal representa- 11. Craig, 2008, 96. tion, frontloading services, and cultural competence. Tools in the appen- dices include sample forms and benchcards. 12. Kinniburgh et al., 2005, 428. 13. Craig, 2008, 90; Sprinson, John & Ken Berrick. Unconditional Care: Relationship- Order from the National Council of Juvenile and Family Court Judges, Based, Behavioral Intervention with Cheryl Davidek, [email protected], 775/784-6012. The book is free Vulnerable Children and Families, 2010, but there is a fee for shipping and handling. 58-59.

202 CLP Online —www.childlawpractice.org Vol. 33 No. 10

Attachment 8

Dear Judge:

We are pleased to share the NCTSN Bench Card for the Trauma Informed Judge—an official product of the National Child Traumatic Stress Network’s Justice Consortium in cooperation with the National Council of Juvenile and Family Court Judges. Designed by judges, lawyers, and behavioral health professionals, this card will assist you in your work with youth who struggle with traumatic stress.

Many court-involved youth have been exposed to traumatic events. They present with problems that require professional assistance to modify their behavior and protect the community. Strong connections have been made between early exposure to trauma and “derailed” child development. Traumatic experiences change the brain in ways that cause youth to think, feel and behave differently.

Trauma impacts many important court decisions, among them: . temporary placement or custody, . detention or hospitalization, . residential or community based treatment, . treatment and referrals to health and behavioral health services, . transfers to adult criminal court, . termination of parental rights and adoption, . restoration and treatment for child victims, . visitation with maltreating adults or jail/prison visitation.

For many traumatized children, the judge serves as the crucial professional to direct them to proper treatment. The good news is that, when properly treated through trauma-informed, evidence-based treatment, children can recover.

As a judge, we know you must balance your responsibilities to protect the public and restore victims while also trying to change the destructive life course of a struggling child or an offending teen. Judges know that failure to make such changes can lead to youths who become adults involved in the justice system. Judges often see those adults raise new generations who also appear in court—the outcome of the uninterrupted, intergenerational transmission of traumatic stress.

Enclosed are two bench cards. The first offers a series of questions to help you, as a judge, gather information necessary to make good decisions for children at risk of traumatic stress disorders. The second is a sample addendum designed to be copied or scanned and attached to your orders for behavioral health assessments. It will help mental health professionals develop reports that are trauma informed, admissible into evidence, and informative to you.

We hope that you find the bench cards to be helpful in your work with youth. For additional information and other trauma resources for judges and attorneys, please see http://www.nctsn.org/resources/topics/juvenile-justice- system

Should you have questions regarding the information contained in the cards, please contact Dr. James Clark at [email protected] or the NCTSN at [email protected]

Sincerely, The NCTSN Justice Consortium NCTSN BENCH CARD for the trauma-informed judge

Research has conclusively demonstrated that court-involved children and adolescents present with extremely high rates of traumatic stress caused by their adverse life experiences. In the court setting, we may perceive these youth as inherently disrespectful, defiant, or antisocial, when, in fact, their disruptive behavior may be better understood in the context of traumatic stress disorders. These two Bench Cards provide judges with useful questions and guidelines to help them make decisions based on the emerging scientific findings in the traumatic stress field. These cards are part of a larger packet of materials about child and adolescent trauma available and downloadable from the NCTSN Trauma-Informed Juvenile Justice System Resource Site* and are best used with reference to those materials.

1. Asking trauma-informed questions can help judges identify children who need or could benefit from trauma-informed services from a mental health professional. A judge can begin by asking, “Have I considered whether or not trauma has played a role in the child’s1 behavior?” Use the questions listed below to assess whether trauma-informed services are warranted.

TRAUMA EXPOSURE: Has this child experienced a traumatic event? These are events that involve actual or threatened exposure of the child to death, severe injury, or sexual abuse, and may include domestic violence, community violence, assault, severe bullying or harassment, natural or man-made disasters, such as fires, floods, and explosions, severe accidents, serious or terminal illness, or sudden homelessness.

Multiple or Prolonged Exposures: Has the child been exposed to traumatic events on more than one occasion or for a prolonged period? Repeated or prolonged exposure increases the likelihood that the child will be adversely affected.

Outcomes of Previous Sanctions or Interventions: Has a schedule of increasingly restrictive sanctions or higher levels of care proven ineffective in this case? Traumatized children may be operating in “survival mode,” trying to cope by behaving in a defiant or superficially indifferent manner. As a result, they might respond poorly to traditional sanctions, treatments, and placements.

Caregivers’ Roles: How are the child’s caregivers or other significant people helping this child feel safe or preventing (either intentionally or unintentionally) this child from feeling safe? Has the caregiver been a consistent presence in the child’s life? Does the caregiver acknowledge and protect the child? Are caregivers themselves operating in survival mode due to their own history of exposure to trauma?

Safety Issues for the Child: Where, when and with whom does this child feel safest? Where, when and with whom does he or she feel unsafe and distrustful? Is the home chaotic or dangerous? Does a caregiver in the household have a restraining order against another person? Is school a safe or unsafe place? Is the child being bullied at school or does the child believe that he or she is being bullied?

Trauma Triggers in Current Placement: Is the child currently in a home, out-of-home placement, school, or institution where the child is being re-exposed to danger or being “triggered” by reminders of traumatic experiences?

Unusual Courtroom Behaviors: Is this child behaving in a highly anxious or hypervigilant manner that suggests an inability to effectively participate in court proceedings? (Such behaviors include inappropriate smiling or laughter, extreme passivity, quickness to anger, and non-responsiveness to simple questions.) Is there anything I, as a judge, can do to lower anxiety, increase trust, and enhance participation?

continued on back ➝ This project was funded by the Substance Abuse and Mental Health Services Administration (SAMHSA), US Department of Health and Human Services (HHS). The views, policies, and opinions expressed are those of the authors and do not necessarily reflect those of SAMHSA or HHS. 2. It is crucial to have complete information from all the systems that are working with the child and family. Asking the questions referenced below can help develop a clearer picture of the child’s trauma and assess needs for additional information.

Completeness of Data for Decisions: Has all the relevant information about this child’s history been made available to the court, including child welfare and out-of-jurisdiction or out-of-state juvenile justice information?

Inter-professional Cooperation: Who are the professionals who work with this child and family? Are they communicating with each other and working as a team?

Unusual Behaviors in the Community: Does this child’s behavior make sense in light of currently available information about the child’s life? Has the child exhibited extreme or paradoxical reactions to previous assistance or sanctions? Could those reactions be the result of trauma?

Development: Is this child experiencing or suffering from emotional or psychological delays? Does the child need to be assessed developmentally?

Previous Court Contacts: Has this child been the subject of other court proceedings? (Dependency/ Neglect/Abuse; Divorce/Custody; Juvenile Court; Criminal; Other)

Out-of-Home Placement History: How many placements has this child experienced? Have previous placements been disrupted? Were the disruptions caused by reactions related to the child’s trauma history? How did child welfare and other relevant professionals manage these disruptions?

Behavioral Health History: Has this child ever received trauma-informed, evidence-based evaluation and treatment? (Well-intentioned psychiatric, psychological, or substance abuse interventions are sometimes ineffective because they overlook the impact of traumatic stress on youth and families.)

3. Am I sufficiently considering trauma as I decide where this child is going to live and with whom?

Placement Outcomes: How might the various placement options affect this child? Will they help the child feel safe and secure and to successfully recover from traumatic stress or loss?

Placement Risks: Is an out-of-home placement or detention truly necessary? Does the benefit outweigh the potential harm of exposing the child to peers who encourage aggression, substance use, and criminal behavior that may possibly lead to further trauma?

Prevention: If placement, detention or hospitalization is required, what can be done to ensure that the child’s traumatic stress responses will not be “triggered?” (For example, if placed in isolation or physical restraints, the child may be reminded of previous traumatic experiences.)

Disclosure: Are there reasons for not informing caregivers or staff at the proposed placement about the child’s trauma history? (Will this enhance care or create stigma and re-victimization?)

Trauma-Informed Approaches: How does the programming at the planned placement employ trauma- informed approaches to monitoring, rehabilitation and treatment? Are staff knowledgeable about recognizing and managing traumatic stress reactions? Are they trained to help children cope with their traumatic reactions?

Positive Relationships: How does the planned placement enable the child to maintain continuous relationships with supportive adults, siblings or peers?

4. If you do not have enough information, it may be useful to have a trauma assessment done by a trauma-informed professional. Utilizing the NCTSN BENCH CARD FOR COURT-ORDERED TRAUMA-INFORMED MENTAL HEALTH EVALUATION OF CHILD, you can request information that will assist you in making trauma-informed decisions.

1 The use of “child” on this bench card refers to any youth who comes under jurisdiction of the juvenile court. *http://learn.nctsn.org/course/view.php?id=74 NCTSN BENCH CARD FOR COURT-ORDERED TRAUMA-INFORMED MENTAL HEALTH EVALUATION OF CHILD: SAMPLE ADDENDUM

This Court has referred this child1 for mental health assessment. Your report will assist the judge in making important decisions. Please be sure the Court is aware of your professional training and credentials. In addition to your standard psychosocial report, we are seeking trauma-specific information. Please include your opinion regarding the child’s current level of danger and risk of harm. The Court is also interested in information about the child’s history of prescribed psychiatric medications. We realize that you may be unable to address every issue raised below, but the domains listed below are provided as an evidence-based approach to trauma-informed assessment.

1. Screening and Assessment of the Child and Caregivers Please describe the interview approaches (structured as well as unstructured) used for the evaluation. Describe the evidence supporting the validity, reliability, and accuracy of these methods for children or adolescents. For screens or tests, please report their validity and reliability, and if they were designed for the population to which this child belongs. If feasible, please report standardized norms. Discuss any other data that contributed to your picture of this child. Please describe how the perspectives of key adults have been obtained. Are the child’s caregivers or other significant adults intentionally or unintentionally preventing this child from feeling safe, worthy of respect, and effective? Are caregivers capable of protecting and fostering the healthy development of the child? Are caregivers operating in “survival mode” (such as interacting with the child in a generally anxious, indifferent, hopeless, or angry way) due to their own history of exposure to trauma? What additional support/resources might help these adults help this child?

2. Strengths, Coping Approaches, and Resilience Factors Please discuss the child’s existing strengths and coping approaches that can be reinforced to assist in the recovery or rehabilitation process. Strengths might include perseverance, patience, assertiveness, organization, creativity, and empathy, but coping might take distorted forms. Consider how the child’s inherent strengths might have been converted into “survival strategies” that present as non-cooperative or even antisocial behaviors that have brought this child to the attention of the Court. Please report perspectives voiced by the child, as well as by caregivers and other significant adults, that highlight areas of hope and recovery.

3. DIAGNOSIS (Post Traumatic Stress Disorder [PTSD]) Acknowledging that child and adolescent presentations of PTSD symptoms will differ from adult presentations, please “rule-in” or “rule-out” specific DSM-V criteria for PTSD for adolescents and children older than six years, which include the following criteria: • Exposure to actual or threatened death, serious injury, or sexual violence, either experienced directly, witnessed, or learning that the event occurred to a close family member or friend (Criteria A) • Presence of intrusion symptoms such as intrusive memories, distressing dreams, flashbacks, physical reactions, trauma-specific re-enactment through play, psychological distress at exposure to cues (Criteria B) • Avoidance of stimuli or reminders associated with the traumatic event, including avoidance of internal thoughts and feelings related to the event, as well as external activities, places, people, or situations that arouse recollections of the event (Criteria C) continued on back ➝

This project was funded by the Substance Abuse and Mental Health Services Administration (SAMHSA), US Department of Health and Human Services (HHS). The views, policies, and opinions expressed are those of the authors and do not necessarily reflect those of SAMHSA or HHS. • Negative changes in cognition, mood, and expectations; diminished interest in, detachment, and estrangement from others; guilt and shame; socially withdrawn behavior; reduction in positive emotions (Criteria D) • Alterations in arousal and reactivity, including irritable or aggressive behavior, angry outbursts, reckless or self-destructive behavior, hypervigilance, exaggerated startle response, concentration problems, and sleep disturbance (Criteria E) • Exhibiting these disturbances in behavior, thoughts and mood for over a month (Criteria F) • Significant distress or impairment in relationships with parents, siblings, peers, or other caregivers or with school behavior (Criteria G) • The disturbed behavior and mood cannot be attributed to the effects of a medication, street drug, or other medical condition (Criteria H) PTSD can also be present for children ages six and younger. Criteria include exposure; intrusive symptoms, including distressing memories or play re-enactment and physiological reactions to reminders; avoidance of people, conversations or situations; negative emotional states such as fear, sadness, or confusion, sometimes resulting in constriction of play; irritable behavior and hypervigilance; and impairment in relationships with parents, siblings, peers or other caregivers.

Even if an official DSM-V diagnosis of PTSD is not warranted, traumatic stress reactions can definitely or potentially contribute to the child’s behavioral, emotional, interpersonal, or attitudinal problems. Traumatic stress reactions may contribute to problems with aggression, defiance, avoidance, impulsivity, rule-breaking, school failure or truancy, running away, substance abuse, and an inability to trust or maintain cooperative and respectful relationships with peers or adults.

4. Trauma-informed Services

Has this child ever received Trauma-Focused, Evidence-Based Treatment?*** Sometimes well-intentioned psychiatric, psychological, social work, or substance abuse evaluations and treatment are incomplete and of limited effectiveness because they do not systematically address the impact of children’s traumatic stress reactions.

The Court is interested in potential sources of trauma-informed services in your area and your thoughts about the likelihood that the child can receive those services.

In the meantime, what can be done immediately for and with the family, school, and community to enhance safety, build on the child’s strengths, and to provide support and guidance? How can this child best develop alternative coping skills that will help with emotional and behavioral self-regulation?

5. Suggestions for Structuring Probation, Community Supervision and/or Placement Options.

Structured case plans for probation, community supervision, and/or placement should consider the ability of the setting and the people involved to assist the child in feeling safe, valued, and respected. This is especially important for traumatized children. Similarly, the plan for returning home, for continuing school and education, and for additional court or probationary monitoring should also clearly address each child’s unique concerns about safety, personal effectiveness, self-worth, and respect. Please consider where, when, and with whom this child feels most safe, effective, valued and respected. Where, when, and with whom does the child feel unsafe, ineffective, or not respected? What out-of-home placements are available that can better provide for this child’s health and safety, as well as for the community’s safety? What placements might encourage success in school, relationships, and personal development?

1 The use of “child” on this bench card refers to any youth who comes under jurisdiction of the juvenile court.

*** Trauma-Focused, Evidence-Based (TF-EB) Treatment is science-based, often requires training in a specific protocol with careful clinical supervision, and emphasizes the treatment relationship, personal/psychological safety, emotional and behavioral self- regulation, development of coping skills, specific treatment of child traumatic experiences, and development of self-enhancing/pro- social thinking, feeling, decision-making, and behaving. TF-EB treatments include: Trauma-Focused Cognitive Behavioral Therapy, Parent-Child Interaction Therapy, Trauma Affect Regulation: Guidelines for Education and Therapy, Child Parent Psychotherapy and more. See website: http://www.nctsn.org/resources/topics/treatments-that-work/promising-practices

Attachment 9

Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges: A Handbook for Attorneys

Written by Mary Malefyt Seighman, JD  Erika Sussman, JD  Olga Trujillo, JD

On behalf of the National Center on Domestic Violence, Trauma & Mental Health

Edited by Carole Warshaw, MD

December 2011

This project was supported by Grant No. 2008-TA-AX-K003 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication are those of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

National Center on Domestic Violence, Trauma & Mental Health 29 E. Madison St., Ste. 1750 Chicago, IL 60607 (312) 726-7020 TTY: (312) 726-4110 Fax: (312) 726-7022 www.nationalcenterdvtraumamh.org

Acknowledgements

This handbook represents the culmination of a three-year project. We wish to thank all those who contributed to it.

We owe a debt of gratitude to the women whom we interviewed and who shared their experiences with us so openly. They taught us much about the gaps in representation and services that they and many others face across the country, and affirmed our belief that this is an area in need of improvement. Their stories shaped the direction of this project and guided the writing of this handbook.

We offer a special acknowledgement to our esteemed colleagues who generously and kindly offered their time and expertise to review draft outlines and offer comments, suggestions, and insights: Karen Bower, Jill Davies, and Becki Truscott Kondkar. Their assistance was invaluable.

We also wish to thank the participants in our December 2008 expert panel meeting, who encouraged us and offered their perspectives: Karen Bower, Catherine Cerulli, Romilda Crocamo, Barbara Hart, Julie Kunce Field, Catherine Mazzotta, Kelly Miller, Peter Macdonald, Shery Mead, Emely Ortiz, Terri Pease, Denice Wolf Markham, Carol Shoener, Beth Scullin, and Maureen Sheeran. We also wish to thank Lydia Watts of Greater Good Consulting for her excellent meeting facilitation.

We are particularly grateful to Carole Warshaw, MD, for her ongoing support for this project and for her vision that serves as the foundation of the National Center.

Finally, we would like to express our sincere thanks to Amy Loder, Program Manager with the Office on Violence Against Women, for her guidance and help with this project.

- Mary Malefyt Seighman, Erika Sussman, and Olga Trujillo

About the authors:

Mary Malefyt Seighman is an attorney who has worked to address domestic and family violence legal and policy issues for sixteen years. She consults for the National Center on Domestic Violence, Trauma & Mental Health, and served as a member of its staff for three years. Mary has designed and implemented many of the legal components of the National Center’s work. She has worked for and with several other national projects that provide technical assistance aimed at improving the response to survivors of

domestic violence and has written or co-written a number of articles, educational tools, manuals, and model policies for attorneys, advocates, law enforcement, and others.

Erika Sussman is an attorney and the Founder and Executive Director of the Center for Survivor Agency and Justice, a national organization dedicated to enhancing legal advocacy for survivors of intimate partner violence by cultivating survivor-centered lawyering and advocacy skills. She has served as an adjunct professor at Cornell Law School, Teaching Fellow and Women's Law and Public Policy Fellow at Georgetown University Law Center's Domestic Violence Clinic, and litigation associate at Swidler Berlin Sherreff Friedman, LLP, where she provided pro bono representation to domestic violence survivors. She has published several articles and served as faculty for various academic and practitioner workshops related to violence against women, with a particular emphasis on survivor-centered advocacy and economic justice.

Olga Trujillo is an attorney, trainer, speaker, and author who has devoted her career to helping advocates, first responders, and others in the field better understand the impact of trauma on survivors of sexual assault, domestic violence, and child abuse. Olga was a recipient of a Sunshine Lady Foundation 2006 Peace Award for her work for battered women and their children. Her memoir, THE SUM OF MY PARTS (New Harbinger), was released in October 2011. Olga writes a regular blog on trauma and dissociation for PSYCHOLOGY TODAY.

About the National Center on Domestic Violence, Trauma & Mental Health:

The mission of the National Center on Domestic Violence, Trauma & Mental Health is to ensure that all survivors of domestic violence and their children who are experiencing the mental health effects of trauma and/or living with a psychiatric disability can access the resources that are essential to their safety and well-being. To these ends, the National Center is committed to developing responses to the range of trauma-related issues faced by survivors and their children that are accessible, culturally relevant, and both domestic violence- and trauma-informed. The Center’s work is survivor-defined and rooted in principles of social justice.

The efforts of the Center are organized into four strategic objectives:

 Raising public awareness about the intersection of domestic violence, trauma, substance abuse and mental health through up-to-date analysis of research, policy and practice.  Building the capacity of systems and agencies to address the traumatic

effects of abuse and to facilitate healing and recovery.  Promoting policies that support collaboration and improve system responses to survivors and their children experiencing the impact of domestic violence and other lifetime trauma.  Contributing to research that advances knowledge and builds the evidence base for responding to trauma in the lives of DV survivors and their children.

vii

Table of Contents

INTRODUCTION ...... 1 SECTION ONE: INTERVIEWING ...... 5 DO NOT EXACERBATE THE HARM OR RISKS ...... 5 BE AWARE OF THE SIGNS OF TRAUMA ...... 5 SURVIVOR-DEFINED REPRESENTATION WHEN THE CLIENT IS LIVING WITH TRAUMA-RELATED OR OTHER MENTAL HEALTH CONDITIONS ...... 6 BEGIN A DIALOGUE ABOUT THE SURVIVOR’S MENTAL HEALTH NEEDS ...... 6 TECHNIQUES FOR BUILDING TRUST AND ENSURING INFORMED CONSENT WITH SURVIVORS WHO EXPERIENCE TRAUMA AND/OR MENTAL HEALTH SYMPTOMS ...... 7 SECTION TWO: CLIENT COUNSELING ...... 9 WORK WITH THE SURVIVOR TO GAIN AN UNDERSTANDING OF BATTERER-GENERATED AND LIFE-GENERATED RISKS...... 9 PARTNER WITH THE SURVIVOR TO DEVISE LEGAL OPTIONS THAT FIT WITHIN THE BROADER CONTEXT OF THE SURVIVOR’S SAFETY PLAN (INCLUDING BOTH SHORT AND LONG TERM GOALS) ...... 10 FUNCTIONALITY AND THE AMERICANS WITH DISABILITIES ACT ...... 10 COLLABORATING WITH TRAUMA- AND DOMESTIC VIOLENCE-INFORMED MENTAL HEALTH PROFESSIONALS TO ADDRESS THE SURVIVOR’S RANGE OF LEGAL AND MENTAL HEALTH NEEDS ...... 13 ENCOURAGING SURVIVOR-DRIVEN DECISION-MAKING ...... 14 SECTION THREE: DISCOVERY AND EVIDENCE ...... 17 CONSIDER THE IMPLICATIONS OF MENTAL HEALTH TREATMENT ON A CASE ...... 17 CONDUCT A RISK ANALYSIS WITH YOUR CLIENT ABOUT DISCLOSURE OF MENTAL HEALTH INFORMATION ...... 18 DEVELOPING STRATEGIES RELATED TO THE DISCLOSURE OF MENTAL HEALTH INFORMATION ...... 22 REFERENCES AND ADDITIONAL RESOURCES...... 26 SECTION FOUR: CUSTODY AND MENTAL HEALTH EVALUATIONS ...... 27 WHAT IS A CUSTODY EVALUATION? ...... 27 OBJECTING TO THE USE OF ANY CUSTODY EVALUATOR ...... 27 CHOOSING AN EVALUATOR ...... 29 PSYCHOLOGICAL TESTING ...... 30 PARENTAL ALIENATION SYNDROME HAS BEEN DISCREDITED ...... 31 HOW TO PROCEED WHEN THE EVALUATOR HAS BEEN APPOINTED AND THE EVALUATION HAS BEEN PERFORMED ...... 31 MENTAL HEALTH EVALUATIONS IN GENERAL...... 34 REFERENCES...... 35 SECTION FIVE: DECIDING WHICH COURSE TO TAKE AND PREPARING YOUR CLIENT FOR MEDIATION/NEGOTIATION OR TRIAL ...... 37 KNOW THE PROCEEDINGS IN YOUR JURISDICTION AND COURT ...... 37 CONSIDER THE RISKS AND BENEFITS DEPENDING UPON WHAT THE SURVIVOR WANTS AND WHAT SHE KNOWS ABOUT THE BATTERER AND HERSELF ...... 39 CONSIDERING NEGOTIATION ...... 40 PREPARING YOUR CLIENT FOR COURT ...... 41 PREPARING YOUR CLIENT FOR NEGOTIATIONS ...... 43 SECTION SIX: DETERMINING WHETHER YOU SHOULD HAVE AN EXPERT WITNESS ...... 45 RESPECT YOUR CLIENT’S COPING SKILLS ...... 45 STRATEGIZE TO OPTIMIZE HER COPING BEHAVIORS ...... 46 FINDING THE BEST EXPERT WITNESS ...... 47 FINDING A QUALIFIED EXPERT ...... 48 PREPARING THE EXPERT WITNESS ...... 50 CHALLENGING THE OPPOSING PARTY’S EXPERTS ...... 50

SECTION SEVEN: CROSS-EXAMINING THE OPPOSING PARTY ...... 51 SECTION EIGHT: CLOSING ARGUMENT ...... 61 FOCUS ON YOUR CLIENT’S STRENGTHS ...... 61 REVIEW THE LEGAL STANDARD GOVERNING CUSTODY CASES INVOLVING DOMESTIC VIOLENCE ...... 61 REMIND THE COURT THAT THE OPPOSING PARTY CAUSED YOUR CLIENT’S MENTAL HEALTH CHALLENGES ...... 62 DEMONSTRATE HOW YOUR EXPERT’S OPINIONS SUPPORT A CUSTODY AWARD TO YOUR CLIENT ...... 62 HIGHLIGHT PRIOR ACTS OF ABUSE ...... 62 POINT OUT FALSE STATEMENTS ...... 63 DISCREDIT THE CUSTODY EVALUATOR’S FINDINGS ...... 63 ADDITIONAL RESOURCES ...... 65 MATERIALS ...... 65 ORGANIZATIONS AND WEB SITES ...... 66

Introduction

In recent years, those who work with survivors of domestic violence have become increasingly aware of the connection between trauma and domestic violence, as well as other effects of domestic violence on a survivor’s mental health. The release of relevant research findings and available technical assistance that address this intersection through specialized trainings, educational materials, and tailored consultations have influenced the perspectives and work of many domestic violence advocates. It has catalyzed changes in the ways that local domestic violence programs offer and provide services to survivors living with trauma-related and other mental health impacts of domestic violence, influenced program standards and policies promulgated by statewide domestic violence coalitions, and prompted advocates to begin or renew efforts to engage with mental health providers in order to make services more accessible and appropriate for survivors who seek them.

Still, survivors who turn to the legal system for protection from the abuser, custody of their children, and assistance with other civil legal needs encounter significant barriers. This can occur for different reasons. First, the processes in which a survivor must engage to achieve legal objectives can trigger the effects of trauma, making it difficult for a survivor to fully participate in her case. Second, in many cases, the opposing party proffers testimony or introduces other evidence about the mental health of the survivor in an attempt to use societal stigma about mental health for the purpose of damaging her credibility and/or raising doubt about her parenting abilities.

We envisioned this project as a vehicle for creating a tool to assist attorneys who represent survivors when trauma or other mental health challenges are a factor in a case. Specifically, we wanted to offer lawyers practical information about the ways in which trauma and mental health can intersect and impact the civil legal cases of survivors and provide guidance on how to partner with a survivor and zealously represent her. To support this work, the National Center on Domestic Violence, Trauma & Mental Health applied for and received Violence Against Women Act funding through the Technical Assistance Program of the Office on Violence Against Women, U.S. Department of Justice.1

As a first step in the project, the National Center convened a roundtable meeting of individuals who interact with survivors in the course of a legal case. Participants representing attorneys, domestic violence advocates, the judiciary, the research field, mental health peer support, and mental health providers gathered for a one-day meeting in

1 For more information about the Office on Violence Against Women, go to www.ovw.usdoj.gov.

Chicago to offer their perspectives on the barriers that survivors face when trauma or other mental health challenges affect a legal case, share their experiences and strategies, and provide input on the kinds of materials that might be useful to attorneys.

While the input offered by the roundtable participants was useful in formulating ideas and learning about strategies, it also highlighted the need to gather more specific information about the barriers that individual survivors are facing in the legal system with regard to trauma and other mental health challenges.2 To this end, we embarked upon the second phase of the project, in which we conducted telephone interviews with survivors for the purpose of learning about their experiences with the legal system when they were involved in a case in which trauma or other mental health challenges were a factor. We received the names and contact information for 50-75 women. We contacted and conducted a brief screening interview (either by phone or email, depending on the information that we received) with each person who expressed an interest in being interviewed. Of all of the women with whom we spoke or emailed, seven had the most relevant experience. Most of those whom we did not interview had not participated in a civil legal or criminal case against the abuser or had not done so within the last ten years. All of the survivors that we interviewed had been a party in a civil legal case against the abuser; all but one of these interviewees was also a victim in a criminal case against the abuser, and one was a survivor who was charged with a criminal offense against the abuser. During the interviews, which typically lasted two hours, we asked a variety of questions to capture information about survivors’ perceptions of the strengths and weaknesses of the representatives of the various disciplines with whom they had interacted including community-based advocates, mental health providers, attorneys, custody evaluators, child protective services, judges, law enforcement, prosecutors, and victim-witness specialists. At the conclusion of the interview phase, we produced a summary of the interview findings, organized by discipline. We included a compilation of system gaps and needs, based on what we learned from the interviewees and the individuals who had participated in the roundtable meeting.

What we learned through these processes reaffirmed our belief that survivors encounter serious barriers when it comes to participating in legal cases and achieving the legal outcomes they desire, especially when trauma or other mental health challenges are a factor. In terms of attorneys, the survivors that we interviewed spoke about the positive attributes of the lawyers with whom they had worked – including their zealous advocacy, treating them as partners in the process, and their knowledge of domestic abuse. However, they also highlighted the ways in which attorneys fell short, including offering ineffective or harmful legal and strategic advice, failing to fight for the survivor, and exhibiting a lack of understanding about the intersection of trauma, mental health, and domestic violence. The

2 While some of the meeting participants are survivors of domestic violence, none had been involved in a civil legal case against the abuser within the past ten years.

survivors with whom we spoke also offered recommendations about what is needed for attorneys to better work with and represent survivors. Their suggestions included a need for more information about working with survivors who have experienced trauma and building the case in a way that does not allow the mental health challenges to overshadow the domestic violence that they have experienced. In particular, survivors felt it was important for attorneys to be able to show that trauma and other mental health challenges are often caused by the domestic violence itself and therefore should not operate to penalize survivors in their legal cases. Additionally, survivors indicated that attorneys should listen to survivors more, view and include them as partners in the legal process, and recognize and value their expertise.

This handbook was created for the overall purpose of providing guidance to attorneys so that they can help survivors achieve their civil legal objectives when trauma or other mental health challenges are a potential factor in a case. We do this in two ways. First, it is our intent to help attorneys identify when trauma may be an issue so that they can partner with the survivor to craft personal and legal strategies that help her to stay safe, avoid circumstances that can potentially trigger the effects of trauma, and develop plans for when triggers do arise. Second, we offer guidance on each step of a civil case related to the possibility of the opposing party or others raising issues about the mental health of the survivor. The handbook is intended to help attorneys anticipate with their clients the kinds of mental health-related case theories and evidence that the opposing party may attempt to procure and introduce, respond to such attempts, deal with custody evaluators, decide whether to negotiate or proceed to trial, choose and utilize experts, cross-examine the opposing party, and craft a closing argument.

The handbook features strategies that aim to keep trauma and other mental health challenges from becoming the central focus or even a consideration in the survivor’s case, and guidance for limiting it when mental health evidence is introduced by the opposing party. We do not advocate for the anticipatory introduction of mental health records or other evidence related to the mental health of the survivor in an effort to defuse attempts by the opposing party to use mental health information against her. The authors understand, though, that some attorneys have had some success in doing so.3 The handbook is grounded in survivor-defined advocacy – an adaptation of the “women- defined advocacy” model that Jill Davies, Eleanor Lyon, and Diane Monti-Catania wrote about in their 1998 book, Safety Planning with Battered Women: Complex Lives/Difficult Choices (Sage Publications); we advocate partnering with survivors to plan for safety, assess risks, develop strategies, and plot the course of her case.

3 For more information, see Denice Wolf Markham, Mental Illness and Domestic Violence: Implications for Family Law Litigation, Journal of Poverty Law and Policy 23, 30 (2003).

Finally, a note about language. In this handbook, “survivor” means an individual who has experienced domestic violence. We use this term interchangeably with “client.” For purposes of brevity and simplicity, survivors/clients are referred to as female but we intend to be inclusive of both men and women. All abusers and opposing parties are referred to as male, but it is understood that there are also abusers who are women. We use the term “opposing party” to refer to an individual who perpetrated domestic violence upon the survivor and/or her children, and who is a party to a survivor’s civil legal case.

Section One: Interviewing

Do Not Exacerbate the Harm or Risks

Lawyers working with survivors who are experiencing trauma and other mental health- related challenges should aim to ensure that their representation does not exacerbate the harm done to a client or create additional harms. Every domestic violence survivor faces risks. Some risks are batterer-generated; some risks are life-generated.4 Survivors who are experiencing trauma or other mental health challenges may face additional risks when they come in contact with systems and individuals who are ill equipped to address their particular mental health needs. Thus, attorneys must take steps to ensure that their relationship with the client does not exacerbate the risks or further harm the mental health of the survivor.

Be Aware of the Signs of Trauma

Lawyers working with survivors of domestic violence should be aware of signs of trauma and mental health challenges, such as:  The client does not talk about her experience(s) in a linear manner. She may go off on tangents or her speech may not seem coherent.  What would seem to be highly emotional facets of her experience are expressed with little emotion both in terms of facial expression and body language, and in terms of the tone of her voice (sometimes referred to as “flat affect”). She may be intellectually present but emotionally detached.  The client develops a deep, blank stare or an absent look during meetings with her; this could be a sign that she is dissociating.  The client is unable to remember key details of the abuse.

If you notice any of the above signs, you will want to take steps to avoid triggering feelings that are disruptive to your client as you work together on her case. While an attorney cannot ensure that an individual remains present and does not dissociate or otherwise disengage, there are steps you can take to remove as many barriers as possible to help your client be psychologically present for her own advocacy.

4 See Jill Davies, Eleanor Lyon, and Diane Monti-Catania, Safety Planning with Battered Women: Complex Lives/Difficult Choices (Sage Publications 1998).

Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

Survivor-Defined Representation When the Client is Living with Trauma-Related or Other Mental Health Conditions

Survivor-defined advocacy requires that attorneys tailor their advocacy approach to meet the individualized needs of survivors. For survivors facing mental health challenges, this means that lawyers must:  Gain an understanding of the ways in which this client’s challenges impact her ability to engage in the advocacy process, and  Tailor interviewing and counseling approaches to meet the needs of and maximize the self-determination of each individual client.

Survivors facing mental health challenges will often require more time and resource- intensive advocacy than other survivors. To use their time and resources wisely, lawyers must consider how to tailor their advocacy approach to be responsive to the issues and needs of survivors experiencing trauma related conditions and mental health concerns.

Begin a Dialogue about the Survivor’s Mental Health Needs

The lawyer should begin a dialogue with the survivor about her mental health needs as it relates to the lawyer/client relationship. This type of conversation provides a space for the survivor to explain her circumstances and for both lawyer and survivor to develop strategies for accommodating those challenges in the course of their relationship.

Lawyers need not, and should not, try to gather the client’s entire mental health history at this stage in the process. Rather, these preliminary conversations about the client’s mental health should focus upon how any mental health challenges affect her functioning. To get this conversation going, lawyers might ask, “Is there anything that I should know to help us work better together?” Or, “How can I, as your lawyer, accommodate what you need in this process?” For example, if the lawyer’s office creates too much sensory stimulation or causes sensory overload, your client might suggest meeting somewhere else. If she has difficulty focusing for long periods of time, the attorney might suggest taking several breaks or scheduling shorter appointments.

It is best practice for lawyers working with survivors to take the time necessary to build relationships and trust with their clients. Trust is key to developing the type of lawyer- client relationship required for effective representation. There are times, however, when lawyers have a limited amount of time or are meeting clients just before a hearing. In these situations, you need to gather as much information as possible, as quickly as possible, in preparation for your case. It is important to know that, when working under such tight deadlines, your client may not feel comfortable enough yet to disclose details about trauma

6 Section One: Interviewing and mental health conditions. In those situations, you are not likely to get complete and accurate information about this from your client. Under such circumstances, you may want to partner with an advocate who has been working with the survivor to assist in gathering this information and to provide you with the context necessary to understand and advocate for the comprehensive and individual needs of the survivor.

Techniques for Building Trust and Ensuring Informed Consent with Survivors Who Experience Trauma and/or Mental Health Symptoms

Survivor-centered interviewing skills are critical to providing comprehensive, individualized advocacy to survivors of domestic violence, whether or not a survivor has experienced trauma or mental health concerns. First, by offering a survivor the space to tell her own story, from her own perspective, an attorney can begin to lay the foundation for building trust. Second, when an attorney actively listens to a survivor’s story, she gains a more comprehensive, contextual understanding of the survivor’s needs. This rich understanding, when combined with a working relationship based on trust and respect for survivor agency, forms the basis of an effective survivor-attorney partnership that can work toward the expressed goals and objectives of the survivor.

Oftentimes in the lives of survivors, people were abusive or let them down, service providers responded ineffectively to them, and/or systems ignored or added to their pain. Each survivor has a unique perspective of these realities and lives with the effects of these negative experiences. A survivor’s cultural background will also impact the way in which she perceives her prior experiences.

Many survivors who have experienced violence from an intimate partner and/or have trauma related concerns are often likely to accommodate what they think you want. This can play out in different ways. A client may ask you directly, “What do you think I should do?” Or, a client may intuitively pick up from your discussion with her what she believes you want her to do. You may think the survivor is making an informed decision when in fact she is trying to do what she thinks you want.

To overcome the distrust that survivors who are dealing with trauma-related or other mental health symptoms experience, lawyers must take steps to nurture a respectful working relationship with them. Lawyers should:  Develop a basic understanding of trauma-related and mental health conditions that survivors may experience;  Be skilled in listening and asking questions to understand a survivor’s perspective and needs; and  Know how to decide what information and options to offer to meet those needs.

7 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

It is within the context of a respectful relationship that lawyers can provide opportunities for survivors experiencing trauma and mental health challenges to access the resources they need and to exercise more control over their own lives.

Jill Davies has crafted a list of the ways in which advocates can offer concrete assistance to survivors who have experienced trauma resulting from multiple victimizations. Attorneys for survivors who are dealing with mental health challenges can assist clients by:  Recognizing that survivors may be unable to access all of the details;  Providing options and the time and space for survivors to make fully-informed decisions;  Validating the survivor’s feelings throughout the process;  Being responsive to a survivor’s requests for information and support, even if she asks for the same information several times;  Partnering with survivors to identify alternative coping strategies, when they are engaging in self-harming behaviors;  Finding supports for developing alternative or additional coping strategies;  Connecting survivors who are experiencing a mental health crisis with a trusted mental health referral/resource; and  Offering support to survivors who are using alcohol and/or drugs by safety planning and strategizing to the greatest extent possible at the time (including assessing risks and developing strategies that mitigate the risks posed by alcohol and drug use) and encouraging them to contact you again.5

5 Adapted from Jill Davies, Helping Sexual Assault Survivors with Multiple Victimizations and Needs, A Guide for Agencies Serving Sexual Assault Survivors (July 2007).

Section Two: Client Counseling

Survivor-centered advocacy is based upon a partnership between the attorney and the survivor. The partnership draws upon the experience and knowledge of the survivor and the skills and resources of the attorney. The goal is to combine the expertise of both survivor and attorney to devise strategies that address the particular and comprehensive needs of the individual survivor. This partnership can proceed in three steps: (1) analyzing the risks, (2) reviewing previous/current safety plans, and (3) devising legal strategies.6

Work With The Survivor To Gain An Understanding Of Batterer-Generated And Life- Generated Risks.

Lawyers cannot begin to devise legal strategies for an individual client without gaining an understanding of the batterer-generated and life-generated risks she faces.

Trauma-informed legal advocacy takes time, but in the long run, it leads to more efficient, more effective legal advocacy for survivors. Here are some pointers for gathering the critical context:  Be sure to schedule adequate client meeting time for you to gather this critical context.  Give the client space to tell her story, so that she can identify her concerns as she prioritizes them.  Use open-ended questions to facilitate information sharing.  Listen more than you talk.

It is common for an abuser to attempt to use information about the mental health of a survivor to further the abuse and to gain advantage in a legal case. Develop an understanding of the ways in which the battering partner has used the survivor’s mental health history in the past to further his power and control.7 Examples might include a batterer:  Using a psychiatric diagnosis to silence his partner (e.g., “Who will believe a woman who is bipolar?”).  Threatening to sue for custody of the children and use her mental health history against her during the custody proceedings.

6 Jill Davies, An Approach to Legal Advocacy with Individual Battered Women (2003). 7 See Mary Malefyt Seighman & Erika Sussman, Interviews with Survivors of Domestic Violence Who Have Experienced Trauma or Mental Health: Reflections on Their Experiences in the Justice System: Summary and Recommendations (2010).

Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

 Using a survivor’s mental health history to convince systems (e.g., law enforcement, courts) that the survivor is not credible, that she is not a fit parent, that she needs to be institutionalized, etc.

Engage the client in analyzing the batterer-generated mental health risks that she faces now and in the future. Analysis of mental health risks may be complex. For example: a survivor who has suffered depression and anxiety as a result of her partner’s abuse may suffer additional risks if her partner continues to abuse her upon her departure.

Battered women who lived with mental health conditions before they were with their partner may find that they have limited options available to them. For example: a survivor may face a greater risk of losing custody of her children, and she may be more vulnerable to future physical attack.

Partner With The Survivor To Devise Legal Options That Fit Within The Broader Context Of The Survivor’s Safety Plan (Including Both Short And Long Term Goals)

The process of legal strategizing with survivors must take place within the broader context of safety planning. That context is what makes legal advocacy on behalf of survivors challenging; this is certainly true for survivors who are experiencing trauma-related and/or other mental health concerns.

Functionality and the Americans with Disabilities Act

Trauma-informed legal advocacy for domestic violence survivors requires that the lawyer work with the survivor to ensure that she can participate in the process fully. The Americans with Disabilities Act (ADA) is a critical piece of federal legislation that can assist survivors in accessing full participation.8

The ADA entitles individuals to protections stemming from their disabilities—related both to one’s physical health as well as mental health.9 Lawyers should think with their clients about how the ADA can assist a survivor in the course of the legal advocacy process. Clearly, just because an accommodation is available does not mean that a client will want to avail herself of the accommodation. Therefore, the lawyer and client must dialogue about

8 Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. §§12101 et seq. (1990). 9 Under the ADA, an individual with a "disability" is a person who has a physical or mental impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment. Under Title II of the Act, no qualified individual with a disability shall be unreasonably discriminated against, or excluded from participation in or benefits of the services, programs, or activities of state and local government, including the judicial branch.

10 Section Two: Client Counseling the challenges she anticipates during the course of advocacy and in the courtroom and consider the risks and benefits of requesting particular accommodations.

Exploring Legal Options

Jill Davies suggests the following process to engage survivors in exploring the legal options that a survivor may have available.* Attorneys who have more recently begun working with survivors of domestic violence may especially wish to review this list.

Options—Consider the various legal remedies that are available to address the survivor’s circumstances. For example: civil protection order, custody order, criminal charges, public benefits, VAWA self-petition, etc.

Requirements - Examine whether the survivor meets the legal requirements for the remedy. Who is eligible? What does the person need to prove to be eligible?

Legal Process - Know the legal process required to access the option. Which court? What forms are required? When is the court open? Are there unique requirements established by local court or judge?

Additional Considerations—Know about other considerations. Will the legal option enhance her safety and that of her children? Could seeking this legal option make things worse for her? Does she have control over whether to initiate the court case or is the case in the hands of someone else (i.e., a prosecutor)?

Examine each of the above steps in partnership with the survivor. The answers to many of the questions will have a direct impact upon the survivor’s life and her safety plan. She will need to know about the specific practical realities so that both she and you can: identify the barriers, craft solutions that address the barriers, and determine whether the remedies can address and meet her individual risks and needs.

*Jill Davies, An Approach to Legal Advocacy with Individual Battered Women (2003).

Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

Examining Accommodation Strategies Engage in a nuanced conversation with your client about how her ability to function will come into play during a courtroom proceeding. The key question is: does your client feel that she can participate in the litigation process?

The answer to this question will depend greatly upon the challenges that your client anticipates and the types of accommodation strategies you and she develop together to address those challenges. The following are some ideas to consider:  Practice direct and cross-examination of your client to help her feel more comfortable with the process.  Bring a support person to the hearing or trial (family member, friend, therapist, advocate, etc.).  If your client begins to dissociate or to look like she’s shutting down, request a recess from the court.  If you do take a recess, work with your client to explain what happened and re- orient her to where she is.  If your client is unable to recover that day, connect her with a mental health practitioner who can help her to re-enter the courtroom space with less trauma and equip her with strategies to help her get through her testimony and fully participate in the process to the best of her ability.

Attorney Self-Assessment All lawyers doing this work should partake in an honest self-assessment to determine whether they are prepared and able to address the particular needs of a survivor facing trauma and mental health challenges. It may be helpful to ask yourself the following questions:  Do I have the desire, patience, temperament needed to advocate for survivors who are struggling with trauma and mental health challenges?  Do I have the skills needed to support survivors when they find themselves triggered by the legal advocacy process?  If I don’t personally possess all of those skills, who can I collaborate with to ensure that my client is getting the accommodations and support that she needs to fully participate in the process?

When Your Client is Unable to Testify Under some circumstances, courts may consider a person to be “unable to testify” under the rules of evidence, and therefore entitled to an out-of-court deposition. Such a deposition allows a witness to contribute her testimony while avoiding the trauma of testifying in the courtroom. It is generally permissible provided the testimony meets the

12 Section Two: Client Counseling other applicable rules of evidence. Some state courts (e.g., Ohio and Rhode Island) have developed special provisions that allow for out-of-court testimony by victims of sex crimes, abuse, and neglect who live with mental disabilities, thereby helping them to avoid retraumatization in the courtroom.

Assessing the Risks and Benefits of Accommodations Lawyers will want to discuss with survivors the pros and cons of requesting accommodations. At the very least, a request for accommodations requires that the litigant disclose her disability.

Pros of Requesting Accommodations:  If your client anticipates that mental health will be raised during the course of the trial, disclosure may carry little risk.  Accommodations may help your client to participate more fully in the proceedings by reducing the potential negative impacts of participation (e.g., triggering of the effects of trauma).

Cons:  If mental health is unlikely to be raised otherwise, the risk of stigma or unwarranted prejudice may be greater.  Disclosure may result in mental health or trauma being raised as a substantive issue by the opposing party.  In a custody case, this additional attention drawn to the mental health of your client may influence the weight given to this factor in the best interest consideration.

The calculus has real implications for your client and the way that she will experience the legal process. Therefore, she must be involved in analyzing and ultimately making this important decision.

Collaborating with Trauma- And Domestic Violence-Informed Mental Health Professionals to Address The Survivor’s Range Of Legal And Mental Health Needs

Even the most seasoned domestic violence lawyers cannot know all there is to know about mental health issues facing survivors. Nor can attorneys take on the role of mental health professionals. For these reasons, it is critical to develop relationships with qualified mental health providers. Note that it will be important, prior to taking on any one case, to identify individual mental health practitioners who understand the political and individual context of coercive control and have expertise in trauma-related mental health conditions. During the course of your representation, you may consult with this mental health provider in crafting safety plans, in identifying remedies, and, when needed, to serve as an expert

13 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges witness. As with all collaborations that an advocate builds, you must obtain the informed consent of the survivor prior to sharing any information with the mental health provider. Be sure to be specific with your client about the scope, content, and time frame of the consent she is providing.

Encouraging Survivor-Driven Decision-Making

Many survivors who have experienced violence from an intimate partner and/or have trauma related concerns are often likely to accommodate what they think their attorneys want. As the attorney of a survivor living with trauma, you may experience this in several ways. Your client may ask you directly, “What do you think I should do?” or, from your conversation, she may intuitively pick-up on what she thinks that you want her to do.

As a result, you may think the survivor is making a decision for herself, when in fact she is trying to do what she thinks you want her to do. This is a problem that many lawyers (and other “helping professionals”) face. We are often asked what we think the client should do. We believe it is our job to answer this question. However, it is critical that we resist the temptation to tell our clients what to do. Knowing the law is not enough. You do not know the survivor’s life circumstances well enough to make this judgment. Even you did, it is the survivor who will have to live with the consequences of the decision. Lacking such context, you may suggest something that is not safe for the survivor. Or the survivor may not be able, for other reasons, to take the steps that you are recommending; she may then lose trust in you. Indeed, she may stop working with you altogether, without explanation.

In any of these situations: If a survivor is trying to accommodate what you have suggested without thinking through how it impacts her own circumstances, then she is not determining the course of her legal advocacy.

To avoid this, and to promote her active decision-making, you might try the following:  Do not present legal options until you have had time to gather a contextual understanding of your client’s life circumstances and the abuse she has experienced.  Make sure that you thoroughly discuss the choices. Do not move forward based upon a simple yes or a nod.  When you present an option, engage your client in analyzing both the risks and the benefits, based on her individual life circumstances, as she anticipates them. You might ask:  If you were to do X, what about it might cause you to worry? What negative consequences can you foresee? What are the possible benefits?

14 Section Two: Client Counseling

 Once you have identified specific risks related to particular legal strategies, work closely with the survivor to create options that mitigate the risks she has identified. Then, engage her in considering the risks and benefits of those solutions.  Give the survivor time outside of your meeting to make decisions, so that she can consider the options with the support of her family, friends, or an advocate.

Section Three: Discovery and Evidence

This section discusses important considerations related to mental health records and testimony on civil legal cases involving issues of domestic violence. It examines the implications of mental health treatment, the importance of conducting a risk assessment with your client about the disclosure of mental health information, and the development of strategies to respond to attempts by the opposing party to obtain and introduce mental health information about a client. Attorneys should consider the factors and strategies discussed below in light of the survivor’s expressed needs and desired outcomes, the facts and circumstances of the case, and the culture of the court. The use of experts is covered in Section 6: Selecting and Preparing Expert Witnesses.

Consider the Implications of Mental Health Treatment on a Case

During your initial interview(s) with your client, you likely learned whether she has sought or is currently seeking treatment from a mental health care provider. The opposing party may try to seek release of information related to mental health treatment to impeach her credibility, and to demonstrate that she is emotionally or mentally unstable and therefore an unfit parent. Societal stigma related to mental health diagnoses and symptoms can carry significant weight in a case. Mental health may also be considered as a factor in the determination of the best interest of a child as part of a custody case.10 If your client has ever received mental health services, you will need to work closely with her to consider the implications of the release of her mental health-related information and develop strategies to combat attempts by the opposing party to use it to damage your client’s case.

In order to do this in a manner that continues to build trust and further solidify the partnership you are creating with your client, you will have to initiate and proceed with this conversation in a delicate manner. Remember that the stigma and shame of mental health-related conditions are often internalized. In your discussions about these issues, try to avoid feeding into that shame and stigma.

For example, you could say, “I understand that you have been proactive in taking care of yourself and making sure you can be an even better parent for your child(ren). I admire your fortitude and courage in doing this work on your mental health concerns. Unfortunately, the other side may try to use your efforts to show that there is something wrong with you and that you are an unfit mother. So, let’s talk about how we might address that possibility. First, do they know about your mental health concerns and your efforts to address them? Second,

10 Consult your state’s family code for the factors that a court may consider in making custody decisions, and the weight given to particular items.

Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges how do you feel about bringing it up before they do? Third, can we involve your therapist in our case as a witness on your behalf?

Taking this strength-based approach will help your client to see her efforts in a positive manner. If you continue to talk about it with her in this way you will reinforce what her therapist has likely also brought to her attention: that her foresight in dealing with these concerns is very positive and will help her to be the best parent she can be. Doing this will help her to respond better to the opposing party’s efforts to attack her with information about her mental health challenges or treatment that she has sought.

Conduct a Risk Analysis with Your Client About Disclosure of Mental Health Information

If you or your client believe that your client’s mental health will be a factor that will affect the case outcome, you will need to conduct a risk analysis related to mental health-related evidence.

A risk analysis considers:  What evidence will potentially be available;  How difficult or easy it will be for the opposing party to obtain it;  What information it will contain;  Whether it will be damaging and, if so:  To what degree;  What would the consequences be of the introduction of such evidence; and  Would introducing it affirmatively bolster the case and mitigate its harmful effects.

Conducting a risk analysis will help to prepare you and your client for the possibility that documentary and/or testimonial evidence of mental health challenges will be utilized by the opposing party. It will also help you to develop and implement a strategy to defeat the effect intended by the opposing party.

Affirmative release of mental health information Potential Benefits:

Some attorneys believe that pre-emptive release of information about a client’s mental health and providing up-front explanations about it can be beneficial to a case. This approach can be useful in certain circumstances. It can send a message to the court and the opposing party that you and your client are not concerned about your client’s mental health and that you do not consider it to be damaging. For example, you may decide to

18 Section Three: Discovery and Evidence introduce direct testimony from a mental health provider who has treated your client in which she states that your client is completely functional; that she is a responsible and competent parent, employee, and member of the community; and that the trauma and/or mental health symptoms that she sometimes experiences do not negatively impact her life (or the lives of her children, in a custody or visitation case). This can work to the advantage of your client and can normalize the fact that your client lives with mental health challenges.

Potential Risks:

However, entering mental health records and other information or introducing mental health professionals’ testimony, can result in unintended harmful consequences once they are in the hands of the opposing party. There may be information in mental health records, for example, that did not appear to be damaging when you examined it, but that is used to demonstrate that your client lacks credibility or has demonstrated poor parenting skills.

Analyzing Whether to Preemptively Disclose:

If, after you conduct a risk assessment, you determine that it is likely that the opposing party already has or will obtain potentially harmful information about your client’s mental health, you will need to discuss with your client whether it is more likely than not that preemptively disclosing it would support your case, or whether it would have negative consequences for the desired case outcome, your client’s life goals, the safety of your client or family members, her economic status, or her privacy.11 Additionally, releasing mental health information about your client – if it has not already been raised by the opposing party – could possibly elevate your client’s mental health to a central focus of the case rather than keeping it on the violence that the opposing party perpetrated.

As a first step, after consulting with your client about proceeding with the case, and with the permission of your client, it is important to obtain and examine your client’s mental health records and assess them for aspects that may be helpful or harmful to the case. Factors in this decision will likely include: the type of case on which you are representing your client, the case timeline, the relative ease or difficulty of obtaining records, and cost. Conducting a risk analysis will help you to make a decision about and aid in the development of your overall case strategy with regard to mental health.

11 Office on Violence Against Women grantees and subgrantees receiving Violence Against Women Act funds must protect the confidentiality and privacy of persons receiving services to ensure their safety and their families' safety. Check with your OVW program manager about the confidentiality requirements with which you/your agency may be required to comply.

19 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

Consider:

(1) Types of evidence that may be available about your client’s mental health such as:  Insurance records that include diagnoses and services provided, and medications prescribed to alleviate symptoms.  Mental health treatment provider files including examination or assessment results, diagnoses, and clinician notes.  File notes kept by victim service providers including domestic violence programs or organizations providing more general services to victims of crime.  Children’s school records.  Testimony of your client’s mental health provider(s) related to mental health diagnosis, symptoms, treatment, and concerns.

Discussing Evidence with Your Client

It is important to discuss the risks and the types of evidence with your client in a nonjudgmental fashion. People living with mental health challenges are often encouraged to seek support from friends and family in addressing these issues. Talking about their diagnoses can help normalize the condition for the survivor and lead to acceptance. This is critical for healing. The manner in which you discuss these points will affect how they feel about their actions. Recognizing that a survivor was proactive in seeking help and support for mental health concerns is an important message to convey. The more you do this, the more a survivor will believe you and believe it of themselves. It also further strengthens your partnership and trust.

(2) Statutory confidentiality and privilege provisions that may apply, such as:  What your state’s code requires for insurance records to be released as part of a civil legal case or child protective services administrative proceedings.  What your state’s code requires for mental health records to be released as part of a civil legal case or child protective services administrative proceedings. Does the statute provide standards for release that are relatively difficult or easy to meet?  Does your state code explicitly provide for a psychotherapist-patient or a counselor- client privilege? Who qualifies under the privilege? What are the exceptions?  What do the rules of evidence say about release of information?

20 Section Three: Discovery and Evidence

Applicable exemptions or exceptions related to statutory confidentiality and privilege statutes, which would allow disclosure or release of information to particular individuals or under certain circumstances such as:  Family members or others who are participating in the diagnosis or treatment. If so, what information may have already been made available to them related to diagnoses, treatment goals, and medications?  Hospitalization proceedings.  Any breach of duty by the psychotherapist or the patient.  When the mental state of a client is an element of a claim or a defense.  Child custody cases when the mental state of a party is an issue and resolution of the issue requires disclosure.  Counselors whose duties and role do not strictly meet the definition of counselor included in the statute.  Suspected child abuse or neglect.  Past civil or criminal proceedings in which the judge ordered a mental health assessment or examination, or which were required as part of a child protective services case.  Collection proceedings for unpaid mental health services.

(4) Whether any of your client’s mental health information has previously been released as part of another legal case or administrative proceedings, whether they are now considered part of the public record, and whether they can be accessed at the court that had jurisdiction over the case or elsewhere.

(5) Whether your client has signed any blanket or limited releases allowing a psychotherapist, counselor, or advocate to disclose information about her mental health or services provided, the information that may be released, and the circumstances under which information may be disclosed.

(6) Whether state statute or case law allows for a blanket exception to mental health record confidentiality or psychotherapist or counselor privilege pursuant to a subpoena, and how likely the court is to grant a request to subpoena your client’s mental health records or the appearance of her/his mental health care provider(s).

(7) Whether your client’s mental health treatment was ever covered by a health insurance policy provided by the opposing party’s employer or which was privately purchased by the opposing party.

21 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

Developing Strategies Related to the Disclosure of Mental Health Information

If you believe that written records or the testimony of a mental health care provider or others will be available to the opposing party and you wish to prevent the opposing party from admitting them into evidence, you should discuss what actions you will take to prevent their inclusion and what your response will be if they are admitted. You will need to consider the culture of the court and the facts and circumstances of the case in determining whether to object to introduction of mental health evidence, and at what point in the case (i.e., pre-trial or during a hearing or trial).

You will need to prepare for the following possible circumstances:

 Attempts by the opposing party to obtain information about your client’s mental health status or treatment – either informally (e.g., attempting to learn information about your client on the phone or via office visits with the mental health provider) or through formal channels such as by asking the court to issue a subpoena for the provider’ records, testimony, or deposition.  Attempts by a court-assigned evaluator to contact your client’s mental health provider and interview him/her about your client, or obtain records.  Attempts by a child protective services agency to contact your client’s mental health provider to learn information about your client through records, an interview, deposition, or testimony.

Possible strategies that you consider with your client may include the following:

(1) Communicate with Your Client’s Mental Health Provider(s)

Talk with your client about the reasons why she may want to inform her mental health provider that she is currently or will be a party to a civil legal case involving issues of domestic violence. This includes:

(a) Privilege and Confidentiality: The necessity of the mental health provider maintaining the privilege and/or confidentiality over communications and records regarding services provided to your client.

The provider may receive a subpoena for records or to appear at a deposition, hearing, or trial for the purpose of providing testimony about your client. You should request that the provider contact you immediately if the opposing party or anyone else makes any attempts to gather information about your client (whether by subpoena, phone call, email, or other means). Response to a

22 Section Three: Discovery and Evidence

subpoena is generally required quickly (e.g., within ten days); the sooner you know, the more quickly you can generate a response and prevent the release of information.

(b) Record Keeping. The provider should consider the case context when she makes future records about your client. You, your client, and the mental health provider should be aware that all information is potentially discoverable. Talk with the provider about how notes of sessions with your client could be misinterpreted or used against her in the case.

(c) Preparation for Trial. If your client agrees, the mental health provider needs to be a part of the team that is preparing the case. The provider can contribute by helping your client to prepare documents that illustrate and demonstrate her positive attributes including her competence as a parent, her foresight in seeking and receiving mental health assistance when she needs it, and her contingency planning for the future. The provider can also help you craft arguments related to your client’s mental health symptoms and how they do not impact her credibility related to the abuse or care for the child(ren).

(d) Waiver for Communication with Provider. If your client is willing, she can sign a written waiver allowing you to communicate directly with her mental health provider. Any such waiver should be very specific in terms of the information that can be disclosed and the time period for which it is operational.

Remember that these conversations need to be handled carefully so that your client is making a decision based on what she knows and believes, not on what she thinks you want her to do. You do not want your client agreeing to something simply to accommodate you. This is very important for maintaining the trust that you have built with her. It is also critical to her continued participation in the case that she think this through thoroughly. You may suggest that she talk it over with her advocate, a close friend, or her therapist. The risk in not taking the time here is that a decision to accommodate you could potentially derail your case at the last moment if she changes her mind. This is less likely to happen if it is truly her decision.

(2) Response to Subpoena. If the opposing party obtains a subpoena for the mental health records of your client, or for the deposition or trial testimony of your client’s mental health, you can prepare and file a motion to quash that argues that the subpoena should be cancelled or nullified on the grounds that:

23 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

(a) Production of the records or testimony of the individual would violate the counselor- patient privilege or confidentiality. You should directly address all exceptions enumerated in the relevant state code section that could possibly apply in the case. Cite the relevant statutory authority – e.g., counselor-patient privilege, confidentiality of mental health and/or medical records – and/or case law.

(b) It is unduly burdensome in terms of time or cost. For example, you could argue that traveling to or appearing at a deposition or hearing would mean that the mental health provider would have to forego client appointments and fees, and that it would be financially burdensome to be required to do so.

(c) The information requested is irrelevant to the case issues because: (i) The mental health of your client has not been shown to be at issue in the case. (ii) The information sought is too old (e.g., older than one year) to be relevant to the case. (iii) The information contained in the provider’s records contains personal information that is not related to the case and could be misleading.

(d) Release to non-professionals of raw psychological data (e.g., from personality inventories or other instruments, notes from therapy sessions) is unethical because of the inability of the non-professionals to correctly interpret them and, as such, it may be unduly prejudicial.

(e) If you or your client believes that the opposing party is using this attempt to gain access to your client’s mental health records as a continuation of his pattern of power and control over your client, you can argue that, in addition to being irrelevant in the case, the opposing party is seeking the information for the purpose of attempting to intimidate your client and continue his pattern of abuse.

The mental health provider can also file a separate motion to quash, as well, if he/she chooses.

(3) Response to Attempts to Introduce Mental Health Information. If the opposing party is successful in obtaining mental health information about your client (or already had the information in his or her possession) and attempts to introduce it into evidence, you can file a motion in limine to try to keep the evidence out. A motion in limine is a request that the court either exclude or include evidence. It can be a powerful tool that can be used to remove support for arguments that the opposing party was planning to rely upon and to

24 Section Three: Discovery and Evidence gauge whether the court will find information about your client’s mental health to be probative.

The arguments included in a motion in limine can include those enumerated in the section on Motions to Quash, above. Additionally, if the opposing party is attempting to introduce evidence about your client’s mental health status or treatment that he obtained while they were in a relationship, or through means other than subpoena, you can include additional or alternate arguments such as: (a) The opposing party obtained the information improperly by manipulating the mental health provider as part of his pattern of abuse.

(b) The opposing party obtained the information by improperly accessing your client’s private records, such as by opening her mail.

(c) But for the opposing party’s abuse, your client would not have sought mental health treatment; inclusion of mental health evidence about your client would be prejudicial and unjust.

25 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

References and Additional Resources

American Psychological Association Committee on Legal Issues (2006). Strategies for Private Practitioners Coping with Subpoenas or Compelled Testimony for Client Records or Test Data. Professional Psychology: Research and Practice, 37 (2), 215-222.

Bennett, B.E., Bricklin, P.M., Harris, E., Knapp, S. VandeCreek, L., & Younggren, J.N. (2006). Assessing and Managing Risk in Psychological Practice: An Individualized Approach. Rockville, MD, American Psychological Association Insurance Trust.

Glosoff, H.L., Herlihy, S.B., Herlihy, B. & Spence, E.B. (1997). Privileged Communication in the Psychologist-Client Relationship. Professional Psychology: Research and Practice, 28, 573- 581.

Inman, L. Some Things Are Best Left Unsaid: Strategic Use of Motions In Limine. Zaytoun Law Firm. Raleigh, North Carolina. http://www.ncatl.org/file_depot/0-10000000/0- 10000/9208/folder/88887/Motions+in+Limine.pdf.

Koocher, G.P. & Keith-Spiegel, P. (2008). Ethics in Psychology and the Mental Health Professions: Standards and Cases, Third Edition. New York, Oxford University Press.

OVW Fiscal Year 2011 Grant Program Solicitation Reference Guide (Dec. 17, 2010). http://www.ovw.usdoj.gov/docs/resource-guidebook/fy11-ovw-resource-guidebook.pdf.

U.S. Department of Health & Human Services (2009). Court Orders and Subpoenas Under HIPAA. http://www.hhs.gov/ocr/privacy/hipaa/understanding/consumers/courtorders.html

Section Four: Custody and Mental Health Evaluations

What is a Custody Evaluation?

A custody evaluator is generally appointed to conduct an “evaluation” of the parties and the circumstances of the case. The judge will often delineate specific questions that the evaluation should address, including what custody arrangement is in the best interests of the child. If the case includes issues of domestic violence or child abuse, the evaluator is often charged with making a determination as to whether any such abuse exists or poses a risk to the child. Custody evaluations can vary, but generally include psychological testing of both parents, interviews of collateral witnesses, interviews with the children, observations of parent/child interactions, and review of documents.

Objecting to the Use of Any Custody Evaluator

Many courts across the nation routinely order custody evaluations in every child custody case. However, custody evaluations are not warranted in many, perhaps most, cases involving domestic violence. Indeed, there is a great deal of data (both scientific and anecdotal) demonstrating that custody evaluations often result in dangerous outcomes for protective parents and their children.

Custody Evaluators and Domestic Violence

Even if an evaluator has performed numerous evaluations does not mean that she is qualified to address cases involving domestic violence. Such an evaluation requires specialized knowledge and understanding. For example, an evaluator must have an understanding of the ways in which battering impacts children and protective parents. When an evaluator lacks that qualification, he or she is likely to misinterpret information, perhaps even attributing adaptive or protective strategies to a psychopathology. For all of these reasons, attorneys may wish to consider whether to object to assignment of a custody evaluator at the start of the custody case. Factors to examine in this decisionmaking process include the culture of the particular court, the facts and circumstances of the case, and the laws of the jurisdiction.

Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

The following may serve as the bases for an objection to an appointment of a custody evaluator:

(1) The Law Requires Grant of Custody. Under the law of many states, where there is evidence of domestic violence, no evaluation is needed to determine that a child’s best interests are served by granting custody to the protective parent.12 The custody determination should be driven by a statutory presumption against granting custody or visitation to an abusive parent or by the court’s own determination that evidence of domestic abuse necessitates that custody be granted to the non-abusive parent. When there are no previous findings of domestic abuse or when public records do not exist, attorneys for survivors may argue that the current custody case provides a forum for each party to present evidence that enables the judge to make a finding regarding the presence of domestic abuse. This level of due process is what is required of the adversarial process. While courts may feel that additional information is necessary to inform a best-interest analysis, such information will be provided by the parties and must be subject to the rules of evidence, as required by constitutional law.

(2) Trauma Caused By the Abusive Parent Cannot Be Used Against Victims in Custody Case. Attorneys should consult with their local statutes to determine the law governing child custody evaluators. Some states have statutory provisions that state that the effects of domestic violence cannot be used against victims in custody litigation. Therefore, whether operating in a state that follows a best interest of the child framework or a presumption against ordering custody to an abusive parent, attorneys may invoke this statute to argue that the abusive parent cannot use the protective parent’s alleged mental health condition (caused by the abusive parent’s acts) to deprive her of custodial access.

Example: In Louisiana, the Post-Separation Family Violence Relief Act creates a rebuttable presumption against awarding sole or joint custody to perpetrators of family violence. The section that sets forth the standard for rebutting the presumption further states, “the fact that the abused parent suffers from the effects of the abuse shall not be grounds for denying that parent custody.” La. R.S. 9:364.

12 National Council of Juvenile and Family Court Judges, Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide, at 13 (revised 2006).

28 Section Four: Custody and Mental Health Evaluations

Choosing an Evaluator13

Minimize the Risk Once it is clear that the court will appoint an evaluator, attorneys should take steps to avoid or minimize the likelihood that an unqualified evaluator will be appointed:

You may ask the court for:  The opportunity to submit the names of proposed evaluators;  Time to investigate the proposed evaluator’s qualifications; and/or  Time to submit any appropriate objections to the court.

Assess the Qualifications of a Custody Evaluator First, determine whether your jurisdiction has guidelines for designating evaluators with particular competence in domestic violence. For example, Louisiana requires that the custody evaluator have “current and demonstrable training and experience working with perpetrators and victims.”14 Attorneys should use these legal standards to advocate for qualified custody evaluators.

The National Council on Juvenile and Family Court Judges (NCJFCJ) recommends that courts consider the following in identifying a qualified custody evaluator:15  Whether the evaluator has been certified as an expert in, or competent in, issues of domestic violence by a professional agency or organization, and the criteria for “certification” (including whether it involved a bona fide course of study or practice);  What courses or training (over what period of time) the evaluator has taken that focused on domestic violence;  The number of cases involving domestic violence that the evaluator has handled in practice or to which he or she has been appointed. Remember, however, that such experience may simply reflect the mechanism used by the court in identifying potential evaluators, rather than any relevant expertise; and  The number of cases in which the evaluator has been qualified as an expert in domestic violence.

13 Much of Section Four is drawn from training materials developed by Becki Truscott Kondkar for a teleconference training hosted by the Center for Survivor Agency and Justice in 2006. For a copy of the training materials and other resources on the topic of Custody Evaluators in Domestic Violence Cases, go to: www.csaj.org. 14 La. R.S. 9:365 15 Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide, supra, note 11.

29 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

Oppose the Evaluator Before the Evaluation Begins Attorneys should oppose the custody evaluator before he or she begins the evaluation. The following are grounds for opposition:  Qualifications/experience  Costs/fees  Limiting the scope of the evaluation to areas appropriate for the skills and expertise held by the evaluator  Use of unreliable, untested, or unethical evaluation practices

Psychological Testing

According to the NCJFCJ’s Guide to Navigating Custody Evaluations, “psychological testing is not appropriate in domestic violence situations.”16 Such testing has the potential to misdiagnose non-abusive parent’s normal response to the abuse or violence as indicative of mental illness, diverting attention from the coercive behaviors of the abusive parent.17

The Guide suggests that courts consider the following relevant questions:  What is the test being used to measure?  How is the test relevant to issues of custody and visitation?  Is the test valid for purposes for which it is being used?  Is the test recognized and accepted by experts in the field?  What are the qualifications necessary to use the instrument?  Does the expert have those qualifications?

Relevance and Reliability of Psychological Testing The NCJFCJ Guide emphasizes the following points with regard to the relevance and reliability of psychological testing in child custody cases:  Research shows that “there are no psychological tests that have been validated to assess parenting directly.”18  There is no psychological test that can accurately determine whether someone is an abuser or has been abused.19  Standard psychological tests measuring personality, psychopathology, intelligence or achievement do not address the issues most relevant to children or parents’ child-rearing attitudes and capacities.20

16 Id. 17 Id at 20. 18 Id. 19 Id. 20 Such tests include: the Minnesota Multiphasic Personality Assessment Inventory (MMPI-2), Rorschach Inkblot Test, Children’s Apperception Test (CAT), Thematic Apperception Test (TAT), Wechsler Adult Intelligence Scale (WAIS-III), and Wide Range Achievement Test (WRAT-3).

30 Section Four: Custody and Mental Health Evaluations

 Standard tests may confuse symptoms resulting from domestic violence with psychopathology.21  Tests intended to address trauma (e.g. Trauma Symptom Inventory (TSI)) may assist in determining treatment, but are not appropriate to determine whether a traumatic incident occurred.22

Parental Alienation Syndrome Has Been Discredited

Parental Alienation Syndrome (PAS) has been discredited by the scientific community, and courts should not accept this testimony. Lawyers should object to the admissibility of such evidence, based on its lack of validity and reliability, as required by Daubert and Frye. The NCJFCJ Guidelines state:

Unfortunately, an all too common practice. . . is for evaluators to diagnose children who exhibit a very strong bond and alignment with one parent and, simultaneously, a strong rejection of the other parent, as suffering from “parental alienation syndrome” or “PAS.” Under relevant evidentiary standards, the court should not accept this testimony.23

Apart from the evidentiary problems it presents, PAS fails to recognize that a child’s alignment with one parent or a parent’s seemingly “alienating” behavior may in fact represent a parent’s strategies aimed at protecting children from harm posed by the battering parent. Indeed, it is for that reason that the American Psychiatric Association determined that there was not sufficient scientific evidence supporting PAS to include it in the DSM V.

How to Proceed when the Evaluator Has Been Appointed and the Evaluation Has Been Performed

Reading the Evaluation Attorneys representing survivors in child custody cases should familiarize themselves with acceptable evaluation practices.

 Know the ethical and professional guidelines that govern custody evaluations.  Seek professional help in reading the evaluation.  Receive training on how to read custody evaluations

21 National Council of Juvenile and Family Court Judges, Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide, (2004, Revised 2006). 22 Id. 23 NCJFCJ Guidebook at 24.

31 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

 Conduct research for each evaluation

Consult With the Following Sources for Professional and Ethical Guidelines for Custody Evaluations

 American Professional Society on the Abuse of Children  American Psychological Association  National Children’s Advocacy Center  State Licensing Board  Statutory criteria in your state

Know the Red Flags When reviewing a custody evaluation, be sure to look out for the following red flags:  Dual Roles—The evaluator has acted as or suggested that he/she act as both an evaluator and as a therapist.  Reliance on Discredited Science—The evaluator has relied upon professionals or theories that are discredited in the field.  References to “bad science” (i.e., inappropriately applied theories and diagnoses, and problematic terms); examples include:  Parental alienation syndrome  Munchausen’s  Enmeshment  Batterer Profiles  Sex offender or pedophile profiles  False Allegations  False Memory Syndrome or False Memory

Conduct Discovery Lawyers for survivors should always conduct discovery to learn more about the basis for the evaluation and the evaluator. Discovery should inquire about:  Training, qualifications, and experience of the evaluator.  Testing procedures used in the evaluation. You should ask the following questions:  What protocols were followed in conducting the evaluation?  Where can those protocols be found in the professional literature?  What was the purpose of the evaluation?  What were the specific inquiries?  What was the purported purpose of the various tests administered?  Is that testing designed to specifically ascertain the information sought?

32 Section Four: Custody and Mental Health Evaluations

 What testing procedures were used?  What are the qualifications of anyone else involved in administering the testing?

Sources of Information Whenever possible, custody evaluators should base their evaluations not only on interviews with the parties, but also on corroborating sources of information. There are many reasons for this: the abusive partner may deny their use of violence and coercive control, and their assessment of their partner’s parenting may be a reflection of their abusive criticism and/or manipulation; the survivor may present as emotionally unstable, when in fact their behavior is a result of their partner’s abuse and/or the survivor is triggered; and a child may identify with the abusive parent out of self-protection.

Collateral sources may include:  Other family members, friends, neighbors, co-workers of the abused parent, and former partners;  Doctors, clergy, teachers, and counselors; and/or  Domestic violence advocates and professionals who have become involved with the family due to the abuse.

Pertinent records may include:  Police reports;  Child protection reports;  Court files in the present case and prior cases;  Medical, mental health and dental records; and/or  School records.

File a Motion in Limine If your review of the evaluation and the evaluator yield troublesome findings, you may wish to file a motion in limine to exclude the evaluator’s report, opinions, or testimony.

 If it appears that the evaluator has used “junk science” such as PAS, you should move to exclude the evaluator’s report and testimony.  Determine the evidentiary standard governing admissibility of scientific evidence in your jurisdiction. Most states follow some version of the Daubert24 or Frye25 standards.26

24 Daubert v. Merrell Down Pharmaceuticals, 509 U.S. 579 (1993). 25 Frye v. U.S. 293 F. 1013 (D.C. Cir. 1923). 26 See Jennifer Hoult, The Evidentiary Admissibility of Parental Alienation Syndrome: Science, Law, and Policy, Children's Legal Rights Journal, 26(1) (Spring 2006)(analyzing PAS admissibility under Frye, Daubert, Kumho Tire, and Federal Rule of Evidence 702).

33 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

 Daubert/Federal Rule 702 standard: Reliable Principles and Methods  Frye Standard: General Acceptance Test  Note: “Any testimony that a party to a custody case suffers from PAS should be ruled inadmissible and/or stricken from the evaluation report under both the standard established in Daubert and the earlier Frye standard.”

Discrediting/Impeaching an Incompetent Evaluator When a motion in limine is not successful, you will want to use your cross-examination of the custody evaluator to discredit or impeach him or her. Tips include:  Retain an expert of your own, and  Impeach the evaluator by using authoritative professional literature (including, where possible, publications by organizations to which the evaluator belongs).

Mental Health Evaluations in General

Most state statutory schemes limit the circumstances under which you can ask for a mental health evaluation. Most statutes say that you must make a finding of good cause. Although some state statutes say that a request for child custody puts mental health at issue, it is the exception. Therefore, it is critical that attorneys for survivors in custody cases review their statutes. Remember: just because it is a custody case, does not necessarily mean the batterer or the court have the right to have your client’s mental health evaluated. That said, you will want to consider whether to object to a mental health evaluation, based on the court and the particular facts of your case. Once a mental health evaluation enters into evidence, your job will be to analyze and formulate arguments regarding its relevance to the legal issues at hand.

34 Section Four: Custody and Mental Health Evaluations

References

American Bar Association, Standards of Practice for Lawyers Representing Children in Custody Cases, 37 Fam. L.Q. 131 (Summer 2003).

The APSAC Handbook on Child Maltreatment (2nd Ed. Sage, 2002).

Carol S. Brunch, Parental Alienation Syndrome and Parental Alienation: Getting it Wrong in Child Custody Cases, 35 Fam. L.Q. 527 (Fall 2001).

Clare Dalton et al., National Council of Juvenile and Family Court Judges, Navigating Custody and Visitation Evaluations in Cases with Domestic Violence: A Judge’s Guide (Revised in 2005).

Richard Ducote, Guardians Ad Litem in Private Custody Litigation: The Case for Abolition, 3 Loy. J. Pub. Int. L. 106 (Spring 2002).

Robert Horowitz et al., American Bar Association Center on Children and the Law, A Judge’s Guide: Making Child-Centered Decisions in Child Custody Cases (2001).

Violence and the Family: Report of the American Psychological Association’s Presidential Task Force on Violence and the Family (1996). www.leadershipcouncil.org (web site for the Leadership Council on Child Abuse and Interpersonal Violence, a non-profit organization that promotes the responsible use of science. This site provides a tremendous amount of citations to resources).

Section Five: Deciding Which Course to Take and Preparing Your Client for Mediation/Negotiation or Trial

As with all legal cases, those involving domestic violence and trauma require that you and your client weigh the pros and cons of mediation, negotiation, and pursuing a case in court. As an attorney, you consider the law, the court, the facts, and the risks of losing. Your client considers the risks that each of the proceedings could potentially present to her physical and mental health. Together, you and your client develop options that address the risks and optimize the chances of meeting her particular goals – both legal and otherwise. The survivor decides upon whether to pursue negotiation or trial, based upon all of the strategies that you and she have developed.

Know the Proceedings in Your Jurisdiction and Court

Make sure that you know the structure of the proceedings – negotiation, mediation, and trial – in your particular jurisdiction and under your particular judge. Lawyers for survivors must know more than just the legal remedies available. They must understand the legal requirements and the process for accessing the option. The legal process itself is often just as, and often more, important to a survivor’s sense of safety and autonomy. For example, if a survivor feels that the courtroom will expose her to triggers, she may decide that the risks that trial presents to her mental health outweigh the potential legal benefits.

The following are common processes that are important to consider:

Mandatory Custody Mediation and Domestic Violence Some jurisdictions require mediation in every child custody case. Many statutes waive this requirement in domestic violence cases, though others do not. Be sure to know the rules regarding domestic violence custody mediation in your jurisdiction. If there is an exception and your client wishes to avail herself of that exception, submit a motion or be prepared to articulate to the court why mediation is not appropriate in your client’s case. You will need to prepare your client if mediation is required and/or if she wishes to pursue mediation. This is especially true in cases involving domestic violence and cases where a survivor has mental health concerns that could be exacerbated. See below for further discussion of how to prepare for negotiation.

Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

Domestic violence exceptions to mandatory mediation came about for good reason. For years, advocates and lawyers have argued that the power dynamics inherent in relationships involving domestic violence make mediation ineffective and potentially dangerous for survivors. Abusers are likely to coerce and intimidate their former partners into accepting terms that they do not want and that are against their and their children’s best interests. Attorneys should draw from their jurisdiction’s rules and statutory provisions to illustrate the potential harm in the instant case. Despite the risks posed by mediation, some survivors, may choose this course to safeguard against the very real risks associated with trial. As an attorney, you must share the potential risks and benefits of each of these processes and discuss the implications for your client. Do not make assumptions based on generalizations about the litigation process. Rather think with your client about how the processes available are likely to play out in her life.

Mandatory Protection Order Negotiation Some jurisdictions, such as the District of Columbia, require that parties to a civil protection order attempt to negotiate their case prior to moving to trial. There may be a “court negotiator” who talks to each of the parties and aims to strike a negotiated order to avoid the time and expense of the courtroom. Some may engage in a “shuttle negotiation,” in which the court negotiator communicates with each party separately, while others may pull each of the parties into the same room and require that the survivor and abuser be present. Be familiar with the level of involvement required. In other words, some negotiations are a mere formality—a stepping stone before trial. Other jurisdictions require a genuine attempt to settle the matter and avoid the courtroom.

Other than the process concerns, attorneys for survivors should be cognizant of the impact that negotiated orders may have on their enforceability and on subsequent legal cases. Negotiated orders are not subject to an evidentiary proceeding and are, therefore, not subject to due process requirements. As such, the remedies are not supported by factual findings and cannot be used in future proceedings. For example, in jurisdictions that grant custody based on a finding of domestic violence, a negotiated protection order will not suffice as evidence of such abuse.

Testifying at Trial While the outcome of a trial may be positive, the process may pose risks to the survivor that preclude it as a possibility altogether. This is particularly true for survivors who are experiencing trauma and other mental health challenges. Trials are inherently adversarial in nature. Indeed, the entire process is built upon each side’s zealous case presentation. The trial process is likely to present challenges for your client. A range of strategies is discussed later in this section. However, it is worth noting that there are some jurisdictions and courts that allow for evidentiary exceptions that enable survivors to present testimony that

38 Section Five: Deciding Which Course to Take was obtained in advance of trial in lieu of trial testimony. For example, Ohio has enacted a provision that allows victims of sexual crimes, abuse, or neglect, or who have mental disabilities, to avoid the trauma of appearing in court by allowing them to be deposed out- of-court. These depositions may be introduced in court provided they meet the ordinary rules of evidence.

Consider the Risks and Benefits Depending Upon What the Survivor Wants and What She Knows About the Batterer and Herself

In cases where mediation/negotiation is not required, there are a number of factors to take into consideration to determine which route to take. For example:  Is the survivor going to be at greater risk of harm from the abuser if you take this case to court?  Is negotiating a settlement or is having a mediated resolution a safer course of action for the survivor and her child(ren)?  Do the mediators have any expertise in domestic violence?  Would a court proceeding be in the best interest of the child(ren)?

As you think about all these factors you want to also consider how a negotiation would impact the survivor’s mental health concerns versus a court proceeding.

If you have noticed the symptoms of trauma, as discussed in Section Six (Selecting, Preparing and Challenging Experts) and you have discussed it with the survivor, her response should be a significant factor in your decision-making process.

For example, if she is aware of her symptoms but does not want her diagnosis disclosed, a trial could jeopardize her ability to keep that information from the opposing party.

If she is aware of her symptoms without any diagnosis, the opposing attorney may also capitalize on her symptoms to discredit her. He can use the symptoms that may come up – a deep, blank stare or an absent look, lack of coherent memory, flat demeanor and/or an overreaction to a comment, gesture, look, or smell – to discredit her. A judge or jury may be persuaded to think that the survivor is unstable, untruthful, or an unfit mother.

The risks to the survivor increase if she is unaware of her symptoms and has no diagnosis. It is possible that if you have noticed these symptoms, the opposing party has, as well. They may be planning to use them to portray the survivor as “crazy,” and a trial could entail a psychological evaluation. This creates unpredictability for the survivor and for your case, depending on who is selected to conduct the evaluation, and how the evaluation is conducted. Oftentimes, symptoms of trauma and dissociation are not recognized as such

39 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges and survivors are misdiagnosed as having other, more stigmatized mental health conditions. While it may be easier to link the experience of abuse to diagnoses commonly associated with trauma (e.g., PTSD and other anxiety disorders, dissociative disorders, and depression) other mental health conditions can also be exacerbated by domestic violence and this should be made clear, as well.

If she is aware of her symptoms and is comfortable with disclosure, then you should prepare for how to address any mental health issues that may be raised at trial. You can have an expert normalize her symptoms as those of trauma and common coping mechanisms for the violence that she has suffered. In that case, what you can then focus on is preparing the survivor for trial and how to best manage what could happen so that you know how to help her to stay involved, engaged, and emotionally and physically safe.

Considering Negotiation

Negotiation may not be better for the survivor. Being in an intimate setting with the opposing party, the person who has abused her, may feel threatening and may be “triggering” for the survivor. It is something you will need to consider as you work with the survivor and contemplate whether to pursue negotiation or trial. The negotiation environment, or anticipation of it, could elicit trauma-related responses including dissociation, flashbacks, panic attacks, and/or depression. It could precipitate a mental health crisis or could exacerbate other mental health symptoms. Your client’s response may appear to be an overreaction to a seemingly normal situation, but it is deeply rooted in the trauma caused by the abuse.

As you proceed, discuss the possible risks of negotiation carefully with the survivor. Once you have provided her with information about the negotiation process, partner with her to identify the risks and benefits. Explore the requirements of the jurisdiction you are in around mediation/negotiation and how they look and feel. Respectfully discuss with her the potential risks to her physically, to her case, and to her emotional and mental well- being. Strategize with her what is required and what may be waived, modified, or avoided. Figure out together what might be the best course of action given her situation. Come up with a plan with her as to how she might best proceed. Then, prepare your client for what you cannot control. Discuss with her what may arise during either process, the impact of mental health evidence on the case, the legal structure in your jurisdiction and whether there are exceptions to mediation/negotiation requirements. Examine the different types of negotiation and what may work best.

40 Section Five: Deciding Which Course to Take

Preparing Your Client for Court

Once the survivor decides to pursue trial, you then need to prepare her for what to expect. When a survivor has mental health concerns, you may want to discuss the impact the court proceedings may have on her mental health.

Introduce the Court Process Walk the survivor through each step of the court proceeding and help her to think about her possible reactions.

 If feasible, meet at the court where the case will be held. With each step, be sure to explain the things that could happen. There is a balance here of giving her enough information to help her know what to expect and giving her too much information, which could possibly overwhelm her.  Let her guide you. Check in as you discuss each stage of the process and ask how certain things make her feel, whether she has concerns about the process, and whether there are strategies that you might employ to mitigate her concerns.  Ask the survivor if she would like to have one or two supportive people at the court proceeding that can help, should she have a hard time with the process.

Attorney Tip

Some people who have experienced trauma need to know what to expect when proceeding with a totally new experience. It helps reduce anxiety and it builds trust. It is a very important step in preparing a survivor for court.

Discuss Strategies for Mental Health Symptoms in the Courtroom If you haven’t already, you should gently discuss with the survivor any symptoms that you have noticed during the course of your work together thus far. Make sure she understands that you are only sharing your observations to help the two of you strategize about the court proceedings – it is not due to a lack of confidence in her, or a lack of belief in her case. You are working with her to make sure the two of you are prepared for the court case. For example:  If you notice that, when she recounts violent incidents that occurred, she has a flat tone and a deep, blank stare or an absent look, ask her about this. Often, this is a result of an overwhelmingly traumatic experience and the survivor has dissociated in order to cope with it. Her reporting of the experience will be from that safe distance and will lack the terror and physical pain.

41 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

 If she has noticed talk about how counsel for the opposing party may use this against her and say that she is lying, talk about how you might counter that claim.

If the survivor is aware of her affect, you can ask about it during the proceeding so that she may explain her lack of emotion to the court. If not, you may want to discuss using an expert to counter the opposing side’s allegations (see Section Six: Determining Whether You Should Have an Expert Witness).

Develop Strategies to Address Your Client’s Fears About the Court Process In addition to the symptoms you have noticed, you also will want to discuss and plan for fears that the survivor may express about the court case. You should ask if the survivor has had panic attacks or if she feels intense fear when the opposing party is in the same room with her. Ask her if she has any strategies for dealing with those. If she has a clinician she sees, ask her to discuss with her therapist strategies to get her through the court proceeding and how you might be able to help.

Whether she has a mental professional helping her or not, suggestions you can offer include the following:  Using your body to block the view to the opposing party as much as possible while she is in the courtroom, including while testifying. When you are not able to block his view she should look away from the other side, either focusing on you or a supportive person or advocate at the court.

 Asking the court for a recess when the survivor feels she needs one or when you notice some of the symptoms of trauma coming up (e.g., if she is dissociating and her responses to questions are slow and incomplete). This is usually a sign of a deeper level of dissociation usually brought on by intense fear or reliving of a particular attack or experience. Discuss whether she knows if this happens to her and how you can help.

 Once the court is adjourned, in a calm voice, ask her to take some deep breaths and ask her if she knows where she is and what day it is. This is useful for helping a survivor to ground herself in the present and bringing them out of the past. You may need to remind the survivor that she is in the courtroom, her abuser can’t hurt her, the opposing attorney asked her a question intended to scare her, she got scared, she “went away,” and nothing bad happened. A similar response can also help if the opposite reaction occurs and the survivor is triggered and she is crying uncontrollably or screams at the opposing party. A calm voice reminding the

42 Section Five: Deciding Which Course to Take

survivor where she is and what just happened should help her to feel more calm and restore a sense of balance.

 Discuss this strategy with the survivor before trial. You may not be the best person to help her. Ask her if this would be helpful and if so who she would want to take her through this process. It may be better left to one of her support persons. If she asks you to conduct this exercise with her make sure you feel comfortable doing so. If you do not, it is important to let her know and tell her why. For example, if you are afraid you will not do it right and may cause her harm then it is important to tell her this. This kind of transparency builds trust. If she thinks you are the best person to do it or the only person she has, you may want to practice with her ahead of time.

You want to have extensive discussions with the survivor prior to the court proceedings to help both of you anticipate possible reactions. She is the expert on her own circumstances, so partnership is critical here. Ask her to guide you through any reaction she can think of that may happen.

Preparing your Client for Negotiations

Preparing a client for mediation or settlement negotiations follows a similar course. Walk her through the process step-by-step, so she knows what to expect. Carefully listen to any fears or concerns that she raises. Another important thing to know is that a lot of survivors will sound and talk about their experience as though it was not as bad as it was. This is again part of a coping strategy that helps the survivor deal with the high levels of fear she experienced. We don’t always understand this as a coping mechanism. So listen to her concerns carefully. Do not disregard any of them because you do not hear or see a heightened concern on her part.

Discuss strategies for addressing those fears or concerns. For example:  Shuttle Negotiation: If she wants to know if she has to be in the same room with the opposing party during the negotiation, see if shuttle negotiation is possible. The survivor may feel better being in another room with her advocate or a supportive friend or family. Arrange for this, if you can. If this is not possible, thoroughly discuss what she is afraid might happen and strategize with her about how you might help her.  Breaks: Another strategy is to take breaks so she can get space away from the abusive partner.  Support Person: Offer the survivor the opportunity to have her advocate or a support person present with her during negotiation.

43 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

 Attorneys Only: If your client wishes, see how much you can negotiate with the opposing attorney without the abuser and your client present.

The contextual, individualized strategizing described above takes time and patience. Listen carefully and respond to all of your client’s concerns. This will help you to help her in the best way you can. Strategies that make her more comfortable and that mitigate the impact of the legal process on her mental health ensure more effective legal representation and better case outcomes.

Section Six: Determining Whether You Should Have an Expert Witness

In the course of representing a client who has survived domestic violence, child abuse, or other violent crimes, he or she may have trauma-related concerns requiring a specific and thoughtful strategy in court. This section will provide a number of strategies for thinking about the use of an expert. As with all stages of the litigation process, carefully consider whether these strategies fit the needs and desired outcomes expressed by your client, the culture of the court, and the laws of the jurisdiction.

Respect Your Client’s Coping Skills

Your client is using valuable coping skills in response to trauma and you should respect them as such. Do not ever try to force your client to feel or “face” what happened to her or connect the thoughts and feelings, even though you believe that this integrity of memory and emotion may help the legal proceeding—that it will make her seem more believable or that it will make it easier for her to assist you. This form of coping with trauma is instinctive. It is the mind’s way of protecting your client from fully knowing or feeling something that may overwhelm her consciousness. If you push her, you may end up with a client who is in crisis, with a diminished capacity to participate in her case or assist you.

Outward Signs of Trauma

Signs of trauma that you may notice personally are:  Dissociating during conversations;  Having a dazed look or a flat demeanor when describing violent events;  Overreacting to seemingly benign situations or events;  Startling easily and in a manner that doesn’t seem to fit the situation; and/or  Having an unusually poor memory for certain topics.

Your client may mention to you other signs of trauma, such as difficulty concentrating, difficulty sleeping, nightmares, and having disruptive flashbacks of a painful event sometimes accompanied by a dazed look or inattentiveness. Your client might mention signs of depression such as having trouble getting up in the morning, an inability to stop crying, a lack of energy, a feeling of hopelessness, feeling sad most of the time, or having thoughts of suicide.

Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

Strategize to Optimize Her Coping Behaviors

Instead, proceed cautiously. If you have not yet discussed the signs you have observed with your client, do so at this point. If your client is aware of these symptoms as trauma-related, it will be a straightforward conversation. If your client is not aware of how she has been affected by her traumatic experiences, do not try to push her to see this. Restrict your discussion to a strategic analysis of what you see and how her demeanor may influence court proceedings. She may have heard similar observations about herself before. In either case, discuss what you have noticed in a gentle, nonjudgmental, and matter-of-fact manner.

For example, you may gently point out that you noticed that her demeanor changed during discussions about a particular incident, describing the violent situation in a flat tone, almost as if she was talking about someone else, and developing a deep, blank stare. You can ask her if she has noticed this, as well. It is very possible that she has not given it a second thought. You can tell her you are aware that this is a common coping mechanism, and that it has probably kept her safe and calm in times of crisis. Discuss also how others may misinterpret these signs of trauma, or that the opposing party’s attorney may mischaracterize her coping skills as a problem in her ability to function.

Discuss the options she has in court for addressing this. As stated in Section Two, if the opposing party is not already aware of your client’s way of coping with trauma, weigh the pros and cons of disclosure. Again, proceed in a respectful manner, valuing the coping mechanism as opposed to seeing it as a problem. This will help your client to see it this way as well, which will reflect positively in her testimony. Work diligently to avoid feeding into the stigma and shame associated with many mental health concerns.

At the same time, it will be important to account for the court’s negative perception of individuals facing mental health challenges. Whether or not your client identifies as someone who is living with trauma-related or other mental health effects of abuse, it can be an issue that is raised by the opposing party for the purpose of gaining advantage in a case. Disclosing that your client has mental health concerns related to the trauma she has endured may leave the judge feeling that she is incapable of caring for her child(ren). It may also have an impact on your client’s ability to get or keep a job - another factor that can be used against her. You have to plan for this to come up. Make your respect for your client and her resilience clear, while at the same time acknowledging and strategizing to address the realities presented by courts and other third parties.

The strategy that you and your client develop may include bringing in an expert who is familiar with the dynamics of domestic violence in general and trauma in particular. This expert may help explain that the signs the two of you have discussed is normal for someone

46 Section Six: Determining Whether You Should Have an Expert Witness who has experienced trauma. Make sure your client has a chance to think about this strategy, ask questions, and discuss it with a friend, advocate, or other support person before deciding. This ensures that she is indeed in agreement and is not just accommodating your recommendation.

Finding the Best Expert Witness

If she decides that use of an expert is a good strategy to help normalize her behavior to the court, look for a trauma expert that is familiar with the dynamics of domestic violence, specifically the power and control aspects. There are many theories explaining domestic violence: the theory of power, control, and violence as being an entitlement of gender; the cycle of violence theory; psychological theories that hold that abusers suffer from low self- esteem, rage disorders, or simply lack good communication skills. Explore the working theory of any expert you consider and make sure it reflects your theory that domestic violence is a product of power and control and gender privilege. You don’t want them contradicting your theory or your case. They need to understand that their role as expert is to normalize the symptoms of and responses to trauma, and help the court understand that these symptoms do not impair your client’s ability to function or care for her child. Naturally, the expert must be careful not to pathologize your client’s responses.

Can Testify to the Signs of Trauma At a minimum, your expert should be able to testify to how your client’s flat affect and dazed look indicates that your client dissociated when she was attacked, if applicable. The expert could explain how the terror must have been so high that your client instinctively put the attack into her subconscious and that is why her memory is not complete. The expert may be able to infer how terrifying the situation was to your client, given the signs of trauma that she displays when asked about these incidents.

Other expert characteristics to look for include the following:

(1) Can Testify Regarding Triggering. Ideally, the expert will also be able to show how an abusive party can “trigger” your client by his mere presence. The expert may be able to describe how the abusive party knows exactly how and what to say to cause your client to react in a manner that appears “crazy.” An expert can explain how a look on the other party’s face—or a gesture or smell—can cause your client to re-experience a traumatic incident through a flashback and thereby appear unreasonable, irrational, and even hysterical, when in fact she is actually a calm, creative, intelligent person who has been traumatized.

47 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

(2) Can Explain Coercive Control. It is ideal to introduce the opinions of an expert that can see through what appear to be benign comments or actions that are intended to manipulate the expert or intimidate and trigger your client. This type of expert is difficult to find. You are more likely to find someone who is familiar with trauma and other mental health concerns that can explain and normalize your client’s actions, demeanor, and behavior. Carefully interview experts on their view of trauma and dissociation, but also on the dynamics of domestic violence. You do not want an expert that is unable to discern tactics of power and control; someone who minimizes interpersonal violence, coercion, and intimidation; or someone who believes that the actions of an abusive party are caused by both parties (“She made him do it.” “She pushes his buttons.” “It’s not really so bad.” “She started it.”). In all likelihood, content of this nature will frame the opposing party’s position. Rather, your expert should be able to articulate and reinforce your assertion that coercive control is a pattern of tactics designed to intimidate, terrorize, and maintain control over another, and that individuals who engage in coercive control should be held accountable for their abusive and violent behavior.

(3) Understands that Dissociation Arises from Traumatic Experiences. The expert’s view of trauma and dissociation is important, as well. An expert who only sees trauma as Post Traumatic Stress Disorder (PTSD) may not understand the complexity of the client’s dissociation. Dissociation is one component of Trauma or DESNOS (Disorders of Extreme Stress Not Otherwise Specified) as well as a central component of the Dissociative Disorders spectrum. Sometimes, a clinician may diagnose a survivor as having PTSD with multiple co-morbidities including anxiety disorders, phobias, Bipolar Disorder, Borderline Personality Disorder, or Schizophrenia to explain the symptoms that could be part of a dissociative disorder. You will want an expert that knows both trauma-related conditions and dissociative disorders and who also understands the power and control tactics of domestic violence.

Finding a Qualified Expert

In searching for a qualified expert, contact a local non-profit advocacy program that works with victims who have experienced trauma, such as a rape crisis center or a child abuse program. They tend to have a mental health approach to their programs and refer survivors for healing from the victimization that they have experienced. Local domestic violence programs and state domestic violence coalitions may have trauma experts that they can refer you to. Contacting your state’s sexual assault coalition and/or state children’s advocacy chapters may also be an option. You may also contact a national

48 Section Six: Determining Whether You Should Have an Expert Witness resource center or referral program; there are a number of these that address trauma and dissociation.27

Make sure your selection process includes a meeting between any potential expert witness and your client. Your expert should treat your client with respect – modeling the attitude you want the court to take – and also recognize the importance of gaining her trust. Speak to your client privately after the meeting to determine if she is comfortable using this expert. You will have to be careful here to not influence her decision. If this is the only expert available, your discussion with her should center on what her concerns are about the expert and whether they are so strong that she would rather proceed without one. It may be that she does not like the expert’s manner but is still willing to proceed. Make sure that you fully discuss the pros and cons of this decision and let her think about it before deciding.

After the meeting, interview the expert again. Ask her how she views your client. Questions might include:  What symptoms did you notice?  What do you believe is the client’s mental health concern?  How do these symptoms arise?  Is this normal given the situation that the client was in?  Does her mental health concern affect her ability to parent? If so, how?  What resilience factors did the expert identify? What protective factors?  What does the expert believe to be the best result in this case?  Does she consider domestic violence (including coercion and intimidation) to be influencing your client’s behavior?  Is her response to domestic violence normal?

This discussion will let you know whether this is the expert you want to use in your client’s case. If she sees trauma and dissociation as an explanation for behavior others would see as odd, and views domestic violence as a series of tactics to gain and retain power and control over your client, then you likely have an expert with whom you can work.

27 The National Center on Domestic Violence, Trauma & Mental Health provides technical assistance on the intersection of trauma and domestic violence. Go to www.nationalcenterdvtraumamh.org. You can look for trauma experts through various web sites. The International Society for the Study of Trauma and Dissociation (ISSTD) has a directory of clinicians who practice in trauma and dissociation. See www.isst-d.org; Sidran Institute also maintains a list of clinicians, see www.sidran.org. See also the International Society for Traumatic Stress Studies (ISTSS) at www.istss.org.

49 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

Preparing the Expert Witness

The expert should meet with your client and her child(ren) in order to determine your client’s ability to function and parent her child(ren), despite the trauma she endured. The central issue here is the well-being of the child(ren). If your client can parent well with some limitations, the expert should show the court how resilient and resourceful the client is and how she is showing her child(ren) how much she loves them. The expert should not enter into an analysis of her diagnosis outside of its relevance to her role as a parent.

Challenging the Opposing Party’s Experts

You can use the same strategies in finding an expert to challenge the opposing side’s witness. Is the witness an expert on trauma and dissociation? Does the expert know the meaning of a flat affect or dazed look? Is she only familiar with Post Traumatic Stress Disorder? This is only one of a number of issues that can develop when a person has been traumatized. Is your expert familiar with the concept of complex developmental trauma? Does the expert conduct clinical work? What kind of clients does the expert normally work with? If she does not routinely work with individuals experiencing trauma and dissociation, then hers may be a superficial analysis. A person who routinely works with clients experiencing trauma and dissociation is in the best position to normalize the behavior. Anyone else is likely to psychopathologize the behavior and conclude that the individual is limited. Does the expert understand both complex trauma and dissociation? Is he or she able to put trauma-related symptoms in context and recognize them as adaptations and as coping mechanisms to survive overwhelming trauma and to help the judge/jury make sense of the survivor’s responses in the face of ongoing abuse? However, it is important to not raise this if your own witness does not meet this standard. If you do, you will impeach your own witness.

You may also challenge the expert’s knowledge of interpersonal violence, and, in particular, the tools of power and control that abusers use. Be cautious here, though, if your expert is not familiar with these issues.

Section Seven: Cross-Examining the Opposing Party

In many custody and protection order cases, the opposing party will attempt to bolster his or her case and refute allegations of abuse by claiming that the survivor has mental health problems and therefore:

(a) She cannot be believed; (b) She becomes out of control and violent and needs to be restrained; and/or (c) She is an incompetent parent.

One way that the opposing party will try to demonstrate this is through his direct testimony. Below are some examples of testimony that an abuser may proffer:

 The opposing party may claim that he has observed the survivor behaving in bizarre, unusual, or unsafe ways due to mental illness.

 The opposing party may argue that, because the survivor has been diagnosed with a particular mental health disorder, she suffers from delusions that distort her perceptions and, therefore, her claims and testimony lack credibility.

 If there is evidence of an incident in which the opposing party used force or threatened the use of force against the survivor (e.g., police reports documenting an incident of abuse or the survivor’s and/or another witness’s direct testimony), the opposing party may claim that he only touched her to “restrain” her because she was “out of control” (leading him to believe that she would imminently assault him), she made direct threats to harm him, or to defend himself because she used force against him. While many judges understand the concept of the primary or predominant aggressor, they may be more likely to believe that the survivor acted in a violent manner when the mental health of the survivor has been raised as an issue. Given the stigma that is associated with mental health and the myth that individuals with mental illness are more likely to be violent, this can be a convincing argument to some judges.

 The opposing party may offer information about the kinds of medications that the survivor has been prescribed or has taken.

Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

 He may claim that your client has engaged in self-harm due to her mental health symptoms.

 The opposing party may offer details of treatment that the survivor has received, including hospitalizations, and information about communications with her mental health provider(s).

 The opposing party may claim that your client is not capable of fulfilling her parental responsibilities due to mental health symptoms.

 Apart from the affirmative opportunity to tell her own story during direct examination, you can use cross-examination to discredit the opposing party’s testimony. You can also use cross-examination to support aspects of your client’s case.

Cross-Examination Points to Remember

 The scope is limited to areas about which the witness testified during direct- examination and, therefore, must be relevant. The judge has the discretion to determine the subject matter boundaries.  If the questions you wish to ask are outside of the subject matter about which the witness testified during direct examination, you can recall the witness during presentation of your client’s case-in-chief and question him as a hostile witness.  Look for answers that will support closing argument statements.  Craft your questions so that they are narrow and leading.  Try to limit your questions to those that require a yes or no answer and avoid open-ended responses.  Never ask a question that you don’t know the answer to already.

Listed below are some areas to consider focusing upon during cross-examination. Depending on the facts of the case, the strategy you have developed with your client, and the direct testimony of the opposing party, you may not need to cover all of the following.

52 Section Seven: Cross-Examining the Opposing Party

(1) The opposing party’s abuse of your client.

(a) He was the predominant aggressor. For example, if the opposing party has claimed that he used force against your client only to restrain her because she was threatening him, using violence, or was out of control, you can ask questions designed to demonstrate that he was the predominant aggressor such as circumstances that triggered his violence, his mood, and her injuries versus his.

Example:

She wasn’t listening to you, right? Her comments were disrespectful? They made you angry?

(b) His lack of fear of your client. If he claims that he had to use force against your client because he was afraid of her violence or threats, you can ask him to verify his height and weight and your client’s, you can ask questions that demonstrate that he was not afraid and did not take action to keep himself safe.

Example:

You care about your health, right? You work out at the gym? You encourage your wife to exercise, too? But she rarely does? You are a big guy? You are 6 feet tall, correct? You weight about 200 pounds? Your wife is about 5 feet, four inches tall? She weighs about 130 pounds?

(c) Prior acts of abuse. The opposing party may have provided direct testimony that he is not a domestic abuser and that your client has perpetrated violence. He may, for example, testify that he had to restrain her because she was “out of control” due to her mental health challenges and that her claims of his abuse against her are false. If you have collateral evidence of prior abuse against your client or another individual, you can

53 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

impeach him by asking him about past abusive behavior28 including civil protection orders entered against the opposing party, criminal orders, or arrests or convictions for crimes of domestic violence. If the opposing party denies any of these, you can show the opposing party documentation of the prior act(s) and ask that it be entered into evidence.

Example:

When you met my client, you were dating another woman, correct? Ms. Palmer? You shared an apartment? That relationship ended in 2000? She ended it, didn’t she? She ended it because you had been physically abusive to her, right? Regardless of it how ended, you did engage in acts of abuse against her, right? Isn’t it true that Ms Palmer obtained a Civil Protection Order against you?

If he answers no, proceed with the following impeachment:

I would like to show the witness a document marked Exhibit A for impeachment purposes. Your Honor, may I have permission to approach the witness? Do you recognize this document? This is a Civil Protection Order entered by this court in the year 2000, correct? If you look at the top of the document that says Petitioner, it lists Lisa Palmer, correct? You understand that Petitioner means the person seeking the Civil Protection Order, right? Under Respondent, it has your name, right? And Respondent is the person against whom protection is sought? Isn’t it true that on June 1, 2000, the Superior Court of XY entered an Order of Protection against you?

28 In a custody case or protection order case, you may be able to enter evidence of prior acts of abuse, in your case-in- chief, as well, because many State custody statutes direct the court to consider domestic violence when conducting a best interest analysis, and evidence of past acts of abuse is often allowable in a protection order proceeding.

54 Section Seven: Cross-Examining the Opposing Party

(2) The opposing party’s manipulation of your client’s mental health and exacerbation of mental health symptoms.

(a) Infliction of psychological abuse on your client. If the opposing party testified that your client demonstrates symptoms of depression or other mental health conditions, you can ask questions designed to demonstrate that he has inflicted psychological abuse upon your client. For example, you can ask about attempts to shame, embarrass, or induce guilt in your client.

Example:

You were home on Sunday morning? Your wife was in the kitchen, right? She was making breakfast? You smelled something burning? You saw smoke coming from the frying pan? Your wife had burnt the pancakes, right? She wasn’t paying attention? She messes things up in the kitchen? She doesn’t know how to cook? You told her that, right? She doesn’t know how to take care of her family? You told her that, right? She’s a slow learner?

(b) Actions that were designed to trigger trauma and exacerbate mental health symptoms. If the opposing party has testified about behaviors that he attributes to your client’s mental health condition or diagnosis, you can ask questions that point to his manipulation of her mental health. For example, you can ask questions about how he has deprived your client of sleep, food or other basic necessities, prescription medications, or access to other treatment.

Example:

Your wife takes medications, right? For her psychiatric condition? You think she doesn’t need the medications? You try to help her? You keep them in a safe place?

55 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

So that she’s not tempted to take them? She is supposed to see her psychiatrist once a month, right? She needs you to drive her there? Because you have the only car? She has no other way to get there? You took her there last year? Two times? She couldn’t get her prescriptions refilled? Because she needed to see her psychiatrist for that, right?

Additionally, you can ask questions designed to point to the opposing party’s use of coercion, force, or other pressure on your client to use alcohol, illegal drugs, or prescription drugs that were not prescribed to her.

(c) Apparent self-harm by your client was actually perpetrated by the opposing party. If the opposing party claims that any overdoses that your client experienced were the result of a suicide attempt, you can ask questions designed to point to the fact that your client suffered the overdose due to his use of force, coercion, duress, or fraud that compelled your client to take the drugs.

Example:

Your wife needed to get help? She went to a psychiatrist? The psychiatrist gave her pills? You wanted her to feel better? You encouraged her to take the pills? You were standing there while she took the pills? You got the water for her? She took 20 of these pills? While you were standing there?

(d) The opposing party’s abuse led to or exacerbated your client’s mental health symptoms. You can ask questions designed to highlight the fact that your client did not suffer from trauma or other mental health challenges before she met and became involved with the opposing party. This goes to the fact that she developed symptoms of depression, anxiety, and/or trauma after beginning a relationship with the opposing party, and that they were natural reactions to and results of his abuse.

56 Section Seven: Cross-Examining the Opposing Party

Example:

When you met your wife, you fell in love? She was beautiful? She was kind? She was happy? But, she has changed, hasn’t she? The changes started a couple of years ago? She couldn’t get out of bed some mornings? She didn’t go out as much?

(e) The opposing party attempted to manipulate mental health providers and your client by interfering with treatment or fabricating information designed to trigger her hospitalization. The opposing party may have offered testimony in which he painted himself as a compassionate partner and who was concerned about the mental health of your client. You can ask questions designed to point to the opposing party’s attempts to manipulate mental health providers and further his control over your client by providing false information to them.

Example:

You told the police that your wife had gone crazy, right? That she had smashed the mirror? That she had torn up the place? Because she had mental health problems? You were afraid that she was going to hurt you or the kids? She had come after you? You had to restrain her? That’s how she got those red marks? You recommended that the police bring your wife to the hospital, right? You knew they would keep her at the hospital for 36 hours, isn’t that right? Last time, the hospital held your wife for 36 hours?

(3) Your client’s strength and resilience.

(a) Your client has excellent parenting skills that are not affected by any mental health challenge. You can ask questions designed to refute any claims that the opposing party has made about your client’s ability to parent the child(ren) because of her mental

57 Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

health symptoms and his argument that she is not the primary caretaker. For example, you can ask leading questions that demonstrate and bolster your client’s direct examination testimony that your client fulfills the majority of the parenting roles and takes care of the children/ren’s physical needs (e.g., preparing meals, getting them ready for school, dropping off or picking them up at school or daycare, caring for them when they are ill, taking them to the doctor, overseeing their bedtime routine, reading to them or helping them with homework, taking them on outings, purchasing their clothing and school supplies, etc.), social-emotional needs (e.g., comforting, being affectionate, talking with the child(ren) about their day and about things that happened, discussing social expectations, etc.), and mental growth/schooling needs (e.g., answering questions about how the world works, providing help with homework, involvement with their school activities and attending parent-teacher meetings, etc.). You can ask questions designed to illustrate that your client has fulfilled these roles at times that the opposing party says that she was exhibiting mental health symptoms.

Example:

Your wife gets the kids up in the morning, right? She makes them breakfast? And helps them get dressed? And makes their lunches for school? She makes sure they brush their hair and their teeth? She walks them to the bus stop and waits with them every morning, right? In the afternoon she meets them at the bus stop? And walks them home? She helps them with their homework while she makes dinner, doesn’t she? She helps them get ready for bed and reads to them? Etc.

(b) Your client has shown strength by seeking mental health support when necessary. If the opposing party has testified that your client’s mental health challenges prevent her from being a good parent to the child(ren), you can ask questions designed to illustrate that your client’s help-seeking behavior is a strength. For example, you can ask leading questions about when your client first sought assistance from a domestic violence advocate or mental health provider.

Example:

Your wife was feeling tired?

58 Section Seven: Cross-Examining the Opposing Party

She had trouble sleeping at night? And she didn’t know what was wrong? She asked you to take her to the doctor? And her doctor gave her a prescription, right? She got the prescription filled at the pharmacy, didn’t she? She also went to see a social worker? The social worker had been recommended by her doctor? You didn’t want her to go? But she went anyway?

(c) Your client has anticipated times when her mental health symptoms may be exacerbated and has taken steps to ensure that her children will be cared for. If your client has symptoms of or a diagnosis of a serious mental illness for which symptoms can recur, you can ask questions designed to draw out information about how your client has taken steps to ensure that the children are taken care of and have their needs met in the event that she becomes temporarily unavailable.

Example:

Your wife told you that if she needed to go to the hospital again, that she wanted her mother to take care of the kids, right? She wanted to make sure that the kids would be cared for during that time? She wanted you to take them to her mother’s house? Her mother agreed to this? Her mother would take them to school? And help them with their schoolwork? And give them anything they needed?

Section Eight: Closing Argument

The closing argument is a summation of your case theory and the evidence that you have presented. Do not opt out of a closing argument, even if you think that the judge has all of the information that he or she needs to make a decision. The closing is the only opportunity you have to present your entire case theory along with the supporting evidence. In a custody case that involves allegations regarding your client’s mental health, it is your final chance to articulate your legal argument regarding best interests of the child, to highlight your client’s strengths, resilience, and parenting skills, and to remind the court that the opposing party has abused your client to the point of causing or exacerbating mental health symptoms. In a protection order case, you can use your closing argument to review the standard of proof, the elements of the protection order statute, and the testimony and other evidence that meet the criteria and demonstrate the need for the relief your client seeks.

Below are suggestions for closing arguments that specifically relate to cases in which the opposing party has raised the mental health of your client as a reason why her allegations of domestic violence should not be believed and/or why she the court should not award custody of the child(ren) to her. When crafting your argument, consider the culture of the court, the facts of the case, the laws of your jurisdiction, and the needs and desired outcomes expressed by your client.

Focus on Your Client’s Strengths

When seeking custody, emphasize your client’s fitness and competence as a parent – reiterate her skills as primary caretaker. Highlight her resilience. Depending on the type of mental health evidence that the opposing party introduced (through testimony, experts, or mental health records), review your client’s protective parenting strategies and the strengths that your client and others presented in their testimony related to any mental health challenges. This includes her help-seeking behaviors and caring for her children even while experiencing symptoms. If relevant, review the ways that she has planned for mental health contingencies, such as through the preparation of advance directives.

Review the Legal Standard Governing Custody Cases Involving Domestic Violence

If your state has a presumption against an award of custody to a parent who has committed intimate partner abuse, articulate the presumption provision and highlight

Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges the evidence of abuse in the case before the court. If your state requires that the court consider domestic violence in its best interest determination, highlight the statutory language for the court and illustrate the impact of the batterer’s conduct on the child and the protective parent.

Remind the Court that the Opposing Party Caused Your Client’s Mental Health Challenges

If the opposing party has introduced evidence about your client’s mental health in an effort to discredit her testimony or impugn her parenting abilities, highlight the expert testimony or other evidence that shows that your client’s trauma and/or other mental health challenges were created or exacerbated by the opposing party’s abuse. Argue that the opposing party should not gain advantage in the case due to the trauma that he caused your client. If your state has a statutory provision that prohibits the effects of domestic violence from being used against a party in a custody case, reiterate the requirements of the code section. Refer to any social science research that you introduced during the course of the case demonstrating that the mental health of survivors improves when the abuse ceases.

Demonstrate How Your Expert’s Opinions Support a Custody Award to Your Client

Review your expert’s testimony regarding your client’s strengths, resilience, and protective factors, and any other evidence that normalizes your client’s mental health response to living with an abuser. If the opposing party introduced evidence of your client’s mental health diagnosis, refer to expert testimony clarifying that this does not negate her ability to function as a stable, competent, and loving parent. Review your expert’s testimony about the spectrum of mental health challenges and your client’s ability to manage any symptoms she may experience in the future. Refer to testimony that explains your client’s behavior in court or any behavior that the opposing party claims is indicative of instability.

Highlight Prior Acts of Abuse

While the focus of closing should not be entirely on the opposing party, you should highlight prior acts of abuse that you introduced, including the batterer’s use of power and control, rulemaking, and the ways that he has manipulated your client’s mental health.

62 Section Eight: Closing Argument

Point Out False Statements

If the opposing party presented false or misleading testimony related to your client’s mental health, the abuse, or any other factor, summarize the evidence that refuted it, including testimony that the opposing party gave during cross-examination as well as that which your client offered on rebuttal.

Discredit the Custody Evaluator’s Findings

If the opposing party used an expert and/or if there was a custody evaluator, point out the lack of training or expertise in domestic violence and trauma (and their intersection), and/or bias. Demonstrate gaps in the evaluator’s investigation or assessment, or other problems with the evaluation process (including improper use of psychological testing and misinterpretation of statements or behaviors). If the custody evaluator has relied upon Parental Alienation Syndrome or any other questionable theory, clarify that the evaluation findings (if the recommendation is for an award of custody to the opposing party) rest upon discredited or disproven theories.

Additional Resources

Materials

Deborah Bray Haddock, MEd, MA, LP, The Dissociative Identity Disorder Sourcebook (McGraw-Hill 2001).

Edward W. Gondolf, Assessing Woman Battering in Mental Health Services (Sage Publications 1997). http://www.sagepub.com/books/Book6702

Frank W. Putnam, Dissociation in Children and Adolescents: A Developmental Perspective (Guilford Press 1997).

From Child Sexual Abuse to Adult Sexual Risk: Trauma, Revictimization, and Intervention (Linda J. Koenig, Lynda S. Doll, Ann O’Leary and Willo Pequegnat, eds., American Psychological Association 2004).

Jill Davies, Advocacy Beyond Leaving: Helping Battered Women in Contact with Current or Former Partners (Family Violence Prevention Fund 2009). http://www.vawnet.org/summary.php?doc_id=2674&find_type=web_sum_GC

Jill Davies, An Approach to Legal Advocacy with Individual Battered Women (Greater Hartford Legal Assistance 2003). http://www.csaj.org/documents/384.pdf

Jill Davies, Eleanor Lyon, and Diane Monti-Catania, Safety Planning with Battered Women: Complex Lives/Difficult Choices (Sage Publications 1998).

Jill Davies, Helping Sexual Assault Survivors with Multiple Victimizations and Needs, A Guide for Agencies Serving Sexual Assault Survivors (July 2007). http://www.nsvrc.org/publications/guides/helping-sexual-assault-survivors-multiple- victimizations-and-needs-guide-agencie

Jill Davies, Safety Planning With Battered Women (Greater Hartford Legal Assistance 1997). http://new.vawnet.org/Assoc_Files_VAWnet/BCS_SafePlan.pdf

Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges

The Journal of Trauma and Dissociation http://www.isst-d.org/jtd/journal-trauma-dissociation-index.htm

Judith Herman, MD, Trauma and Recovery: The Aftermath of Violence – From Domestic Abuse to Political Terror (Basic Books 1997).

Lisa A. Goodman and Deborah Epstein, Listening to Battered Women: A Survivor-Centered Approach to Advocacy, Mental Health and Justice (American Psychological Association 2008).

Marlene E. Hunter, MD, Understanding Dissociative Disorders: A Guide for Family Physicians and Health Care Professionals (Crown House Publishing 2004).

Olga R. Trujillo, JD, The Sum of My Parts: A Survivor’s Story of Dissociative Identity Disorder (New Harbinger Publications 2011).

Organizations and Web Sites

Center for Survivor Agency and Justice www.csaj.org

The International Society for the Study of Trauma and Dissociation www.isst-d.org

Judge David L. Bazelon Center for Mental Health Law www.bazelon.org

National Center on Domestic Violence, Trauma & Mental Health www.nationalcenterdvtraumamh.org

Sidran Institute www.sidran.org

The Significant Other's Guide to Dissociative Identity Disorder http://www.op.net/~jeffv/so1.htm

UPenn Collaborative on Community Integration www.med.upenn.edu/psych/RRTC.html

66 Additional Resources

When a Parent Has a Mental Illness: Child Custody Issues (Mental Health America) http://www.nmha.org/go/information/get-info/strengthening-families/when-a-parent- has-a-mental-illness-child-custody-issues

Attachment 10

Trauma & Memory: A Curated Selection of Resources for Attorneys and Legal Advocates

This annotated bibliography was created by Mayra Gomez as part of NCDVTMH’s Trauma-Informed Legal Advocacy (TILA) Project. The TILA Project offers guidance on applying trauma-informed principles to working with survivors of domestic violence in the context of legal proceedings. For find more TILA Project resources, visit our website: www.nationalcenterdvtraumamh.org.

In order for lawyers and legal advocates to take a trauma-informed approach to their work with trauma survivors, they must have a basic understanding of how trauma can affect the ways that survivors think, feel, and interact with other people and the world. The articles in this collection provide information on the effects that trauma can have on the brain, with a focus on the impact of trauma on an individual’s memory. Rather than an exhaustive list of the research on trauma and memory, this collection is merely a starting point for self-study. Nonetheless, the articles in this collection provide a helpful beginning framework for embarking on this endeavor, especially for those who are interested in the implications of this research to survivors involved in legal cases. Articles that are available in full text format online were prioritized for inclusion.

Section 1: Introduction to Trauma and Memory

Trauma and Memory

Written by Bessel van der Kolk, a nationally recognized trauma expert, this article provides an excellent introduction to and overview of the literature on trauma and memory. It includes a review of studies that have been conducted to examine the differences between memories of highly stressful (but non-traumatic) experiences and traumatic experiences.

Citation: Bessel A. van der Kolk, Trauma and Memory, 52 PSYCHIATRY & CLINICAL NEUROSCIENCES 52 (1998).

September 2016 P: (312) 726-7020 TTY: (312) 726-4110 www.nationalcenterdvtraumamh.org

This article is available at: http://onlinelibrary.wiley.com/doi/10.1046/j.1440- 1819.1998.0520s5S97.x/full

Abstract: The study of traumatic memories challenges several basic notions about the nature of memory: (i) that memory always is a constructive process; (ii) that memory is primarily declarative (i.e. that people can articulate what they know in words and symbol); (iii) that memory is present in consciousness in a continuous and uninterrupted fashion; and (iv) that memory always disintegrates in accuracy over time. A century of study of traumatic memories shows that (i) semantic representations may coexist with sensory imprints; (ii) unlike trauma narratives, these sensory experiences often remain stable over time, unaltered by other life experiences; (iii) they may return, triggered by reminders, with a vividness as if the experience were happening all over again; and (iv) these flashbacks may occur in a mental state in which victims are unable to precisely articulate what they are feeling and thinking. The present paper reviews the literature on memories and discusses the recent neuroimaging studies which seem to clarify the neurobiological underpinnings of the differences between ordinary and traumatic memories.

Medical Effects of Trauma: A Guide for Lawyers

Citation: Heather Forkey, Medical Effects of Trauma: A Guide for Lawyers, American Bar Association: Center on Children & the Law.

The full text of this article is available at: http://www.americanbar.org/groups/child_law/what_we_do/projects/child- and-adolescent-health/polyvictimization/medical-effects-of-trauma--a-guide- for-lawyers.html

Excerpt: “Children’s lawyers are well positioned to help guide children and families dealing with trauma. Vigilance on your part, including childhood adversity and toxic stress when considering health and behavior issues, and understanding the different ways trauma presents will help you recognize harmful experiences and their impact. The danger of failing to recognize adversity and the physiologic response as a possible cause of health and behavior concerns is missing or misattributing symptoms to other causes. By recognizing the impact of negative family experiences on child health and development, you can engage community health providers to address these needs effectively. Your guidance can help children understand that, while

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bad things may have happened to them, their responses are expected and manageable. In this context, the child and family can work toward health, wellness, and achieving the child’s potential.”

Section 2: Recent Research on Memory & PTSD

The following articles represent a sampling of recent psychological research on memory, trauma, and PTSD.

Retrieval Inhibition in Posttraumatic Stress Disorder

Citation: Lucy M. Kenny & Richard A. Bryant, Retrieval Inhibition in Posttraumatic Stress Disorder, 5 PSYCHOL. TRAUMA: THEORY, RESEARCH, PRAC. & POL’Y 35 (2013).

Excerpt: “There is considerable debate concerning the nature of memory for traumatic events in people affected by trauma. This study investigated memory inhibition in posttraumatic stress disorder (PTSD) using the retrieval-induced forgetting (RIF) paradigm. Fifteen trauma survivors with PTSD, 15 participants who had recovered from PTSD, and 14 trauma survivors who had never developed PTSD learned two categories of trauma- related words and two categories of neutral words. They then practiced half of the words in one neutral and one trauma-related category before being tested on their memory for words from all categories. The results indicated an RIF effect for trauma-related words in the PTSD group, while the two non-PTSD groups did not show this effect. These results suggest that repeated focus on certain trauma-related information may impair retrieval of other trauma-related information in individuals with PTSD.”

White Matter Integrity in Highly Traumatized Adults With and Without Post-Traumatic Stress Disorder

Citation: Negar Fani, et al., White Matter Integrity in Highly Traumatized Adults With and Without Post-Traumatic Stress Disorder, 37 NEUROPSYCHOPHARMACOLOGY 2740 (2016).

The full text of this article is available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3473340/

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Excerpt: “Prior structural imaging studies of post-traumatic stress disorder (PTSD) have observed smaller volumes of the hippocampus and cingulate cortex, yet little is known about the integrity of white matter connections between these structures in PTSD samples. The few published studies using diffusion tensor imaging (DTI) to measure white matter integrity in PTSD have described individuals with focal trauma rather than chronically stressed individuals, which limits generalization of findings to this population; in addition, these studies have lacked traumatized comparison groups without PTSD. The present DTI study examined microstructural integrity of white matter tracts in a sample of highly traumatized African-American women with (n¼25) and without (n¼26) PTSD using a tract-based spatial statistical approach, with threshold-free cluster enhancement. Our findings indicated that, relative to comparably traumatized controls, decreased integrity (measured by fractional anisotropy) of the posterior cingulum was observed in participants with PTSD (po0.05). These findings indicate that reduced microarchitectural integrity of the cingulum, a white matter fiber that connects the entorhinal and cingulate cortices, appears to be associated with PTSD symptomatology. The role of this pathway in problems that characterize PTSD, such as inadequate extinction of learned fear, as well as attention and explicit memory functions, are discussed.”

Integration and Organization of Trauma Memories and Posttraumatic Symptoms

Citation: Richard O'Kearney, et al., Integration and Organization of Trauma Memories and Posttraumatic Symptoms, 24 J. TRAUMATIC STRESS 716 (2011).

The full text of this article is available at: https://www.researchgate.net/publication/51828014_Integration_and_organ ization_of_trauma_memories_and_posttraumatic_symptoms

Abstract: To examine the connection between trauma memory integration in personal memory, memory organization, and posttraumatic symptom severity, 47 trauma-exposed adults undertook an event-cuing task for their trauma memory and for a memorable nontraumatic negative event. Measures of integration provided by self-endorsement, rated by na¨ıve judges, or calculated from the language of the memories, did not significantly predict posttraumatic stress disorder symptom severity after adjusting for age, time since the event, anxiety when disclosing, familiarity of the memory, and integration of nontrauma memory. Less use of casual connectives in the trauma memory narrative was associated with higher

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trauma-related avoidance (r = .33; p = .03), whereas self-rating of the trauma memory as disorganized was associated with higher overall symptom severity (r = .42; p = .006).

Does trauma memory play a role in the experience of reporting sexual assault during police interviews? An exploratory study

Citation: Amy Hardy, et al., Does Trauma Memory Play a Role in the Experience of Reporting Sexual Assault during Police Interviews? An Exploratory Study, 17 MEMORY 783 (2009).

The full text of this article is available at: https://www.researchgate.net/publication/26720107_Does_Trauma_Memor y_Play_a_Role_in_the_Experience_of_Reporting_Sexual_Assault_during_Poli ce_Interviews_An_Exploratory_Study

Excerpt: “This is a study that demonstrates the impact of trauma-related memory processes on victims’ experience of police interviews when reporting sexual assault. This study found that typical psychological reactions to trauma actually contribute to the attrition of sexual assault cases, such that victims who are most affected by sexual assault may be the least likely to proceed with the criminal justice process.”

Section 3: Trauma & Memory in Asylum & Immigration Proceedings

Many asylum or immigration processes require the applicant to extensively recount and record memories of a traumatic event. In these cases, lawyers and legal advocates have dual goals: to elicit from the client the memories necessary to compose the best possible application for relief, while also minimizing the traumatic impact of this process on the survivor. An extensive body of literature addresses memory among survivors of trauma who are applying for asylum or immigration relief. The following is a selection of some of these resources.

While many of these research studies examine the impact of trauma on the memory of asylum applicants and/or the accuracy of their memories, the findings are, of course, relevant to a wide range of trauma survivors, including those who may be involved in custody or order of protection cases.

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Asylum Claims and Memory of Trauma: Sharing our Knowledge

Citation: Jane Herlihy & Stuart W. Turner, Asylum Claims and Memory of Trauma: Sharing Our Knowledge, 191 BRITISH J. PSYCHIATRY 3 (2007).

The full text of this article is available at: http://bjp.rcpsych.org/content/191/1/3.full-text.pdf+html

Abstract: Asylum cases are made difficult by the absence of a body of objective evidence. Psychiatrists and psychologists have a breadth of knowledge relating to the memory of trauma, which could help to inform the asylum process, but we need to investigate how to apply this knowledge and how to make it accessible to decision makers.

Memory and Its Implications for Asylum Decisions

Citation: Jessica Chaudhary, Memory and Its Implications for Asylum Decisions, 6 J. HEALTH & BIOMEDICAL L. 37 (2010).

The full text of this article is available at: http://suffolk.edu/documents/Law%20Journal%20of%20H%20and%20B/Ch audhary-37-63.pdf

Excerpt: “The determination of whether an individual's circumstances merit the granting of asylum status is a challenging decision. An adjudicator often relies on intangible evidence, the applicant's story, and limited documentation. This story can be filled with numerous inconsistencies and omissions, leaving an adjudicator inevitably questioning the veracity of the applicant's story. Because there is often minimal physical evidence to support an applicant's claim, what is left is the individual's recollection of the events, upon which the approval of asylum hinges. These events can be traumatic, and the consequences of witnessing the traumatic events, or experiencing unspeakable abuses, can lead to psychiatric disorders as well as difficulties in recall.

Inconsistencies in memory do not necessarily equate to willful misrepresentation, and must be considered carefully in the context of the applicant's entire story. The study of memory is extremely complicated, and while this paper will not address every condition that could lead to impairments in memory, it will discuss common misperceptions about

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memory as well as the role of common psychiatric diseases in memory impairments. Further, this paper hopes to be of assistance to attorneys representing clients seeking asylum and triers of fact adjudicating asylum cases.”

Credibility of Asylum Claims: Consistency and Accuracy of Autobiographical Memory Reports Following Trauma

Citation: Amina Memon, Credibility Of Asylum Claims: Consistency And Accuracy Of Autobiographical Memory Reports Following Trauma Credibility Of Asylum Claims: Consistency And Accuracy Of Autobiographical Memory Reports Following Trauma, 25 APPLIED COGNITIVE PSYCHOL. 677 (2012).

The full text of this article is available at: http://www.pc.rhul.ac.uk/sites/rheg/wp-content/uploads/2011/05/Memon- 2012.pdf

Abstract: [This article appears in a collection in which the editors] review the literature on the characteristics of autobiographical memory in asylum seekers who are presenting evidence of their traumatic experiences in the immigration courts with a view to finding a safe haven. In this commentary, [Memon] briefly discuss[es] how the quality of the memory report may influence reliability and credibility judgements in individuals whose memories may be subject to post-traumatic stress disorder.

Cultural Differences in Specificity of Autobiographical Memories: Implications for Asylum Decisions Citation: Laura Jobson, Cultural Differences in Specificity of Autobiographical Memories: Implications for Asylum Decisions, 16 Psychiatry, Psychol. & L. 453 (2009).

Abstract: Current knowledge about cultural differences in the trauma autobiographical memory is limited. Such a limitation reduces the body of empirical evidence that can be drawn upon to inform decisions about asylum. The objective of this study was to explore the impact of cultural differences in self-construal on the specificity of autobiographical memories. Research participants from independent and interdependent cultures were asked to provide autobiographical memories of everyday events, trauma

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events and self-defining memories. Those from independent cultures consistently provided more specific autobiographical memories than those from interdependent cultures. The findings indicate that specificity has an essential role in enhancing the dominant self-focus and needs to be considered when deeming a memory as credible.

Just Tell Us What Happened to You: Autobiographical Memory and Seeking Asylum

Citation: Jane Herlihy, et al., Just Tell Us What Happened to You: Autobiographical Memory and Seeking Asylum. 26 APPLIED COGNITIVE PSYCHOL. 661 (2012).

The full text of this article is available at: http://csel.org.uk/assets/images/resources/herlihy-jobson-turner-2012- acp/Just-Tell-Us-pre-print.pdf

Abstract: When someone flees their country and seeks the protection of another state, they usually have to describe what happened to make them afraid to return. This task requires many psychological processes, a key one being autobiographical memory. Memory for events of a specific time and place in one’s personal past is the subject of a huge literature, much of it showing that recall is vulnerable to distortions and biases. We review selected areas of this literature, shedding light on some of the processes at work when someone seeks to be recognised as a refugee—in particular, the effects of emotion, including emotional disorder. We then turn to the differing types of memory styles seen in different cultures. Crucial to this area, we briefly examine the current literature on deception. Finally, we draw on the reviewed literature to present conclusions about the reliance on autobiographical memories in the asylum process.

Overgeneral memory in asylum seekers and refugees

Citation: Belinda Graham, et al., Overgeneral Memory in Asylum Seekers and Refugees, 45 J. BEHAVIOR THERAPY & EXPERIMENTAL PSYCHIATRY 375 (2014).

This article is available at: http://csel.org.uk/assets/images/resources/graham-herlihy-brewin-2014- jbtep/graham-herlihy-brewin-overgeneral-memory.pdf

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Abstract: Studies in western samples have shown that post-traumatic stress disorder (PTSD) and depression are associated with overgeneral autobiographical memory retrieval. This study assesses whether this association extends to asylum seekers and refugees from diverse cultural backgrounds. We discuss implications for those providing testimony of their experiences when seeking asylum. Method: 38 asylum seekers and refugees were recruited through clinics and community groups. Clinical interviews assessed PTSD and depression and participants completed a test of autobiographical memory specificity. Results: When accounting for omissions, participants with PTSD and depression recalled a lower proportion of specific memories. Those with PTSD also failed more frequently to report any memory. Limitations: The sample did not permit separate evaluation of the effects of PTSD and depression on specificity. Conclusions: Lower memory specificity observed in people experiencing PTSD and depression in western populations extends to asylum seekers and refugees from diverse cultural backgrounds. This study adds to the literature suggesting that being recognised as a refugee fleeing persecution is more difficult for those with post-traumatic symptoms and depression. Symptoms of Trauma Among Political Asylum Applicants: Don’t Be Fooled

Citation: Stuart L. Lustig. Symptoms of Trauma among Political Asylum Applicants: Don't Be Fooled, 31 HASTINGS INT’L & COMP. L. REV. 725 (2008).

Abstract: In summary, trauma is a common response to events perceived as life threatening, with associated neurobiological abnormalities. PTSD often is prevalent among asylum seekers. Symptoms include nightmares, flashbacks, intrusive memories, avoidance of triggers, numbing, hyperarousal, hypervigilance, and dissociation. Unfortunately for asylum applicants, their credibility in the courtroom may be undermined unless Immigration Judges and Asylum Officers are aware that trauma compromises consistent memories of the event, that avoidance of trigger- related stress or cultural factors such as shame may decrease their willingness or ability to disclose what has happened to them, and that PTSD symptoms do not affect daily activities in which memories of the trauma are not evoked. Eye contact is variable among cultures and may be diminished or absent in asylum applicants. Malingering (faking of illness) is usually easy to detect by psychiatric clinicians, but seldom occurs in this population.

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Adjudicators who keep in mind these signs of trauma will be less likely to wrongly conclude that an applicant lacks credibility when in fact he or she is suffering from a psychiatric disorder directly attributable to the trauma(s) in question.

Representing Trauma: Political Asylum Narrative

Citation: Amy Shuman & Carol Bohmer, Representing Trauma: Political Asylum Narrative, 117 J. AM. FOLKLORE 394 (2004).

Abstract: The trauma narratives told by refugees in their appeal for asylum status in the United States are culturally constructed, based not only on local cultural discourses for talking about grief, tragedy, struggle, and displacement, but also on the legal and bureaucratic cultures of the Bureau of Citizenship and Immigration Services (B.C.I.S.). On the basis of interviews with asylum seekers and with immigration lawyers and B.C.I.S. officials, we discuss the cultural obstacles of the asylum application process.

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