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.
Few things are more upsetting to a prosecution team than having to dismiss a strong sexual assault case because the child-victim’s Post-traumatic Stress Disorder (“PTSD”) prevents the child from testifying.
According to the National Center on PTSD, 90% of all children who are sexually assaulted will develop PTSD. As a result, every child who discloses a sexual assault immediately requires the highest level of care to minimize the damage. Learning to support and accommodate children with PTSD has become an essential part of the court process.
PTSD can be terribly disabling for a child. According to the most recent Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), children with PTSD frequently develop sleep disorders and suffer sleep deprivation; unexpected angry and volatile outbursts; inability to focus; and inability to function in school or at home. It may be impossible for a child with PTSD to testify in court—especially if testifying about the subject that caused the PTSD or testifying in front of the abuser.
When preparing children for trial, it is common to have a seemingly-strong child suddenly fall apart in cataclysmic ways. Three times, I have witnessed children become catatonic and unresponsive after simply being asked: “What happened next?” One child remained catatonic for so long that she was taken to the emergency room. Children with PTSD may go from chatty to mute; from happy to despondent; from calm to volatile; from at-ease to running full speed off the witness stand— all while testifying. These are the children we thought were strong enough to handle court.
Every year, a number of our children who have been sexually assaulted end up in long-term residential therapeutic placements. Their criminal cases must be dismissed with only a shred of hope that one day we might be able to re-bring the charges if the child recovers. Some children with PTSD have been in residential placement for years; a few may spend the rest of their lives there.
This article explores how to help children heal from PTSD and successfully prosecute these cases. The work begins the day the case comes in and continues behind the scenes until the trial (and beyond).
The Bennington Approach
In Bennington, Vermont, when a report is made about suspected child abuse, the child is brought to the Bennington County Child Advocacy Center (“CAC”) for a forensic interview. The behind-the-scenes support begins as the child is interviewed. A child advocate arranges for the child to see a therapist, and obtains releases from the family to permit communication between the family, the CAC, the child’s therapist, medical doctors, and schools. From that point on, a unified team works together to help the child recover.
Working with the Child’s Therapist
When a child develops PTSD, that diagnosis becomes key evidence in the case. We routinely have therapists testify about a child’s PTSD diagnosis and juries find PTSD to be compelling evidence that the assault happened. Healing the child with PTSD is a priority because the case will go nowhere if the child is not strong enough to testify. The prosecutor must work closely with the child’s therapist to learn about the child’s diagnosis and help the child recover.
In Vermont, every child who discloses sexual abuse is immediately entitled to psychological therapy. Costs not covered by private insurance or by Medicaid are paid by the Vermont crime victim’s services fund. The CAC coordinates extensive care.
Every child is assigned a therapist with specialized training in treating trauma and PTSD. If transportation is an issue, the CAC brings the child to therapy appointments. According to Lori Vadakin, a psychotherapist who served as the Executive Director of the Bennington County CAC and has worked with child sexual assault victims for 20 years, the most important step in supporting these children is providing therapy.
The therapist’s ultimate job is to alleviate the PTSD symptoms so the child can heal and recover. Getting there is a long process and the prosecutor needs to have general knowledge of how the child is progressing throughout.
Helping Children Understand What Happened
In most cases, a therapist has to work with the child, as Vadakin says, to “re-write the distorted history.” Vadakin explains that children who have been groomed to be victimized, as most of them are, adopt as true all the lies the abuser told them. There are usually many lies that need to be addressed and “re-written” for the child before the child can begin to heal.
Children believe what adults tell them and expect adults to tell the truth. A child who has been sexually abused often holds firmly-held beliefs that are nothing more than manipulative lies told by a predator. Therapists learn what the perpetrator told the child, then help the child understand that she/he was the victim of a complex scheme of manipulation by a sophisticated adult.
For example, abusers frequently threaten their victims, and the children believe the threats. We have seen children who are convinced that if they do not do what the abuser says, their dog will die, relatives will be harmed, they will become homeless, or their mother will go to prison leaving them only with the abuser. Sometimes abusers even convince the children that bad things have already happened because of the child’s conduct.
The therapist addresses these lies and helps the children understand what is true and what is not. Their dog is safe; their relatives are safe; the child is not going to be homeless; and there is no reason to believe mom will go to jail. The threats —standing alone—can cause tremendous anxiety to a child, so the therapist learns what the perpetrator said and reassures the child that the threats will not come to pass.
Threats are also evidence. In a delayed disclosure case, threats are important evidence of why the child delayed disclosing. A child may share with a therapist threats that the child did not disclose to the police. A prosecutor should ask the therapist about threats that the child may be disclosing in therapy.
In addition, a child may have been told a litany of lies that the child now adopts as true. We commonly see children who have been told: “All children do this with their father”; “You really enjoyed it”; “You came on to me”; and “This was really your fault.” Again, a therapist needs to explore what the perpetrator told the child, and whether the child is maintaining false beliefs. Every lie needs to be addressed and processed with the child so the child can move forward in therapy.
Again, lies are evidence. A seven-year-old child who testifies that a defendant said it was her fault for coming on to him can be a powerful witness. Not only is that lie offensive, it adds to the child’s credibility because no seven year old would think to say that unless it was true.
Also, the prosecutor must know what the child is feeling and adjust the approach in meetings. A child who is feeling responsible for “coming on” to the defendant needs reassurance from the prosecutor that that was not true. Or, a child feeling shame after learning that not every father does that to his daughter needs to hear that she should not feel ashamed.
Teaching the Children about PTSD
Normalizing the Behavior
According to Vadakin, a second key process is to “normalize” the child’s behavior and PTSD symptoms. The child needs to feel “normal” and know that everything that she or he did and is experiencing is okay.
Many children are frightened by the effects of PTSD. Vadakin frequently has children who are afraid that they are going crazy. She says it is critical to reassure children that this is a normal neurological response that happens when bad things happen to good children.
Understanding Child Triggers
Triggers are stimuli that remind children of the trauma so profoundly that they feel as though the trauma is happening again at that moment. In one case, a girl who was violently raped as she was pinned by the back of her neck fainted every time someone touched her neck. Children with
PTSD can have similar reactions to smells, sounds, places, and just about anything. For some children, triggers will be broad (for example, men); for other children it may be something unpredictable and unexpected (a room painted the same color as the room where the assault took place). For many children who are sexually assaulted by an intoxicated perpetrator, the sight of a beer can, beer commercial, or even an anti-alcohol poster in a school hall may trigger a response.
According to Vadakin, when a child’s trauma is triggered, the child suffers one of three classic trauma reactions: fight, flee, or freeze. Children do not understand why they now hit their little brother every time a beer commercial comes on; why they must run out of class in the middle of a discussion on alcohol; or why they zone out to the point of being nonresponsive in health class. The therapist will explain PTSD, triggers and how they affect the brain; and how what they are feeling and doing is a common response to trauma.
It is critical for the prosecutor to understand a child’s triggers; how to avoid them; how the child will react if triggered; and how to calm the child when the child gets triggered. This is important for all meetings with the child, and for court testimony.
Planning for Triggers
Once a child understands the concept of a “trigger,” the therapist will work with the child to identify potential triggers, and will help the child develop a plan to handle triggers. Ultimately, the goal is for the child to face the triggers without a trauma reaction.
Creating a toolbox. For young children, Vadakin prepares a “toolbox.” It is a shoebox filled with things to calm the child: photographs of loved ones or a beloved pet; tangible things to hold and squeeze; maybe a stuffed animal or some candy. A toolbox is kept at home and in the classroom, always there if needed. When the child starts to feel triggered, the child goes to the toolbox for help.
Finding a support person. For older children, Vadakin teaches the children to seek out a support person at school or at home and talk about what the child is feeling. As detailed below, schools play a huge role in every child’s recovery from PTSD.
Removing blame. Therapists also help the children understand that they are blameless. Frequently, child victims feel guilty and blame themselves. Many get into this situation by accepting gifts, money, alcohol or drugs, or doing something their parents told them not to. Therapists help them understand that they were not at fault, and that it would be “normal” for a child to sometimes not obey a parent or to accept a gift from someone who was very good at manipulating children.
For the prosecutor, a child’s self-blame can also be powerful evidence at trial. A child’s heartfelt remorse over taking money or alcohol can be convincing evidence of the child’s overall credibility.
Involving the Victim’s Family
Therapists also work closely with victims’ families to make sure family members understand what the child is going through, and what the family needs to do to support the child. This can be challenging if the abuser is a family member and family members do not support the child. In severe cases where the custodial parent not only does not support the child but actively works against the child’s best interest, the therapist may make reports to the Department of Children and Families recommending that the child be placed in foster care.
The prosecutor needs to know about the family situation to provide appropriate support. For example, it could be very upsetting to a child for the prosecutor to suggest that the mother is a good person to support the child if the child was just removed from the home due to mother’s misconduct. A child expects the prosecutor to know what is going on in the child’s life.
Seeking a Medical Consult
A therapist may suggest a consultation with the family pediatrician for sleep medications, anti-anxiety medications, or medication to help focus. The prosecutor needs to keep track of this; the fact that a child is being medicated for PTSD is powerful evidence that the assault took place.
Assigning a School Counselor
Finally, the therapist works with the school to make sure a counselor is assigned to help the student. The therapist keeps the counselor advised of issues that the child is facing in treatment.
Working with the Child’s School
While the therapist works on helping a child stabilize, the victim’s school works with the therapist and the child’s family to hold the child together through the school day. Sometimes this is a challenge. The goal is to keep the student in school and prevent the child from spiraling out of control and into a residential placement. This is essential for the child to be able to testify in court.
Involving School Staff on MDTs
Almost all Bennington schools have a representative on the Multi-Disciplinary Team (“MDT”), the team of professionals that supports the children through the trial process. The team includes prosecutors, police, and victim’s advocates, representatives from the Department of Children and Families, therapists, school counselors, probation officers, and other support people for the children.
Kristyn Harrington is the representative on the MDT for a 1,000-student high school in Bennington County, where she works as a social worker. According to Harrington, it is critical for the school to be involved in the MDT meetings. That way, she learns about cases as soon as they come in, and can begin immediately putting supports in place. Families, she has found, may not contact the school for many reasons. They are often overwhelmed and do not know where to turn for help, and telling something so private is difficult. Harrington tries to connect with the families right away.
Once Harrington moves into action, the pieces are pulled together quickly. The child’s teachers need to be a part of that plan. For Harrington, educating faculty and staff about PTSD is an ongoing process. As Harrington explains, everyone needs to understand that, “this is not somebody being bad, this is somebody who needs help.”
The school starts by asking the student what the school can do to help. Harrington arranges for each child to start working with a school-based clinician, and discusses other faculty who might serve as additional support people for the student.
Preparing for School Triggers
According to Harrington, high school is an extremely challenging place for a student with PTSD trying to recover from a sexual assault. There are triggers everywhere. There are sexualized behaviors in the hallway (students kissing or holding hands); sexualized discussions at lunch tables; educational sex and alcohol discussions in the classroom; a constant hum of interest as students develop their own sexuality; and even unexpected triggers in the books used in English class. Crowded halls are another common trigger, as they can be loud, chaotic and overstimulating. For a student with PTSD who is battling triggers, high school can be a total nightmare.
Harrington has found that the hypervigilance that comes with PTSD also makes school a challenge. Most students are sensitive to what others might say or think about them, but according to Harrington, the kids with PTSD can take this to an extreme. Students with PTSD walk the halls thinking everyone knows their secret and is talking about them. Their misperceptions about what people are saying about them can become overwhelming.
A significant problem, too, is that children with PTSD just do not feel safe. Often, they need to connect with their support person or counselor during the day to stabilize before they try to go out again and reengage.
Again, when triggered, some students may lash out, some may run, some may curl into a ball and freeze.
Making School Accommodations
Some students with PTSD develop significant learning disabilities, to the point where they develop a need for a special education plan, such as an Individual Education Plan (IEP) (if the child is performing below grade level) or a 504 plan (if the child is performing at grade level, but requires supports and accommodations to maintain that success). Even students participating in the regular education system will need support services to successfully continue in school.
Accommodations are adjusted for each student’s needs, but many are universally required:
- early or late dismissal to avoid the crowded bustling in the hallways;
- private tutoring or other options to obtain required health-class credit;
- pass to leave any class to see a counselor;
- reduced course load if a student cannot handle a classroom setting (or full course load where the student spends some time out of the classroom with supportive tutors but still attends class sometimes).
The goal is to help the students reduce what they have to negotiate socially, but keep the students on track with learning.
For the prosecutor, all of this becomes evidence. The child can testify about how the sexual assault has changed him/her; what triggers the PTSD; how the student reacts when triggered; and what accommodations are in place at school. Someone at the school who knew the student before and after the assault can testify about behavior changes and how the accommodations became necessary. An expert or the child’s therapist can explain PTSD and tie it all together. And the jury will understand that something traumatic happened to the child.
The Prosecution’s Role
Tracking the Child’s Progress
The prosecution needs to work hand-in-hand with the family, the therapist and the school counselors to track generally how the child is doing. Some children do best if they see us every few months while the case is pending and get their questions answered about the process. Other children do better if they think about the trial process as little as possible and never meet with us until absolutely necessary. We ask the parents or caregivers and the therapists how frequently they recommend we meet with the child and what they think we can do to help the child get through the process.
Supporting the Child
When we meet with a child we reaffirm the same messages the therapist is working on:
- confirm that the child is safe and the perpetrator’s threats will not happen;
- reaffirm the child was not to blame for what happened;
- stress that any child would have done the same thing and that all the problems the child is experiencing (lack of sleep, inability to focus, etc.) will go away soon;
- talk about other children of similar age who have been through the court process and
recovered stronger than they were before the assaults;
- discuss possible outcomes from a trial and seek the child’s input on desired results.
Deciding to Plead or Dismiss a Case
If the child is not doing well—perhaps the child is in residential treatment, or heading that way—it may be necessary to plead the case to reduce the stress that the child is feeling from the court process.
If the defendant will not plead to agreeable terms, the difficult decision must be made whether to dismiss the case. We always try, except with the most fragile children, to include them in those decisions. Although we could always force a case to trial, if the child’s therapist tells us that the risk of further harm to the child is too great, we dismiss the case. In Vermont, we have six years from the date of the first report to re-bring the case if the child recovers.
Preparing Child for Trial
If we decide to take a case to trial, the trial preparations for a child with PTSD are handled with great care. We first meet with parents and caregivers to find out how the child is doing, and if there is anything we can do to help the child when we meet to prepare. We follow up with the therapists and school counselors to make sure that we know the child’s triggers and how to avoid them (if possible).
We find out from the school if any accommodations are given that we should incorporate in our meetings or the trial process. We find out what calms the child (the “toolbox”) and how we might use those tools if things start to become difficult. We take the child to the empty courtroom, have him/her sit at the witness stand, and explain who will be in the room and what it will feel like. If the child cannot face seeing the defendant, we seek permission from the court for the child to testify by live video.
We also tell the trial judge and defendant’s counsel about the child’s PTSD and how it might play out in the courtroom. We usually know which children are likely to shut down (freeze), which children are likely to act out (fight), and which children pose a risk of running from the courtroom (flee). We make sure the judge and defense counsel know in advance.
We work with the children to tell them to ask for a break if their trauma response is getting triggered to the point where they cannot control it. Most of the time, talking with the children in advance about the triggers they will face in the courtroom prepares them for the worst.
Finally, we arrange for the child’s support people to be in the courtroom when the child is testifying: a supportive parent or foster-parent, the child’s advocate from the CAC, and often the therapist and school counselor.
And then, when the children testify, we are regularly surprised at how strong these very fragile child-witnesses can be. Although we never know what will happen when they take the stand, most succeed in testifying with composure and grace.
Just recently, we had a trial with a teenage boy in a case involving an attempted sexual assault. The boy did not want to meet with us in the year that the case was pending. We met with him the day before trial and he refused to discuss anything. He said he would talk about it “one time only” and that would be at the trial. When he took the stand, we expected that he would not be able to testify at all, and that the case might end in a mistrial or acquittal. Indeed, I warned the trial court and defense counsel of that possibility. Instead, the boy walked with confidence to the stand, sat up straight when he began to testify, looked at the defendant, never quavered, and gave compelling testimony on both his direct and cross examination. The jury convicted.
We find that when we support children with PTSD with a multi-disciplinary approach, they do better at trial, the juries convict, and the children become stronger as a result. Sometimes, the best cure to PTSD is when the jury says “guilty,” and the child can be proud that she/he stood up to the abuser and was believed.
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 prosecute cases involving children with intellectual disabilities.