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Trauma, Trials and Transformation

Trauma, Trials and Transformation

Guiding sexual assault victims through the legal system and beyond

By Judith Daylen, Wendy van Tongeren Harvey and Dennis O'Toole

CONTENTSREVIEWS

Victims of sexual assault or abuse may feel that they face insurmountable obstacles to recovery or the pursuit of justice. The goal of this book is to facilitate their emotional and psychological journey and to demystify some of the complexities of the legal system. Although based on Canadian law and procedures, it will have practical application in most other countries.

Trauma, Trials, and Transformation is a guide for anyone who has been sexually assaulted and who wants to hold the offender accountable. It will also assist law enforcement, court, and helping professionals who work in this area.

What sets this book apart from other, similar legal guides is its focus on both the legal and the psychological perspective. Effective navigation of the complex legal system terrain requires not only knowledge of that system, how it works, who the main players are, and their views and objectives, but also emotional and psychological preparedness.

To write this guide, the authors have drawn on their first-hand experience in the courts, their direct professional experience with those who have been sexually assaulted or abused, and a review of the legal and psychological literature. The authors are a Crown prosecutor and two clinical psychologists.

Trauma, Trials, and Transformation is written in everyday, accessible language. The authors have included a glossary of common terms to assist the reader in communicating and understanding legal concepts when dealing with legal professionals. The appendices include some very practical checklists. The book also contains a special chapter on civil litigation, which summarizes some alternative methods of seeking redress following a sexual crime. The final chapter is devoted to the topics of systemic change and personal growth, illustrated with stories of inspirational people who transformed their lives and those around them in the aftermath of traumatic experiences.


CONTENTS

Summary Table of Contents

Foreword - Honourable Claire L'Heureux-Dubé
Ackowledgments
Introduction

CHAPTER 1: Sexual Crimes in Canada

CHAPTER 2: The Personal Impact of Sexual Crimes

CHAPTER 3: Starting Along the Healing Path

CHAPTER 4: Law and Human Factors

CHAPTER 5: A Psychological Tool Box

CHAPTER 6: Going to the Police

CHAPTER 7: Preparing for Court

CHAPTER 8: The Trial

CHAPTER 9: Sentencing

CHAPTER 10: Seeking Compensation

CHAPTER 11: Personal Growth and Transformation

Appendices
Legal Glossary

Chapter One

Sexual Crimes in Canada
What is a sexual crime?
Criminal Code changes / The Criminal Code defines offences at the time of commission
Sexual assaults as currently defined by the Criminal Code
Sexual assault with no weapon or bodily harm (level I) / Sexual assault with a weapon or bodily harm (level II) / Aggravated sexual assault (level III)
Consent – a key issue
What constitutes consent? / What constitutes honest mistaken belief in consent?
The wide ranges of sexual offences
Spreading diseases / Indecent, intrusive, and sexually exploitative acts / Sexual assault by a spouse / Date rape / Use of drugs or alcohol to obtain sex / Sex and power imbalance
Sexual offences against children and youth
When “yes” is not consent
Sexual offences against persons with disabilities
Other sexual offences
Incest / Corruption of a minor / When indecent is not illegal
Prevalence of sexual offending in Canada
Sexual offences are the least reported violent crimes
Who are the victims?
It can happen to anyone / Female victims / Male victims / Age victims / Low-income, underprivileged, and isolated communities / Other vulnerable groups
Who are the offenders?
Most victims know their assailant
Young offenders
Extrajudicial measures / Sentencing of young offenders / Rights of young persons
Vignette one: example of a sexual crime
Endnotes

Back to Summary Table of Contents

Chapter Two

The Personal Impact of Sexual Crimes
Shared and unique reactions
A wide range of consequences / Psychological problems can have many causes / Effects tend to shift and change over time / Does this truly apply to me?
The perceptions and experiences of others
Everyday stress
Anxiety: “fight or flight”
PTSD symptoms / Intrusive memories / Avoiding or numbing your feelings / Hyper-arousal / Other anxiety responses / Self-diagnosis
Depression: dark days and mood swings
Anger: the good, the bad, and the ugly
Mistrust: a loss of faith
The challenge of relationships
Distress is common
Your unique journey
Childhood / Being male or female / Cultural issues / Being deaf or blind / Being mentally challenged or physically disabled / Further personal characteristics and vulnerabilities / Crime characteristics
Examples of victim responses
Looking beyond the damages you have suffered
Remember – take care of yourself
Vignette two: a unique reaction
Endnotes

Back to Summary Table of Contents

Chapter Three

Starting Along the Healing Path
What is healing?
Is forgiveness necessary for healing?
The recovery process
Timing and pacing / Twists and turns along the way / Be patient and thoughtful / Going it alone
Seeking professional help
Cognitive-behavioural therapy / Psychodynamic psychotherapy / Eye movement desensitization and reprocessing (EMDR) / Other labels for psychotherapy / Pharmacological (drug) treatment
Choosing a mental health professional
Psychiatrists / Psychologists / Social workers / Other counsellors and therapists / The value and limitations of professional credentials / What to look for when choosing a therapist / What to be wary of / How to get appropriate referrals / The initial contact: you are not signing a lease / Paying for therapy
Adjuncts and alternatives to individual treatment
Group treatment / Culturally based treatment – a First Nations approach / Resource and rape crisis centres / Self-help books / Other publications and online resources / Are you going too fast?
Tensions between the legal system and healing
Vignette three: first steps to healing
Endnotes

Back to Summary Table of Contents

Chapter Four

Law and the Human Factors
Memory
Different kinds of memory / Memory is reconstructed / Emotional states and memory / Physical condition and memory / Memory cues / Enhancing recall / The recovered memory controversy / Memory in the courtroom
Relationship dynamics
Ways you may experience interpersonal stress
Reasons for negativity
Ignorance / Professional burnout / Limited psychological resources / Cultural beliefs and myths
Emotional buoyancy
De-personalize comments / Analyze your own reactions / Internally challenge and counteract negative messages / Avoid retaliation / Challenge inappropriate comments / Learn to recognize constructive criticism
Unique stressors
The adversarial proceedings / Loss of privacy / Length of the process / Over-focus on damages / Negative impact on family, friends, and support system
Unique benefits
Vignette four: memory issues
Endnotes

Back to Summary Table of Contents

Chapter Five

A Psychological Tool Box
Basic health-care
The benefits of sleep
Enhancing safety and comfort
Creating a safety plan / Enhance security with pets / Enhance emotional security with objects
Stress-reduction strategies
Progressive muscle relaxation / Breathing / Visualization
Containment strategies
Dealing with upsetting memories, images, or flashbacks / Dealing with anger
Distraction techniques
Grounding techniques
Mood-altering strategies
Countering negative thoughts / Countering feelings of shame / Boosting self-esteem / Dealing with suicidal thoughts and feelings / Supportive relationships / Make your own choices / Pace yourself / Develop casual friendships / Participate in group activities / Be selective about disclosure / Learn active listening / Work on developing trust / Diversify social contacts
The road to resilience
So what is resilience? / Ten ways to build resilience
Additional ways to build resilience
Write about feelings and thoughts / Spiritual practices / Cultivating mindfulness / Embracing humour / Expressing strong feelings and impulses / Learn to think “outside the box” / Be flexible and seek a balance in life / Patience / Get help when you need it
Some fundamentals of personal change
Small changes
Vignette five: coping and resilience
Endnotes

Back to Summary Table of Contents

Chapter Six

Going to the Police
Incentives for reporting a sexual crime
Consider your motives
Making a decision to report
Acting on the decision to report
Initial contact / Preparing mentally / Preparing emotionally / Prepare yourself physically / Evidence preservation
Reporting of sexual crimes
Third-party reports / Sex crimes involving children / Delayed reporting of sex crimes / Reporting an assault you had previously denied / Reporting without pressing charges / False reporting
The police investigation
Warnings to tell the truth / Face inconsistencies early and directly
Interviewing the complainant
The interview format
Taking a support person / Therapy is not a police offer’s job / Managing documents and records / Telling the story in your own words / Examining the details / Talking about sexual activity / No words are taboo / Questions about other sexual encounters / Talking about historic abuse / When the interview is complete
Interviewing children
Interviewing the child without the parent present / Other issues for a child
After the interview
Identifying the accused
Interviewing the suspect and others
The suspect’s statement is not shared / Interviewing other people
Collecting other evidence
The medical examination / Medical examination of the accused
Charge assessment
When police lay charges against your wishes
If criminal charges are not approved
The arrest
The suspect’s rights when arrested / Waiting for police to make the arrest / The bail hearing
Vignette six: unexpected consequences
Endnotes

Back to Summary Table of Contents

Chapter Seven

Preparing for Court
Preparation can make a difference
Recruiting a team to help you / Who is the Crown Prosecutor for your case?
Your first meeting with the Crown Prosecutor
Organizing and recording / Make a list of things to talk about / Reviewing your report of the crime / Withholding information about the case from you
Avoiding testimony
Talking to the defence lawyer
Rules of disclosure
The defence has a right to the fruits of the investigation
The rationale for disclosure rules
The accused and the accuser do not have equal rights
Disclosure of private records before the trial
How the defence gains access to private records / Be prepared to retain your own lawyer / Waiving your Criminal Code rights / How a judge decides to disclose a personal record / Preliminary hearing questions about private records / Possible consequences of a record request / Publication bans and closed courtrooms
The arraignment
The preliminary hearing
Direct indictment – a rare occurrence
What happens at a preliminary hearing
The Crown’s goal at a preliminary hearing / The prosecution strategy / The defence strategy / Witness testimony / Everything is recorded / How the hearing transcript will be used at the trial / Reading the transcript / How the hearing ends
Preparing for a preliminary hearing
Prepare for emotional turmoil / Prepare for compound questions / Say how you feel, out loud / Some matters are not within the purview of the preliminary hearing
Following the preliminary hearing
The guilty plea
The implications of a guilty plea
How the Crown negotiates the plea
What the defence and the Crown must agree on / Time and place for the guilty plea
The complainant’s role in plea negotiation
Discuss the plea only with the Crown
When negotiations fail
Children testifying
Should a child testify? / Preparing a child for court /
Where to get help
Vignette seven: unhelpful disclosure
Endnotes

Back to Summary Table of Contents

Chapter Eight

The Trial
The complainant as a witness
The presumption of innocence is paramount
Your courtroom role has limits / Using legal channels to change the law / Complying with the law is critical
Pretrial
Voir dire
The trial begins
The defence is invited to make a statement
The Crown’s case
The witnesses who are likely to be called / Accommodations for witnesses
The complainant’s testimony
Judging your credibility / Allowing for human nature
Taking the stand
Applying for an accommodation / Describing your complaint / Simply answering the questions / Avoiding hearsay evidence / Identifying the person who assaulted you / Identifying exhibits and documents / Questions about your memory
The cross-examination
Being tested on the stand / Language is important / Defence strategies and tactics / Listening carefully / Expressing your anger
Re-examination
Spending days on the stand
Likely defence arguments
Denial / Alibi / Consent / Mistake on the issue of consent / Mistake on the issue of age / Intoxication of the accused / Mistaken identity of the accused / Mistaken identity of the complainant / Behaviour was not sexual
The defence calls witnesses
Expert witnesses / Other witnesses / Reply or rebuttal evidence
Closing statements
The verdict
Following the verdict
Emotions and principles
Maintain a healthy perspective
Vignette eight: making accommodations
Endnotes

Back to Summary Table of Contents

Chapter Nine

Sentencing
Sentencing is not revenge
The justice system reflects the values of the community
The sentencing hearing
The facts / The offender’s criminal record / The Crown and the defence submissions / The offender’s chance to speak
Sentencing principles
Precedent and other sentencing issues / Maximum penalties are rarely imposed
Sentencing options
Circle sentencing
Prison
Sentence calculations and parole / Participating in the parole process / Prison sentences served in the community / Conditions imposed on the offender / Ordering the accused to undergo treatment / Enforcing court orders
Sentences without prison terms
Monetary fines / Restitution / Surcharges to support all victims of crime / Firearm prohibition
Sentencing provisions to protect the public
Providing a DNA sample / Safeguards for children / The National Sex Offender Registry / Dangerous offenders / Long-term offenders
The complainant’s role in sentencing
Submitting a VIS / Will the offender have access to the VIS? / New information / Editing, withholding, or sealing the VIS / Predicting the judge’s reaction / Other uses of the VIS / The VIS and civil litigation
Preparing a VIS
A case example / What not to include in a VIS
Preparing for sentencing
The emotional features
Sentencing and closure
Vignette nine: sentencing dissatisfaction
Endnotes

Back to Summary Table of Contents

Chapter Ten

Seeking Compensation
Seeking compensation through civil litigation
Similarities and differences between civil and criminal proceedings / What is a sexual tort claim? / Why consider filing a sexual tort claim? / Clarify your expectations and motivations
The financial costs and benefits of civil litigation
When can you sue?
Whom can you sue?
What damages have you suffered?
Non-pecuniary damages / Pecuniary damages / Aggravated damages / Punitive damages
Determining the amount or “quantum” of damages
Getting started: finding a lawyer
Where to look / The right experience / The right qualities / Obtaining an opinion about the strength of your case / Deciding to proceed / Retaining a lawyer
The step-by-step process of a civil suit
Data gathering and naming all the parties / Filing initial court documents / Legal response from the defendant / Disclosure and production of documents / Examination for discovery / Independent psychological/psychiatric assessment / Other expert evidence / Settlement and mediation / The trial / Receiving the decision and compensation
Dealing with civil trial stress
Class action suits
Other types of compensation
Vingette ten: not too late
Endnotes

Back to Summary Table of Contents

Chapter Eleven

Personal Growth and Transformation
Post-traumatic growth
Think about your own growth
Growth takes time / Incremental change / Reflect on positive change
Ways that people grow
Meaningful relationships / New possibilities / Spiritual development / Appreciating the good things / Inner strength
Social action
Social action is not for everyone / No gesture is too small
Ways to contribute
Supporting other victims / Changing our justice system
Guidelines for social action
Create an inclusive circle / Challenge the media messages / Contribute to the tipping point of a value you believe in / Seek out visionary leaders
You are a work in progress
Examples of growth and transformation
Crisis memoirs / Stories of social action / The fight against sexual crime
Differences you can make
Vignette eleven: turning pain into action
Endnotes

Back to Summary Table of Contents

Appendices

1: Criminal Code changes
2: Questions about drug treatment
3: Questions to ask a prospective therapist
4: Recommended self-help references
5: The major courtroom players
6: Support team checklist
7: Steps of the court process
8: Life stressors scale
9: A checklist for reporting
10: Factual inconsistencies and credibility
11: Definitions of sex according to university students
12: Checklist to help you get ready for court
13: The story behind privacy protections
14: Checklist for the preliminary hearing
15: Accommodations to help a child witness to testify
16: Checklist for caregivers of child witnesses
17: Checklist for going to trial
18: Bill C-2 Amendments to the Criminal Code - modifications to accommodate witnesses
19: Websites of provincial correctional services
20: Sentencing options for dangerous offenders (DO) and long-term offenders (LTO)
21: The victim’s role in sentencing
22: Checklist for preparing your Victim Impact Statement
23: Checklist to help prepare for the sentencing hearing
24: Topics for discussion when retaining a lawyer
25: JHS class action – Rumley v. HMTQ

Back to Summary Table of Contents


REVIEWS

This book is invaluable for lawyers as well as other professionals, victims as well as lay people. It is comprehensive as it looks at the issue of sexual assault from many perspectives, from the legal to the physical and psychological. It is easy to read and it strikes me as an incredibly useful, practical, and effective tool for many actors in the judicial system, as well as for victims. It is an exciting addition to the literature on the subject and I am sure it will be very well received by the legal community and the community in general. I do not think that there is another book on the subject that draws on the law as well as on psychology and empathy for victims while still being fair and balanced.

Honourable Claire L'Heureux-Dubé, Retired Justice, Supreme Court of Canada, from the Foreword

   

Published May 2007
Publisher Irwin Law (Canada)
Paperback/556pp
ISBN 9781552211144
Australian RRP $49.95
International Price $45.00
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Social Work
Self Help
Law - Criminal Law & Procedure
Law - Evidence
Law - Canadian Law


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