Evolving jurisprudence increasingly tries to take on board more and more areas of discrimination and disability in the quest for justice. The sensitizations to caste, gender, class and sexual orientation are illustrations of the opening up of the legal system to deep-rooted structural inequalities. There is a growing recognition that treating persons unequally or differently situated as equals is not equality. The arena of the legal system meeting trauma survivor is one which cries for fresh insights and reform. Often, it is the victim-survivor of the trauma who is worse off after an interaction with the justice system. The harsh dynamics of repeated depositions and cross examinations end up showing the victim-survivor as inconsistent, contradictory and lacking credibility.
In a number of cases, rather than taking on board the vulnerabilities and pressures working on the victim/survivor, the system may end up further victimizing the victim/survivor. In the worst case scenario the trauma survivor who has suffered violence or been witness to brutal killing and rape is shown to have lied on oath leading to prosecution and imprisonment for perjury. For example, the Best Bakery case pertains tothe killing of fourteen persons, eleven Muslims including family members of the Sheikh family which ran the bakery and three Hindu employees on March 1, 2002 during the anti-Muslim pogrom in Gujarat. Zaheera Sheikh, a 19- year old woman whose family members were killed filed the criminal complaint and was a crucial witness in the case. A series of flip-flops by Zaheera Sheikh followed and in 2006 the Supreme Court of India sentenced her to one year’s imprisonment and Rs. 50,000 fine for committing perjury. Similarly, testimonies of widows whose husbands were killed in the Sikh killings in 1984, after the assassination of Indira Gandhi, suffered from long delays and inconsistencies, leading to closure reports against prominent Congress leaders who went scot-free.
Law in practice
In theory, a trauma survivor is a victim and deserving of the sympathy and consideration of the law. In practice, the inability of the Indian legal system to protect the trauma survivor and/or witness from the pressures brought to bear on the witnesses by often the powerful and influential accused perpetrators is one aspect of the matter. The second aspect of the matter is the lack of sensitization of legal system to the impact of trauma on the individual. There is not much doubt that the ordeal of the legal process ends up adding fifty percent and at times seventy-five percent more to the trauma initially suffered as a result of the incident of violence.
Justice Mittal (2009) in the Delhi High Court judgment acquitting(Why acquit such a criminal- I would not use this example or leave the rape of a child acquittal out)the accused of rape of a child observes: “Children who are victims of sexual assaults and rape carry a huge burden of unwarranted guilt and violations for which they are not responsible. The humiliation, shame and embarrassment which cloud their emotions because of the worst kind of violation they have suffered which get aggravated when required to recount the same to strangers in formal surroundings. The trauma of a child victim is only multiplied as he or she is required to repeatedly recapitulate her ordeal to the investigating agencies, prosecutors and then in court” (p.2744).
The Report of the Committee to recommend amendments to the criminal law formed after a brutal gang rape in December 2012 of a young woman in Delhi, India[1]headed by ex-Chief Justice of India Verma, J.S. observed: “We agree with the following observations of the84th Report of the Law Commission:-
“1.2 It is often stated that a woman who is rapedundergoes two crisis, the rape and the subsequent trial.While the first seriously moves her dignity, curbs herindividual, disturbs her sense of security and may oftenrun her physically, the second is no less potent ofmixture, in as much as it not only forces her to relivethrough the traumatic experience, but also does so in thegrudge of publicity in a totally alien atmosphere, withthe whole apparatus and paraphernalia of the criminaljustice system focused upon her” (p. 96).
Psychoanalysis and Trauma Testimony
The positioning of trauma at the core of psychoanalysis equips it to intervene in the vital area of law and individual as well as collective trauma testimony. Freud (1919) observes “Apart from this, the war neuroses are only traumatic neuroses, which as we know, occur in peace time too after frightening experiences or severe accidents, without any reference to a conflict in the ego” (p. 209). Theinsights evolved from the history of engagement with war neurosis during and post World War I can contribute to a better understanding in law of the impact of trauma on the psyche. Freud (1919) observes “Some of the factors which psycho-analysis had recognized and described long before as being at work in peace time neuroses- the psychogenic origins of the symptoms, the importance of unconscious instinctual impulses, the part played in dealing with mental conflicts by the primary gain from being ill (‘the flight into illness’) – were observed to be present equally in the war neurosis and were accepted almost universally” (p.208). (This is enough on early Psychoanalytic theory I would Google an older worker Crystal and an up to date one Van Der Kolk for a few more sentences}
Therapeutic success with war neurosis during and post World War I places psychoanalysis in a unique position to help the trauma survivor and to sensitize the legal system to the impact of trauma: the psychological damage; the fragmentation;the conflation of different incidents, dates, times and occurrences; the existence of vivid memories in and of themselves along with lack of clarity as to how they are inter-related and the sequence of events characteristic of Post Traumatic Stress Disorder. Freud (1955 [1920]) writes “In 1918 Dr. Ernst Simmel, head of a hospital for war neuroses at Posen, published a pamphlet in which he reported the extraordinary favourable results achieved in severe cases of war neurosis by the psychotherapeutic method introduced by me. As a result of this publication, the next Psychoanalytical Congress, held in Budapest in September 1918, was attended by official delegates of the German, Austrian and Hungarian Army Command, who promised that Centres should be set up for the purely psychological treatment of war neuroses” (p. 215).(leave out t he whole para above)
The court is the domain of the judiciary and the judge is the crucial actor who determines the texture of the proceedings and the atmosphere in the room. The behaviour, the manner and tone of address of the judge are crucial factors which determine the level of comfort or discomfort felt by an individual before the court in any capacity witness, complainant or survivor/victim.
Emotional Vulnerabilities
Generally, survivors of individual or collective trauma may suffer vulnerabilities generated due to emotions like fear, hate, anger, guilt, self-disgust, shame, helplessness, persecution, loneliness and emptiness as well as by positive feelings of love and affection for the perpetrator due to familial, neighbourly or other ties. Vulnerabilities created due to emotions constitute a separate category and special component needs to be evolved for the training of judges. Individuals subjected to or witness to the trauma of incidents of violence, sexual abuse, rape, killing; child abuse could be categorized as ‘vulnerable witnesses’. The best cues for interventions which would re-assure and create a zone of comfort for such vulnerable witnesses would come if the judge could get in touch with such feelings in his/her own self. If the individual acting as the judge could connect and experience the feelings overwhelming and swamping the trauma survivor, even for a minute, it would help evolve interventions conducive to a more congenial atmosphere for the witness.
Judges : Group and Individual Work
Generally, negative feelings distress us and often get suppressed or split off. The pressure on individuals acting as judges to deny their own feelings in the nature of vulnerability, sadness and helplessness would be even more than ordinary mortals. The group workshops would through the impact of projected words and images and the use of ‘free association’ attempt to evoke in the participants the range of feelings which may be swirling in the psyche of the vulnerable witness.(I believe you need to alter the impersonal language and speak on what you have done with judges and what you have observed with examples when possible)
The personal sessions with judges would explore and help the individual to glimpse and get in touch with their feelings like fear, shame, self-disgust, vulnerability which are often suppressed in the unconscious and adversely impact the quest for justice. For example, the lack of processing of and acceptance of feelings of shame on the part of the judge may often lead to the complicit acceptance of the use of general phrases like ‘galatkaamkiya’, trans. ‘did bad things’ in the context of child sexual abuse. The use of vague phrases works to the benefit of the accused as it is not precise enough to fulfil the ingredients of penal offences. Mittal (2009) in her judgment points out “In any traditional and conservative Indian family, any act from mere touch to the ultimate intimacy of sexual intercourse between person not married to each other would in common parlance, would be covered within the gamut of acts which could be labelled as “galatkaam” or “gandiharkatein” (p. 2732). Getting in touch with and acceptance of one’s own feelings of shame on the part of the judge may assist in a more conducive environment for the vulnerable witness to more precisely depose as to the events. Justice Mittal (ibid) notes: “In the instant case, the evidence recorded by the learned Metropolitan Magistrate under section 164 of the CrPC and by the court appears to suggest embarrassment of the court to put questions of any kind to the prosecutrix and witness so as to elucidate the complete truth from her resulting in, not contradictory but incoherent testimony of the child victim who has concealed the essential ingredients of the offence” (p. 2744).
Defences and Intra-psychic processes
The judicial role is the exercise of the intellectual faculties of logic and reason. The arena of unconscious defences to cope with anxieties, painful areas, feelings and unacceptable impulses as distinct from conscious coping strategies is the terrain to be traversed in judicial training in trauma testimony. An intellectual comprehension of unconscious defence mechanisms like denial, regression, acting out, dissociation, repression, displacement, intellectualization and sublimation would not be difficult for judges( I am not sure this is true It would not be here, but maybe after your training ?). Similarly, grasping the intra-psychic processes of splitting, projection, projective identification and idealization-persecution at the level of the intellect is the easy part( I question that.) However, an intellectual knowing often works as a block or defence against the experiential. As Young succinctly puts it: “One of the illuminating distinctions that Kleinian psychoanalysis has given us is that between knowing and knowing about. In psychoanalysis, knowing about something often operates as a defence against knowing it in a deeper, emotional sense. I well recall my first, greatly-valued supervisor, Bob Hinshelwood, saying once in an ironic way that if you don’t understand what the patient is on about in the session, you make a clever interpretation, and if you aren’t in touch with the patient at all, you can always write a paper. It is fairly easy to know about psychotic anxieties and projective mechanisms, but knowing them in an inward and sustained way is very difficult, indeed” (p. 1).(Leave out this whole piece beginning with As Young succinctly……….
The notion that the defences and intra-psychic processes are ‘normal’ and that all of us use them to varying degrees is the first premise to be established. This paves the way for the attempt by participants to reach occasions where they might have used some of the defences as coping mechanisms in their lives. The ability to see the defences at play in oneself is at the heart of the workshop and would enable the judges to see them at play in the testimonies of trauma survivors(and themselves)and equip them to constructively intervene in the proceedings. The interventions could be in the nature of listening with as Freud puts it ‘evenly suspended attention’; creating a zone of comfort for the trauma survivor; help in the containment of emotions; the naming of feelings, often contradictory; the acknowledgment of split parts and the taking back of projections.
References
Freud S. 1919. Introduction to psycho-analysis and the war neuroses.Standard Edition, XVII.
Freud S. (1955[1920]).Memorandum on the electrical treatment of war neuroses.Standard Edition, XVII.
Mittal, G. 2009.Virender versus State of NCT of Delhi.2009 (4) Journal of Criminal Cases 2721. New Delhi: Arora Book Agency.
Shukla R. 2014. The Rage of Angels: Anger, Fury,Brutal Rape, Protests, Police Action. International Journal of Applied Psychoanalytical Studies, 11(2): 184–187 (2014).
Verma, J.S., Seth L. and Subramanium, G. (2013).Report of the Committee on Amendments to Criminal Law. Retrieved 22 September, 2015 from http://www.thehindu.com/multimedia/archive/01340/Justice_Verma_Comm_1340438a.pdf
Young Robert M. Chapter 5 Primitive Space: Psychotic Anxieties, Mental Space. Retrieved 21 September, 2015 from http://human-nature.com/mental/chap5.html
[1] For an account of the incident from a psychoanalytical perspective, see Shukla (2014).
