August 01, 2012

Using Undiagnosed Post-Traumatic Stress Disorder to Prove Your Case: A Child’s Story

Christina Rainville

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Children who have been sexually abused often have undiagnosed Post-traumatic Stress Disorder (PTSD). According to the National Center for PTSD, 90% of children who are sexually assaulted develop PTSD, which is a severe and disabling neurological response to trauma. 

Whether a child develops PTSD after a sexual assault depends on the circumstances; the more violent the assault, the more likely the child will develop PTSD.  Also, children who are sexually assaulted by their fathers are at greatest risk.

To reach a diagnosis of PTSD, the diagnostician assessing the child must find evidence of a trauma. Because most children delay disclosing sexual abuse (if they tell at all),  they suffer in secret and their PTSD goes undiagnosed.  Often, by the time a child discloses a sexual assault, the child has been exhibiting PTSD symptoms for years. These undiagnosed children are in our schools, our communities, and often our court systems.

Understanding PTSD in children is key to successfully prosecuting sex crimes. PTSD can be profoundly disabling for the child. It can also help prove your case.

A Child’s Undiagnosed PTSD

B. was 10 when her uncle raped her.  She was playing soccer with friends when she went inside his trailer to use the bathroom. The rape was especially violent; he pulled her into the bedroom, pulled off her shorts, threw her on the bed and then pinned her face down into a pillow by pressing on the back of her neck. While holding her neck with one hand, he put his other hand beneath her stomach to lift her up and he raped her vaginally from behind. He threatened that, if she were to tell, her loved ones would die. When it was over, she put on her shorts and rejoined the soccer game. She would later testify­—when she was 15—that she was in shock and did not know what else to do.

The night of the assault, after she asked her aunt for sanitary napkins, the women in the family celebrated her entering “womanhood.” Her mother thought it odd, however, when her period never returned.

While B. kept her secret, her family noticed changes in her behavior.  She started having nightmares—screaming nightmares—a few times a week. When her mother ran to her room to see what was wrong, B. would be shaking and crying. She would say she thought someone was watching her; someone was looking in the window.  She could not sleep.

She started having horrible headaches, and her mother thought they were migraines. B. stopped playing outside with the kids in the trailer park. She refused to go to her uncle’s house. She spent all her time alone in her room. She constantly checked the locks on the doors and windows to make sure they were locked. She did not want to go anywhere. She became violent at home, and there were issues at school. She could not focus, and she refused to sit next to boys—she said they smelled. The family was at a loss. Maybe it was hormones. Maybe it was normal teenage bad behavior. Maybe she was just moody.

A Crime Revealed

Six months later, B. learned that a cousin was going to visit her uncle. She worried that he would do the same thing to her, so she told her grandmother about the sexual assault. The grandmother called the police. Everyone in the family had the same immediate reaction: it explained a lot of things. It explained the period that came and never came again, and why she refused to go to the uncle’s house.

For those of us on the prosecution team, this was a typical delayed-disclosure child sexual assault case. There was no physical evidence: no clothing, no blood, no semen, and no DNA. An internal exam showed a tiny vaginal abnormality which might have been a healed scar or might have been an abnormal formation from natural causes. There were no eye-witnesses, and the only piece that might be corroborated at all was the mother and aunt’s memory of celebrating her menstruation. 

The trial would be nothing more than the prosecution has in most of these delayed disclosure cases: the word of a child against the word of an adult man who had never been charged with anything like this before. For the prosecution, it was a long shot.  But for B., it was a long shot that we had to take.

Bewildering Medical Records

The case went to trial when B. was 15. The prosecution team got a release for her medical records, hoping to find something showing she had her period once at 10 and then not again for years. The medical records showed exactly that: B. went to the doctor two weeks after the incident, and the medical records showed that her mother told the doctor that B. had started menstruating. Later medical records all listed her as “prepubescent,” which the medical staff explained meant she had not yet started menstruating. This was all good news for the prosecution: there was a doctor’s report that could corroborate a part of B.’s story.

But the medical records showed something bewildering. Two weeks after the assault, B. was rushed to the emergency room after she fell to the floor unconscious. No one knew why or what happened. She was sitting on the counter, and her mother had playfully grabbed the back of her neck. B. screamed out, collapsed, and fell to the floor.  She was unconscious for three minutes. The emergency room records reported that the doctors could not find anything wrong with her, and sent her home. The records also noted that her mother complained of B.’s “personality changes.”

Shortly after that, the same thing happened. She was wrestling with her siblings, and one of them grabbed the back of her neck. Again, in an instant, she was unconscious. The emergency room records again showed the doctors could not find anything wrong with her.

At another emergency room trip, B. complained that her hands were numb and had no feeling. The doctors could find nothing wrong.

Her pediatrician sent B. to a neurologist. The neurologist’s records showed that she had dizzy spells, headaches.  The doctor noted she “had a lot of problems in school” and she refused to sit next to boys. After many tests, the neurologist could find nothing wrong with her and sent her home. He concluded the problem was not physiological. In other words, it was all in her head.

We looked at these records with concern. Was this a crazy hysterical child who was making things up? How would a jury react to a child who had nothing physically wrong with her, but who was claiming temporary paralysis in her hands and unconsciousness at times for no apparent reason? If she was making that up, wouldn’t everyone assume she also made up the rape story?

Can a 10 year old fake being unconscious? Why did all this happen after the sex assault? Her medical records were all normal before that —an occasional bout of bronchitis, or the flu. What would be her motive for making this up? After all, while all this was going on, she had not yet told anyone about the assault.

Seeking Help from an Expert Psychologist

We sent the records to a prominent Vermont psychologist, Dr. William Cunningham, who had been treating young victims (and offenders) of sexual assault for 20 years. His reaction was immediate: the medical records were extraordinary evidence of undiagnosed PTSD.

According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, (“DSM IV-TR”) (the latest version of the mental health book with diagnostic criteria for every kind of mental illness), a diagnosis of PTSD has a complicated matrix.

First, the person must have been exposed to a traumatic event where the person experienced, witnessed, or was confronted with an event or events that involve actual or threatened death or serious injury, or a threat to the physical integrity of oneself or others, and the person’s response involved intense fear, helplessness, or horror (or, in children, disorganized or agitated behavior). This is the first obstacle for children who have been sexually assaulted; if they do not disclose what happened, no one knows they suffered a trauma, and they cannot be diagnosed with PTSD.

If there is evidence of a trauma, the diagnostic matrix for PTSD requires one of the following:

  1. Recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. In young children, “repetitive play may occur in which themes or aspects of the trauma are expressed.”
  2. Recurrent distressing dreams of the event. In children, there may be “frightening dreams without recognizable content.” B. had screaming nightmares, several times a week.
  3. Acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur upon awakening or when intoxicated). In children, trauma-specific reenactment may occur. B. kept saying she saw a face in the window; someone was watching her.
  4. Intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. B.’s becoming unconscious when her neck was touched was intense psychological distress at a physical touch that resembled an aspect of her traumatic event.
  5. Physiological reactivity upon exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. B. became unconscious each time someone touched her neck: she had a physiological reaction upon exposure to that triggering “cue.”

In sum, based on B.’s medical records, she met four of the five criteria, when only one was required.

The PTSD diagnosis next requires that, if the patient has one of the above symptoms, the patient must have at least three of the following:

  1. Efforts to avoid thoughts, feelings, or conversations associated with the trauma.
  2. Efforts to avoid activities, places, or people that arouse recollections of the trauma. B. never played soccer again; she never went to her uncle’s house again. She spent all of her time alone in her room, and she refused to sit next to boys at school.
  3. Inability to recall an important aspect of the trauma.
  4. Markedly diminished interest or participation in significant activities. B. never again played outside.
  5. Feeling of detachment or estrangement from others. B. avoided all contact with everyone, including her family—she kept to herself in her room.
  6. Restricted range of affect.
  7. Sense of foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span).

Again, just from her medical records, B. had three symptoms of the potential seven. When we met with B. —five years later—she provided two more: restricted range of affect, and no sense of future.  And she still spent all of her time alone in her room.

In addition to the above, the patient must have persistent symptoms of increasing arousal (not present before the trauma), with at least two of the following:

  1. Difficulty falling or staying asleep. B. had nightmares and trouble sleeping.
  2. Irritability or outbursts of anger. B.’s mother complained to the doctor about her “personality changes”: she became angry and violent at home, and had problems at school.
  3. Difficulty concentrating. B. could not concentrate at school.
  4. Hypervigilance. B. constantly checked the windows and doors to make sure they were locked.
  5. Exaggerated startle response (e.g., startling at noises that do not bother anyone else).

Again, B. had four of the five required symptoms, when only two were required.

Finally, the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. B. developed problems at school and at home; she spent all of her free time alone in her room.

According to the DSM IV-TR, children with PTSD may also “exhibit various physical symptoms, such as stomachaches and headaches.” B.’s medical records showed the onset of headaches just two weeks after the assault, and the headaches continued for years.

Using PTSD Evidence at Trial

In the trial of B.’s case, Dr. Cunningham explained the diagnostic matrix for PTSD and then went through B.’s medical records for the jury. He pointed out all of the evidence from the time she was 10, starting just two weeks after the sexual assault.

While a formal diagnosis of PTSD requires a full assessment, with in-person evaluations by a professional, any juror looking at B.’s medical records could see the obvious: this child had PTSD. The jury convicted, even though there was no physical evidence, no blood, no semen, and no eye-witnesses. We had the word of a child, and her testimony was proven with the medical records that showed the onset of PTSD exactly when the professionals would expect to find it.

After B.’s case, we started looking for evidence of PTSD in every case; we find it in most. The children who delay disclosure often have medical records showing they were put on Ritalin for a newly-diagnosed case of ADD; often, they are prescribed sleep medication for nightmares at the same time. We have seen children as young as four years old with this dual diagnosis made shortly after the sexual assault. Such medical records are powerful evidence that the child suffered a trauma. While ADD is common, juries understand that typical children with healthy childhoods do not suddenly develop ADD and sleep disorders.

We often can buttress PTSD evidence with school records. These children frequently have Individual Education Plans (IEPs) or 504 special education plans for an “emotional disturbance” disability that started shortly after the first sexual assault. Often, these children are put on anti-anxiety medication to help their previously-unexplained “emotional disturbance,” and those medical records also help prove the case. Family members, teachers, and the children themselves can testify about changes in personality, such as violent or angry outbursts, hypervigilance, self-harming behaviors (cutting), and avoiding activities, friends, males, etc.

Once a prosecutor understands PTSD, the next step is to teach juries how PTSD can be disabling for a child. A child may have angry outbursts on the stand (one of our children repeatedly mumbled, “F... you,” to the defense lawyer). The jury understood, and convicted.

A child may testify with a complete lack of emotion or affect —as B. did. Juries expect tears when a person testifies about a trauma, but B.’s jury understood that her lack of affect was evidence.

Another child was initially unable to point out the defendant in the courtroom—because she refused to look at him. After prompting from the judge, she finally pointed a finger in the defendant’s general direction —again saying she could not look at him. After further prompting from the judge, she started shaking all over, looked at the defendant for a split second, pointed at him, then quickly looked away. The jury convicted and the child’s in-court identification was upheld by the Vermont Supreme Court, State v. Penn, 2011 WL 4979380 (VT) (unpublished decision).

Similarly, a jury that understands PTSD will understand why, in some cases, a child cannot tolerate seeing the defendant, and must instead testify outside the courtroom by live-video feed.

Understanding PTSD makes for stronger cases, and stronger cases provide better results that ultimately help the child recover. It’s a win-win for the prosecutor and the child.

Christina Rainville, JD, is the Chief Deputy State’s Attorney for Bennington County, Vermont, where she heads the Special Investigations Unit. She is also a former recipient of the ABA’s Pro Bono Publico Award.

Stay tuned: This article is one in a series addressing advocacy for abused children with disabilities. The next article will address how to help a child overcome PTSD and get ready for trial.