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Complex Trauma in Criminal Mitigation Defense: How Abuse and Neglect Can Cause Abnormal Development

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Complex Trauma in Criminal Mitigation Defense: How Abuse and Neglect Can Cause Abnormal Development

Many criminal defendants have suffered complex trauma that must be explicated through presentence reports by mitigation experts. This seminar will focus on major approaches to conceptualize the harm that many of our clients have suffered in childhood through the ACE criteria and a developmental perspective focusing on the effects of abuse and neglect. The seminar will also consider how these matters are assessed in a psychosocial evaluation and major psychopathology that results from complex trauma.

Presenters

Mark Silver
Attorney & Clinical Social Worker
Criminal & Immigration Mitigation Expert

Transcript

Mark Silver:   Hello and welcome to today's CLE program. My name is Mark Silver and I am a criminal mitigation expert working in New York City. I've done about 2,000 cases for immigration and criminal lawyers over the years, including several personal injury cases for civil litigation matters. Today I'm presenting a CLE on, I think, one of the single most important topics for criminal defense lawyers, and that is mitigation of clients who have suffered complex trauma.

  We often consider issues in a person's past and obviously want to consider anything and everything when we're mitigating a case to help explain how a client got to be in so much trouble. By far, the most serious issue is complex trauma, which is what we're talking about today. It concerns individuals who have suffered systemic abuse and neglect in their childhoods, and this has prohibited them from developing in a normal manner.

  In fact, they necessarily develop in a pathological manner. Why? Because unbelievable levels of stress throughout their childhood and teenage years, because of the complex trauma, has caused them severe neurological developmental and psychiatric, psychological, and emotional problems that are pervasive to their decision-making, to their everyday lives, their judgment. It very much informs how they got to be in so much trouble.

  There is a chapter in my book on complex trauma entitled Handbook of Mitigation in Criminal and Immigration Forensics. The book was just republished a few months ago in its seventh edition. It has, as I said, a specific chapter on complex trauma. However, please, anybody who's interested in looking at a redacted criminal mitigation sample, do not hesitate to call me or send an email. And if you send an email, I will send you back a redacted sample.

  Please send all your information in the email, your full name, your address, your telephone number, so that I know you're a real attorney. Unfortunately, I get a lot of spam and I really want to make sure I'm sending something to a real email address. I promise you, I'm not going to send you any junk mail. I have no interest in doing that. But I have to make sure that it's a real email address. I will send you back a redacted copy, which basically means that all major identifying information within the criminal mitigation report will have been removed.

  This is an extremely huge topic, and I've tried to compact it into a single CLE one-hour program. We're going to be looking today at complex trauma and mitigation. Then we're going to be looking at psychosocial evaluations. The next part of the program is looking at ACEs, which is the adverse childhood experience evaluation. Next we're going to look at developmental perspectives on trauma due to abuse and neglect. Finally, we're going to consider psychiatric consequences of complex trauma.

  Let's get right into it. First and foremost, it's extremely important to understand that many of the clients we see have suffered trauma in their childhoods. They've suffered abuse or neglect and so on, and sometimes they've even suffered that in their early adulthood. That is not what we're talking about today. We're talking about complex trauma. Complex trauma is repeated episodes of abuse and neglect, repeated trauma causing chronic stressors.

  These are often invasive. They're very personal, and they most often occur by immediate caretakers, and particularly parents. The emotional, the neurological development of the child is necessarily damaged and their ability to self-regulate their emotions and their ability to develop healthy interpersonal connections is necessarily damaged. And it could be damaged for life. All of this necessarily impacts how the individual sees himself and it necessarily impacts how the individual interacts with others, and even with his or her community in general.

  In short, the individual, because of the complex trauma, because of the abuses and neglects, has suffered very high levels of stress, not because of a single incident, this is absolutely crucial to understand, but has suffered very high levels of stress because of ongoing and repeated incidents of physical, emotional, sexual, verbal, psychological, and other forms of abuse.

  Now, normally, clearly, a caregiver's bond with a child is supposed to provide stability, and security, certainty, predictability, safety, and so on. And because the caregivers are abusive, the child is unable to enjoy that in childhood. And because the child is unable to enjoy that, there is necessarily going to be extremely systemic harm that that child suffers.

  What are the red flags for complex trauma cases? Obviously, death penalty cases where people have committed extremely serious crimes. And, of course, the Supreme Court has ruled in Wiegand's V Smith that mitigation is mandated in capital cases. Any client who presents to you with complex arrests, multiple arrests for multiple problems over the years, complex trauma should be considered as a possibility in their background.

  Next, don't assume the client doesn't have complex trauma. I've seen a number of white collar cases. I do white collar criminal mitigation where the person has gone to college and they have graduate programs and they have a professional career under their belt, and they may be quite successful in other areas of their life, including financial stability. It doesn't mean that they haven't suffered complex trauma in their backgrounds and should always be asked about.

  Clients who've come obviously from deprived, dysfunctional, or chaotic homes or communities, those are red flags for complex trauma. Anybody that's suffered systemic abuses or neglect. Anybody who has encountered abuse with partners or spouses, believe it or not, are red flags for those individuals having complex trauma in their childhoods. Individuals who engage in self-destructive behaviors, and lawyers are very much aware of this, clients who are constantly jeopardizing their own legal case and second guessing their lawyers and making unnecessary problems in their legal case.

  These are clients that go from criminal lawyer, to criminal lawyer, to criminal lawyer. They're never satisfied. These are red flags that the individual has suffered complex trauma in their childhoods. Clearly, anybody who has suffered borderline personality disorder, I have a completely separate CLE on it because of its complexity. But anybody who has borderline personality disorder, that person is a red flag for having suffered complex trauma in their childhoods.

  In fact, a third of all people diagnosed with a borderline disorder in fact do have sexual abuse and other forms of abuse in their early childhoods. Anybody who's accused or arrested for sex crimes, child pornography related issues, should also be considered for complex trauma. Clients who present in a very disorganized manner, behaviorally disorganized, but also emotionally, but also, and this is very important, cognitively disorganized, meaning they find it very difficult to organize their thoughts and to process information in a normal way.

  This leads to the last point, people who present in a way that is ADHD-ish, meaning that they're very hypersensitive, they're they're hyperactive. They present in a way that you would imagine someone who is a child has ADHD. They may have had complex trauma. Why? Because complex trauma, due to the very, very high levels of stress, one of the things it does is it throws off our normal neurological development, our ability to process information, and to understand information, and to understand the valence of right and wrong and good and bad and so on.

  It leads to cognitive issues, as we'll see later on. I don't want to go over this much, but I do want to mention that this is really the basis for mitigation in these kinds of cases, understanding the clinical history of these clients. It's important to understand that criminal mitigation today, of course, is not simply an effective tool for the sake of argument, but it's a necessary factual underpinning to support the factors of 18 U.S.C. 3553(a) and other relevant case law.

  In other CLEs, I've talked about the reality that, especially in the post Booker age, criminal defense lawyer now have unfettered opportunities to present anything and everything to personalize and humanize, which is the subtitle of my book, to humanize the client towards a better legal outcome, to humanize the client given their challenges and traumas, their struggles individuals, and the particular difficulties that they have had through childhood, teenage years, and so on, in an effort to understand who these people are and how they gone to be so much trouble, based on their flawed decision-making, judgment, and so on.

  Clearly, the purpose of mitigation, which I've gone through in other CLEs is so important in complex trauma cases, because it's so important to humanize the client and present it through a sympathetic narrative, so that the reader can really understand what this person has encountered throughout their childhood, the abuses, and the neglect, and so on. We need to document the client's life history and contextualize their conduct, given what they suffered in childhood.

  Here, more than anywhere, professional expression really has to replace self-expression because the client himself or herself cannot advocate for themselves, given their history of abuse. Because it's so difficult, it's so humiliating, it's so shameful, simply talking about it can trigger deep-seated, negative memories. For this reason, it's not just a mental health report. We're not just saying, "Oh, because of these complex traumas, the person now has evidence that they have suffered post-traumatic stress disorder." No.

  We're trying to bring in a holistic understanding of this client's experiences growing up, as a means for the prosecutor, judge, and so on to see not just a mental health report, but truly a humanistic understanding of this person's experiences earlier in life. We have a single document that brings in snippets of the person's relevant family, education, employment issues, and so on, as a means to disabuse the prosecutor and judge of biases or prejudices or assumptions that they may have concerning this client, which can be corrected through a detailed psychosocial narrative.

  The most important purpose, and I say this in every CLE, is that those bloody pre-sentence investigation reports by the probation department are just wrong. I've never seen one that accurately reflects the mental health psychiatric and or psychosocial history of the client, and even more broadly, their employment and family connections and so on. So that necessarily, without a mitigation report, the client and the criminal defense lawyer is, I don't want to use the word complicit, but they are agreeing that this PSI, without being countered through a clinical mitigation report, agree that the material is necessarily correct, when in fact it is not, when in fact it does not reflect the correct mental health, psychiatric, and psychosocial issues that need to be tackled.

  The way we evaluate clients is through psychosocial evaluations. This is really the gold standard to understand a client holistically. It is not just about asking a client, "How are you doing and what's been going on in the last few weeks of your life?" To the contrary. This is a biopsychosocial evaluation conducted to determine if there are any factors that would explain how the client has come to be in so much trouble.

  We investigate the strengths and weaknesses, the vulnerability in the client's background, clearly, the client's general experiences, the quality of their relationships to immediate extended family members, which is sometimes called family dynamics. This includes, of course, siblings and aunts, uncles, grandparents, and other immediate community members. We want to know about the health and well-being of the client, including psychopathology from a very early age.

  We want to know how the client has interacted with his environment, his community, especially in the context of education, employment, socialization, and so on. We obviously want to know about the child's stressors, traumas, other major challenges, and this all helps us to humanize the client. Clearly, these aspects are extremely important in cases of complex trauma, where the individual has suffered abuse and neglect, because, clearly, what we want to know, the direct impact, in a linear manner, from the abuser to our client who was a child who was abused.

  We also want to understand, in a broader framework, the client's experience having to cope, having to defend themselves against all that harm within the context of their family, the home, the community, and so on. The study of the brain scans, genetics, and neurophysiology, they all have amazing merit and they can be very informative. But at the end of the day, we humanize the client and we understand his environment, culture, and family experiences through a detailed clinical psychosocial evaluation.

  I have a case that I did, this was about two years ago. I'll never forget it. It was a murder case, a inner city Black 25 year old who had suffered terrible trauma in his childhood, in a community where he also experienced drugs and alcohol, prostitution and violence. This person ended up being in a gang. It was an extremely sad case, clearly. Anyway, I saw him three or four times in jail. I did the evaluation and my suite-mate here, who's a very good criminal defense lawyer, suggested that I look at a neuropsychological evaluation undertaken for a very similar kind of client in a very similar kind of case.

  I don't do neuropsychological evaluations. I do psychosocial evaluations. But the point here is that my conclusions and the neuropsychologist conclusions were almost exactly the same. I used no testing whatsoever. I did a clinical evaluation, and yet we yielded the same clinical insights regarding the client's psychopathology and personal issues, based on the experiences that the client had at earlier stages of the individual's life. So that's the gold standard that we use. It's called a psychosocial evaluation.

  Now, there are many ways to consider a client's complex trauma and experiences in childhood, clearly. I just wanted to present one to you, and that is the ACE. It's called adverse childhood experiences. I would refer you to a article written by David Savitz in The Champion in 2019. The article was called A Handful of ACEs. The nice thing about the adverse child experiences is that it tends to capture the major abuse and neglect that the client may have experienced.

  Any criminal defense lawyer can use it, even if they don't have any clinical training or understanding. The ACE concerns physical abuse, sexual abuse, emotional abuse, physical, emotional neglect, intimate partner violence, mother treated violently, That is domestic abuse within the home, substance within the household, household mental illness, parental separation or divorce, and incarcerated household members.

  I have a specific slot in it that you'll be able to look at, but these are well-thought-out criteria to consider abuse and neglect. The effects of complex trauma, given the ACE criteria, are extremely serious. In other words, the researchers that looked at the ACE criteria, the adverse childhood experience criteria, really understand that these children, as they grow into later childhood, adolescents, and of course, even adulthood, they are at much greater risk having experienced these negative phenomenon for substance abuse, psychiatric disorders.

  They experienced chronic illness. They themselves have poor parenting with their own children. They tend to have severely poor interpersonal relationships, particularly in places of employment. They tend to become involved in the criminal justice system. So needless to say, the impact of complex trauma can be severe. It can be diverse and persistent across several domains of functioning.

  A domain of functioning concerns, for example, household functioning, employment functioning, functioning within different areas of the community, and so on. These issues are so serious that it can lead to early death, all kinds of diseases and disabilities. Individuals tend to adopt very risky behaviors, often in the context of impulsivity, which refers to poorly thought-out or knee-jerk reaction decision-making. There are social, emotional, and cognitive impairments, all sorts of problems.

  The issues are so serious that we can almost predict when individuals suffer adverse childhood experiences, especially if they are chronic and severe, and they concern multiple categories, that the person will have a very disorganized and difficult adult life, to the point where they may encounter severe psychopathology, including thoughts of suicide, lifetime episodes of depression, major problems with sleep and appetite, which are sometimes referred to as neurovegetative signs of depression. Very high risk behaviors, not just for drugs, but also with regard to sexuality, and all sorts of other issues.

  The test questions are very easy to administer for the ACE. I have used it before, and I know criminal defense lawyers who do not have clinical training employ it, and I think to their benefit. It helps them to understand the clients and the client's background. This is particularly true if for some reason, the criminal defense lawyer and or defendant do not have the opportunity, or means, or whatever, to procure a professional mitigation report by a clinical expert such as myself or someone else.

  I want to review for a minute, a few major caveats of what we're talking about now, that is the ACEs. The first, and I noted this before, the adverse child experiences should not be presumptuous. In other words, the fact that your client comes into your office with a $2,000 Armani suit, and they're a white collar criminal defendant, doesn't necessarily mean that they have not had severe adverse childhood experiences.

  I had a case, this was about five years ago. It was a mortgage fraud case. This individual came in with his wife. He was a very normal looking middle-class guy from the suburbs. He did very well. However, it came through the mitigation evaluation that he had been severely manipulated by his father throughout his childhood and adolescence. He ended up going into his father's business. His father was extremely controlling, possessive, and he could be quite manipulative and coercive in other ways.

  You would never have known it, speaking to this white collar criminal defendant, in this mortgage fraud case, if a clinical detailed history was not elicited from that individual. That's the first caveat. The next caveat of this area is that the severity of a single incident can be systemically damaging. Now, I know I said at the beginning, that complex trauma is about repeated incidents of abuse and neglect, but sometimes there can be one particular incident that is overwhelmingly psychologically damaging to the individual, and that must be considered.

  Next, microaggressions can lead to systemically damaging harm. This is very, very important. I'll give you a great example. I had a client who had a father who was very neglectful. The father, every two to three weeks, would say, "Oh, I'm going to pick you up in the afternoon after school, and I'm going to spend a couple hours with you." And over many years, the father, of course, almost always would not show up. He would be neglectful and not spend time or provide any support to the child growing up, throughout his formative years of development.

  Well, that doesn't sound like it's so horribly damaging, but I can tell you, that was a microaggression. To that child, he internalized a profound sense of abandonment, a profound sense of being unwanted. And as he grew up, he equated that with being worthless, that he had no value. It led him on a very, very terrible pathway.

  Next, people perceive and are affected by abuse and harm in idiosyncratic ways, which means that you may be harmed in one way and another person may be harmed in that exact same way, and you may walk away with very two very different results. Typical cases are car accidents. Two people experiencing the exact same kind of car accident with the exact same kind of physical injuries, one person, the next day, gets in the car and continues to drive, and the next day the other person decides, "No, driving, that's a very, very dangerous activity. I'm never going to drive again." People perceive and are effected by abuse and harm in various ways.

  Next, resilience is very important and a person may seem resilient. That is, a person may have experienced complex trauma in their childhoods. But the reality is that they nonetheless retain, even though they're resilient, they were able to go to school and maybe finish high school and college and have a career, and nonetheless, they retain a lot of this psychological damage from their childhoods and it needs to be asked about.

  The last thing is sometimes there's intergenerational trauma that needs to be asked about. I had a case where a woman had been working in her father's office. Her father was a doctor and the woman was stealing prescription pads and forging his signature, giving the prescription pads to her boyfriend, to sell on the street for analgesics, which are painkillers. This woman came from a family of Holocaust survivors of Jews who had perished in Eastern Europe during the second world war, and there was intergenerational trauma that needed to be considered. And when considered, we were able to mitigate the case very well.

  I also want to stress that trauma is not just household bound. It's extremely important to remember that there is non-household trauma. Again, someone that grows up in an inner city area where there's a lot of violence, and crime, and prostitution, and drugs, and gangs and so on, that needs to be considered. Another great example is prenatal. Before you're born, you may have been very damaged, for example, if your mother was an alcoholic, which, of course, can cause FAS, which is fetal alcohol syndrome.

  There can be all sorts of non immediate household issues in the community and so on, which can really damage an individual. I now want to look at developmental perspectives on trauma due to abuse and neglect. To reiterate, what we're talking about here are children who grow up in a home without healthy attachments or bonds, without healthy interpersonal love, care, and support from their mother, father, grandparents, caretakers, and so on. This leads to overwhelming stress.

  Stress because of abuse, neglect, prohibits normal developmental milestones, undermining the child's development and future profoundly jeopardizing and prohibiting normal functioning and interaction with others. It's important to understand that when I say developmental milestones, we don't only think about infancy and early childhood. For example, early developmental milestones concerns, when a child should first begin to walk, and crawl, and talk, make certain sounds with their mouth and interact with others, and so on and so forth.

  Childhood development is ongoing. In fact, we now know clinically and through research that development occurs throughout the lifespan. Geriatrics also develop. We retire at a certain age. Our health begins to decline at a certain age. In reality, it starts to begin to decline in our forties. But we're not just talking about development of young, young children, let's say, ages zero to one or two. We are talking about development of children throughout their early childhood, and latency, and school age, pre-adolescence, teenage years, early adulthood, and so on. It's ongoing.

  What is abuse? Abuse are acts of commission. Commission are deliberate and intentional harm that caregivers most often impart to the child. Obvious examples are hitting, slapping, beatings with belts, other objects, and so on. But it doesn't just have to be physical abuse. Clearly, it can be sexual abuse and other forms of direct harm. Almost all emphasis when complex trauma is considered pertains to abuse. However, as I mentioned previously, we have to consider neglect as equally important.

  The child who I mentioned before, who felt abandoned and unwanted because week after week, month after month, year after year, his father doesn't pick them up after school, doesn't come on that Sunday every two weeks to play with him, that child is I guarantee you as psychologically and developmentally damaged as his brother who suffers regular physical beatings by his mother who is extremely stressed, and frustrated, and angry, and isolated, because she's a single mother with incredible financial and other challenges in her life.

  Childhood neglect is actually much more complex than abuse. Abuse tends to be more concrete, and it tends to be more empirical. We can understand exactly what it is. Neglect, on the other hand, could be physical neglect, emotional neglect, medical and dental neglect. Very typical are caretakers who fail to take their child to the doctor or for dental appointments. Educational neglect, inadequate supervision, exposure to violent environments and so on.

  So when we think of abuse and neglect, on the one hand, we want to think of them as equally important, because I really, really believe neglect is as important. However, we also want to see how they inform one another and how they complement one another. There are many risk factors for victimization. That is, there are many risk factors for the child suffering complex trauma as a result of abuse and neglect. There are individual risk factors that include just simply the fact that the child is very young. The child may have special needs.

  There are special risk factors for the perpetration of it. And that includes parents who have very poor understanding of their child's needs, parents who don't understand how to care for children, parents who themselves suffered a history of abuse and neglect, those parents who have issues with substance abuse, parents who are very young, and frustrated, and angry, and depressed, those without proper social service support systems.

  It's very interesting, in post partum depression, which is a major factor here, because, of course, when a parent suffers postpartum depression and or psychosis, they're unable to provide adequate nurturing to the child. Those cases tend to occur more where the mother in particular does not have a strong familial and or social service support network. So that would be a risk factor.

  Another risk factor are transient caregivers. Another major area is general family risk factors. That is the family may be, for whatever reason, socially isolated. There may be disorganization within the family, family violence, domestic abuse, and the parents themselves may be at risk for one reason or another because of their own personal issues outside of the home, that really don't have anything seemingly to do with the child. But when the parent returns home, because of perhaps employment challenges, for example, the parent really contends with their frustration and anger through abuse or neglect towards the child in the home.

  There are also community risk factors. Just like a child who walked through the community fearing going to school because of gang members harassing them, well, that child's mom who has to walk through the community to get to her bus or subway or source of transportation to get to her place of employment, also feels anxious, and nervous, and frustrated, and so on. This also occurs in concentrated neighborhood disadvantaged areas, where there is, as I mentioned, high crime, poor social support networks, high incidents of alcohol, drugs, and so on.

  This leads clearly to behavioral and emotional dysfunction. The child may feel powerless, vulnerable, exploited. There may be maladaptive coping behaviors such as dissociation and emotional detachment, all sorts of issues that we can imagine that impact the psychological and emotional development of the individual. These individuals may be internally agitated. That means they're always hypervigilant. They're always very much aware of their surroundings, given their nervousness. It affects them physically.

  They may have increased muscle tone. Many complain of gastrointestinal problems, tummy problems growing up. It's the typical child who suffers from abuse and neglect, and he tells his teacher always, "I have a tummy ache. I have a tummy ache." It's a child who's trying to relate to the teacher aspects of the abuse within the home. They don't have the vocabulary or intellectual understanding about what's going on. And so, it's transferred to a physical symptom.

  Some of these child within the home demonstrate insomnia, bedwetting, eating problems, inappropriate sexual activity, or acting out, concentration problems, self-mutilation, apathy, defiance, aggression, all sorts of behavioral, emotional, and cognitive issues that one would expect from a child who is suffering abuse and or neglect, leading to complex trauma in his early stages of life.

  This may lead to a permanent stage of terror with neurological changes so that the individual never really regains a healthy sense of balance. If you have a depressed caretaker, that caretaker cannot provide healthy nurturance to his or her son or daughter. In the absence of healthy bonding, you cannot expect that that child to create healthy bonds with his or her siblings, or friends, or classmates, and so on.

  What happens? The child develops a survival mode because that's all they have to work with, simply surviving from one moment to the next. It's important to understand that some of these children suffering abuse will experience specific patterns of abuse. The very most typical example is the dad who goes to work all week, and he seems to be responsible generally. He gets his paycheck on Friday. He cashes it in and he goes out drinking with his buddies. He comes home Friday night and he is an abusive alcoholic, physically, emotionally, maybe even sexually abusive to his wife when he becomes inebriated that Friday night. And the drinking may go into Saturday and even Saturday night and so on.

  That is a specific pattern. But there are also non patterns of abuse. Sometimes abuse is just arbitrary and capricious. Sometimes children suffer abuse without understanding why, and they don't understand why not only because they're not intellectually developed because there is no particular reason. Sometimes there may be cultural abuse. It could be very idiosyncratic, which means that the abuser is simply abusing the victim for a particular reason that he has, that we really can't understand.

  There are both specific patterns of abuse that may exist, but they're also the reality that there may be no patterns at all. One interesting outcome of this is that the absence of patterns tends to lead to greater psychological harm. In other words, the child who sees his father come home every Friday night drunk, and the father's then physically and emotionally abusive, it's predictable, but more importantly, it provides certainty that child and it provides understanding, "Oh, my dad comes home drunk every Friday night because he gets his check, but he's a good guy during the week.

  In contrast, the child, who's not able to predict abuse and neglect, therefore has no certainty in his or her life. And without certainty, we cannot plan. We cannot feel safe and we cannot feel secure. There are many psychological attitudes that go towards the abuser. Sometimes the child feels a deep sense of hate towards the parent. The child may feel a deep sense of guilt. I see this over and over again where perhaps the child sees dad beating up mom and the child feels a sense of responsibility that, gee, I should be doing more to help my mother.

  But, of course, a seven year old that can only do so much. The abused child may feel sympathy toward the parent who is being abused because the parent is having a very hard time in life for one reason or another. The abused child may feel anger, may feel indifference. They may become emotionally shut down towards themselves or towards the parent. The abused child may also feel identification. They may see how the parent who abuses does something that's adaptive in a kind of paradoxical way.

  When the child then has interpersonal relationships as a teenager or young adult, they also have, in their interpersonal relationships, abuse. Sometimes there's just straightforward emulation. The child who sees his dad coming home every Friday night drunk, well, it sounds horrible, but the child may want to emulate that as a means to relate, as a means to communicate with the dad, given the dad's alcoholism and the dad's pathological functioning on the weekend.

  I want to look now at psychiatric consequences of complex trauma, because it's really one of the key areas that affects and pertains mostly to criminal defense lawyers in trying to defend and understand the defendant's behaviors and decision-making. The first thing I would say is that you really have to understand harm very broadly. Someone who's constantly thinking about their safety and security, they have no brain power left over to think about their life and to be curious, and to explore the world, and you can't blossom.

  We want children to blossom. We want children to be curious and explore. If you're always thinking about your safety, you cannot think about growth and development. The child can't think about who I am, and do I matter, and do I have an impact? We want children to think about that so that they can think about what kind of courses to take in school and to become involved in sports, and hobbies, activities and so on, music and whatever. Focus on survival means you can't explore the world. Focus on survival means you have to explore the immediate second you live in, in order to stay safe.

  The other thing is that complex trauma creates a value system. In other words, the harm that the child suffers because of the abuse and neglect that leads to the trauma also creates their values. This is what they understand. In sharp contrast, for example, you may have a home that's very healthy where the parents love to read. They always have books on their night tables, books on the kitchen tables. The children are being taken every week to the library to take out one or two books for the weekend.

  The children are not just reading on the weekend. They are internalizing a value system, "This is what's important, culturally, familiarly," and so on. We want to know how the client has been actively harmed, but we also want to know what has been lost. What's been lost is a sense of self-confidence, self-esteem, self-worth, and very, very importantly, a sense of loss of trust, not just a sense of loss of trust in the caretaker, but the child loses a sense of loss of trust in himself.

  I see this. I've done literally hundreds of spousal abuse cases, and I'll do a CLE on it soon. What happens is the victim, a female victim in the spousal abuse case, she loses trust clearly in her husband because of the abuse. But she loses trust in her own judgment. She feels, "How in the world could I have married such a monster? It must reflect something vague and negative about my decision-making."

  There are all sorts of other broad issues involved in terms of quality of life, everyday deficits in ADL's, interpersonal friction, community changes, and so on. All what I'm trying to say here is that complex trauma doesn't just affect the person emotionally and psychologically. It impacts how that person conducts themselves in their everyday lives outside of the home and outside of interpersonal relationships to immediate family members.

  I also want to stress decision making, because that's so important for criminal defendants. There's a school of thought very much supported by Richard Posner, the famous judge and a professor in the Ninth Circuit, about the rational actor, the rational decision-maker. It's completely misconstrued. We base our decisions not on rationality. We base it on emotions. After we make a decision, we then rationalize the decision we make based on our own theoretically logical and reasonable determinations.

  But it's all in hindsight. In fact, we base our decisions on emotions and psychological health and wellbeing, so that the client who has committed a crime, they're committing a crime not based on rationality, but based on dysfunctional and pathological psychological development and emotions that inform their decision-making. There are a wide range of neurological cognitive damage that occurs from all of this. The brain becomes dull. It's overactive. It's always nervous.

  People never regain emotional equilibrium. They're in a state of permanent terror as a result of complex trauma due to abuses and neglect in childhood. There's constant stress, pain. They feel there's no exit door. They're always hypervigilant. I've mentioned some of these before, but I really wanted to really summarize them in this particular area because they're so crucial. It informs how we process information, how we take information in, how we learn new information.

  That's why so many of these kids in school do so badly. They look like they have ADHD. But they can't process information. Their ability to retain information and their ability to have a working short-term memory is very, very much damaged. These are individuals who really have profound neurological and cognitive damage, and they may not look like it. But they certainly do because of the complex trauma.

  The other major area, of course, is emotional damage. These are clients who when you scratch below the surface, they may look strong, but they are extremely fragile and vulnerable. They have profound sense of shame and humiliation, fears, anxieties. They have constant exhaustion. They constantly feel overwhelmed. They find it very difficult to modulate their anger and rage. They have feelings of inescapable helplessness and hopelessness.

  They tend to overreact. They're quite hypervigilant, meaning they're always looking over their shoulder. They're always super aware of what's going on. They don't have normal coping mechanisms. They seem unable to process flight or fight responses. They may have feelings of incompetence, worthlessness, uselessness. They may feel very stupid and dumb and inadequate in their lives. They may have experienced a profound sense of betrayal. This is extremely important.

  Mr. Rogers, many years ago, when he was testifying before Congress, he said, "The one thing a child needs in early development is to develop a sense of trust in caretakers." Children who suffer complex trauma do not have the opportunity to internalize a sense of trust. They have rather internalized and felt a deep sense of betrayal. Therefore, they have distrust in relationships, including intimate relationships when they grow up. Their hopes and their dreams are dark. They're valueless.

  They may have lost faith religiously. They may have grown up in a Roman Catholic home, going to church every week, and may have undergone baptism and community and confirmation and so on. And yet they lose all faith religiously and spiritually because of the existential crisis that they have experienced as a result of the abuses.

  One of the single most important outcomes, and this is crucial to understand, is that many of these clients lose their sense of empathy. Some of these clients, they look like psychopaths. That is, they look like individuals with an antisocial personality disorder, but really what happened is throughout their childhood and adolescent years, because of the abuse and neglect that was ongoing and repetitive, they are unable to develop a real sense of empathy for others.

  They cannot identify or understand other people's pain or negative emotions because they themselves were never given that opportunity as children, and as a result, and this is really important to understand, they cannot understand their own pain. They cannot understand their own personal issues in that way. It's also important that many of these people end up with a wide range of healthcare issues. They have complaints of constant gastrointestinal problems.

  Many clients that have a long history of trauma, they have loss of hair and intermittent headaches and migraines, all sorts of body complaints, which really are very serious, but also have been neglected very often in their childhoods because they haven't been taken to proper medical specialists and so on. Many of these clients may have intellectual or learning disabilities. Many of these clients may be poorly educated or they have not had the opportunity to really do their homework in childhood, and as teenagers, because they're always worried about their survival, and they're always depressed.

  Children that have tons of levels of stress and depression, they cannot focus on their homework. Every child should be reading for one or two hours every day. You can't focus and appreciate reading comprehension or what's going on in literature or in a newspaper, if you're a very, very stressed. You just won't digest that material. Many of these children look like they have learning disabilities. They may have truancy.

  Many of these clients need IEPs, which are individual education plans, to assess whether they have learning problems. Really, sometimes if we're lucky, the school system or the healthcare system steps in where the caretaker has failed, but sometimes not. I like to ask my clients, for example, especially those who've really suffered terrible harm, "Have you ever read a book?" Can this individual do basic math? You'd be amazed at how many clients cannot.

  Many of these clients appear to have suffered separation anxiety disorder, which sounds paradoxical because, clearly, if you suffer abuse and neglect in the home, you want to separate yourself from the abuse. But in fact, there is pathological attachments and unhealthy physical and emotional bonds with the child and the caretakers of the home. So the child still paradoxically may develop separation anxiety and may have attachment disorders.

  In other words, because they themselves never properly attached to parents, that child may not be able to properly attach to girlfriends and boyfriends and classmates, and even coworkers as adults within their place of employment. Many of these clients, as I noted before, may have borderline personality disorder. We have a completely separate CLE on it. But it's important to understand that a third of all people with a BPD have been shown to suffer abuse, and particularly sexual abuse, in their childhoods.

  There are all sorts of social and interpersonal consequences. And I noted some of these before, but I want to re-emphasize. Many of these clients end up sometimes very shy, and awkward, and withdrawn. They're very socially conscious. They may have deep social anxiety. These are kids who sometimes in class never put up their hands. They never participate. May be very easily annoyed or hypersensitive to other people around them.

  They may use violence as a means of communication because they saw violence within the home, and they thought the violence was a way to communicate feelings, especially negative feelings. Many of these clients seem to have personality disorders, as I just noted, borderline personality disorder, but also antisocial personality disorders and others, when in fact those considerations are important. But it's equally or more important to consider the possibility that these are individuals who have suffered a complex trauma.

  Another huge thing that I see over and over in these cases is ADHD, attention deficit hyperactivity disorder. What I think is going on in many of these cases, even though I put a consideration of ADHD for the mitigation report, is that, again, these are people who have suffered neurological damage from the abuse that they have suffered. They are very disorganized cognitively and otherwise. They're very hypervigilant. They can't focus. They're always on edge.

  They're disorganized in their daily life with regard to homework and so on. They're always on the move. Well, this sounds, of course like ADHD, but it's as a consequence of damage done to the individual. We have to move away from thinking of physical abuse as resulting in physical damage and to consider physical abuse, but also neglect as something that causes damage in a much more systemic manner to the victim.

  Another major issue clearly is post-traumatic stress disorder. Post-traumatic stress disorder is something that is always considered. But when I do these cases, although I point out PTSD, I try always to write a page about complex trauma to differentiate them, to say that, of course, this person has suffered PTSD as we understand it, in the DSM. But more importantly, we want to explain it as complex trauma, because so often in PTSD, the person has suffered a particular issue that has made them fear for their safety or their lives or whatever, such as for example, a car accident.

  But in complex trauma, we really want to emphasize, in contrast to PTSD, that complex trauma involves repeated long-term harm, physical, emotional abuse, sexual abuse, verbal abuse, and so on and so forth over many years that damages the person in a much more profound way.

  The next area, of course, is major depressive disorder, as one can imagine. People will become depressed if they're constantly abused. These are people that often, because they're children when these abuses go on, do not recognize depression. Second, many children express and experience depression in a way that is different from adults. When children are depressed, they tend to be antisocial. They tend to lash out. They tend to be oppositional. They focus not on homework, but rather very benign and mind-numbing activities such as electronics and digital devices and so on.

  But one very huge overlap between adult and childhood depression is anhedonia. That is both really don't have the capacity to feel or capture pleasure from normal daily activities and routine conduct. But as noted before, many with depressive disorder, including children, will have problems with appetite, self-esteem. Some of these children develop actually insomnia, not just sleep problems, but long-term insomnia where they're really not sleeping well. They get up the next morning and they're exhausted, and they need to go to school, just like adults need to go to work. But they go to school and they can't focus for the first hour or two on what's going on, and they fall far behind.

  Another major area is suicidality. I love to ask about it because it concerns deep feelings of overwhelming despair and profound psychological helplessness and pain. Adults experience suicidality rather commonly, believe it or not, but it should never be ruled out for children. This is especially because of something called passive suicidality. Active suicidality is when you have a plan, you think, "Oh, life is so horrible. I'm just going to take pills, overdose, and then I'm going to die."

  But you also have passive suicidality where people think, "Things are horrible. I just hope that I just sleep and sleep and sleep and sleep and never wake up so that my psychological pain can vanish." Passive suicidality is no less important to ask about than active suicidality, although you'd be surprised as to how many adolescents in the United States have, at some point, engaged in active suicidality in one form or another, in particular, something called self harm.

  That includes people who engage in self cutting, or self-mutilation, or engage in activities that are clearly very risky or harmful to the individual. Many of these clients have experienced learned helplessness. That is they have a sense of powerlessness arising from the trauma they've endured, leading to feelings of worthlessness. They may even have inappropriate guilt, meaning they feel guilty about feeling this way. But more paradoxically, they feel, "My mom was also the victim of abuse in the home. Why didn't I do more to protect my mom?" They may feel guilty about that.

  Or, "My younger brother, the poor kid, he's four years younger than me. He's being beaten up. Why can't I help him?" Victims of abuse often feel shame, humiliation, self blame, and so on. The worst thing is, of course, that these occur in a environment where the person feels trapped. In other words, in the best case scenario, an adult who's the victim of domestic violence can leave her husband. But it's almost impossible for children to leave their parents. And sometimes, the police and social service supports are quite frankly inadequate.

  Many of these clients suffer from panic attacks, where they have pain in their chest and shortness of breath, feelings of unreality, sweating, nausea, and so on. These may be intermittent, and if they happen chronically, they could actually be a panic disorder. Many clients develop chronic bodily symptoms. They may feel chronic pain in their stomach or chronic headaches, and they may become very occupied with that pain or body problems.

  They may see doctors and the reality is there's no physical or medical explanation or ideology, but rather it's caused as a result of their psychological pain. There may be also a conversion disorder, which is a functional neurological symptom. It's a fancy term for saying, for example, you bend your arm and you just can't bend it back. You go to the doctor, the doctor says, "Well, there's really nothing wrong with you physiologically," and it may be a conversion disorder.

  Many clients suffer immune system dysfunction because of long-term trauma. They may have, as I mentioned before, extremely poor sleep, insomnia, fatigue. They may just feel chronically unwell. People will say, "I've been to doctors. They really can't find anything. But I just don't feel well. I don't feel good." Some of these clients develop dissociative disorders because of complex trauma. This occurs because the client was unable to run away or to fight back against the abuser.

  And so, they sort of remove themselves psychologically from that situation. It's something that should be asked about as well. Many of these clients develop drug and alcohol problems that could be chronic and extremely deadly. Some of these are, of course, individuals who suffer also addictions to illegal drugs. Some of these clients get help as adults, some don't. We want to know how often they use the drugs or alcohol and to what extent.

  Some of these clients may have psychotic episodes. If you're always considering your safety, then you may become psychotic. I used to see this with clients that came out of jail. Why? Because they always had to look over their shoulder, fearing their safety, and they became hypervigilant. Some of these clients may have psychotic ideation. For example, they may be walking down the street and they hear their name being called, but no one is there. That's a delusion, a false sensation of sound that's audio.

  They may also have hallucinations. For example, a client that was beaten up at night every day for many years may then have hallucinations when they are adults, of people walking around their room at night because they're so hypervigilant. Some of these clients with complex trauma may suffer factitious disorders, whereas... These are individuals, and this is a very serious issue, where they have a condition in which the person acts as if he or she has an illness by deliberately producing or feigning or exaggerating symptoms for psychological or emotional gain.

  In other words, these are people that go to the emergency room. They don't really have any physical or medical problems, but they need social service support. They need psychological, emotional support. This is a cry for help. Clearly, many of these clients appear to have antisocial personality disorder or psychopathy, as I noted before. But it's just as important to consider if this person has simply been the victim of horrible complex trauma throughout their childhoods. And as a result, they develop without a sense of empathy and they seem to have antisocial personality, when in fact they have been the victims of just unspeakable abuses.

  Many of these clients will present in atypical ways. That is, historically, they may not present with depression, anxiety, and so on. But you scratch beneath the surface and they do have aspects of these symptoms or criteria of these mental health issues that need to be considered on an individual basis. Many of these clients over the years have not gotten help because it's perhaps anathema to their culture. They may be stigmatized within their family for gaining psychiatric support.

  Many clients seek an element of support from their church or temple. They may have religious support or from fellow parishioners or from extended family members, and all these matters may be asked about. I've had some clients who have gained enormous support from teachers over the years, who've acted as counselors. They go to the teacher once a week and they seem to be going for homework, but the truth is they really need emotional and psychological support.

  They don't go to the school counselor. That teacher becomes a kind of friend or mentor and could be very helpful and can provide real insight. Many of these clients feel a deep sense of shame and ignorance about their mental health issues. Some don't have access to proper social service supports. The truth is many of these clients have simply never spoken about the horrific complex trauma because of abuses and neglect that have led to profound psychological and neurological damage throughout their formative years of development.

  Thank you very much. What I've tried to do today is present a comprehensive understanding of complex trauma that so many of our clients have experienced, how to conceptualize it, categorize it, and ultimately how to consider evaluations that will best advocate for our clients, not based on just their immediate problem, but given a holistic understanding of the abuses, neglect challenges, and problems that they have suffered in earlier developmental periods growing up as children. Thank you very much.

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1h 1m 58s

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