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Domestic Violence in Intimate Terrorism: Mitigation in Criminal Defense

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Domestic Violence in Intimate Terrorism: Mitigation in Criminal Defense

Abuse of domestic partners in the form of physical, psychological, financial, sexual, and related forms of abuse tends to be systemic in nature causing complex trauma to the victim who suffers overwhelming psychological and emotional stress leading to various psychiatric issues forcing the victim to contend in unhealthy ways while experiencing deep feelings of helplessness, hopeless despair, and pain. This program will provide a detailed understanding of the victim’s experiences and challenges for the criminal defense lawyer in such cases.


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


Mark Silver: Good morning. My name is Mark Silver, and today I'm going to be presenting on a extremely important topic for criminal defense lawyers, and that is domestic violence as intimate terrorism. That is, I want to look specifically at how criminal defendants who are accused of defending themselves against attackers within the home and predominantly spouses experience complex and overwhelming trauma as a result of various kinds of abuses. The idea here is to understand the experience of the victim within the home, and therefore to understand in what ways that victim interacts with the abuser, in what ways the victim suffers long term psychiatric issues, and in what ways the victim is fundamentally changed emotionally, neurologically, interpersonally, and otherwise.

  The book I have is called Handbook of Mitigation in Criminal and Immigration Forensics, subtitled, Humanizing the Client Towards a Better Legal Outcome. What kind of client needs to be humanized more than this kind of client? An individual who is suffers systemic abuses within the home and now is trying to defend himself or herself because they have been accused of self defense. Domestic violence is pernicious, it is extremely serious, but most importantly, it's secretive. That is the vast majority of abuse that occurs within the home is unknown outside of the four walls of the house or the apartment. It's usually unknown by family members externally, or even school workplace and friendships and so on.

  What we're going to try to do today is look within the home, take the roof off of the home, peer inside and try to understand what the experiences would be like of the individual. On this note, I also wrote a book, it's actually a novel, called The Arranged Marriage. It was published in 2017. It's based on hundreds and hundreds of immigrant cases that I've done for spousal abuse victims, and I collapsed these cases into a novel. It may be very useful for criminal defense lawyers because it really looks at an individual's experience within the home, the kinds of abuses that they suffer, and more importantly, how they're thinking about themselves, how their interpersonal relationships, their self-esteem and so on becomes quite pathological.

  I've done about 2,000 cases at this point, many involving abuse and trauma, particularly spousal abuse cases as I noted, asylum cases, U visa cases, complex trauma and personal injury, and all of these involve in various ways investigating harm. Of course, spousal abuse victims fundamentally have suffered a wide range of harm within the home. I want to talk about the outline. We're going to look at types of abuses that the victim suffers, then we're going to loo at complex trauma. We're going to look at complex trauma as a conceptual framework to understand the kinds of harms that the spousal abuse victims suffer within the home, then specific mental health problems.

  Lastly, although we won't review it, I want to leave it here for your review. I've written out a set of questions that I ask in my evaluations to understand holistically what the victim has suffered, and I've included them within the slides and you could certainly look at them at your leisure. Let's start with types of abuse. The first thing I want to say, and we'll talk about this after, but it's crucial, we're not talking about a single instant of abuse with domestic violence. We're talking about sustained abuses over many years in many different forms, and this leads to something called complex trauma and we'll define it later. The other thing this leads to is overwhelming stress.

  I'm not talking about anxiety, I'm not even talking about clinical anxiety. I'm talking about massive levels of stress on the brain neurologically, on the body physically, that causes all sorts of psychiatric and psychological and emotional and neurological damage. The person is marinated in trauma. It's not like a car accident where you walk away and you slowly become rehabilitated because of injuries. You're marinated in trauma because you have a terrible instance of trauma on a Friday night and you're healing, and then Saturday and Sunday, the two other instances of trauma, and then more instances of trauma.

  This trauma and the abuse is malignant, it's purposeful, and it's hateful. There are cycles of abuse, and this is extremely important to understand. A common cycle occurs, for example, with alcoholics, where the alcoholic husband comes home and it's Friday night, he's had a long week, he's cashed his check and he's very, very drunk. The predominant abuse occurs on Friday night and Saturday and so on. Maybe he becomes inebriated again Saturday night. But comes Sunday, he calms down, he's preparing himself for work for the next week, and in fact, he may act quite normal outside the home and be quite responsible in the workplace.

  During the week, for various reasons, he may not drink at home at all, and then the pattern starts again the following Friday when he cashes his check for the week and starts to drink again. That is a cycle of abuse that's very predictable. There tends to be, in general, periods of making up, then calm, then tension building and so on after a specific instance of abuse. Although unfortunately, there are also many cases, and this is crucial to understand, where there is no pattern of abuse whatsoever. That is the abuse may be arbitrary, may be psychopathic and may be very idiosyncratic from the perspective of the abuser, and therefore there is very little predictability or patterns that we can really understand within the abuse.

  It's also extremely important to understand that absence of patterns actually lead to greater psychological harm. In other words, there's this famous experiment years ago where you had two cages with mice. In one, the mouse was shocked at regular intervals quite frequently, and in the other one, the mouse was shocked at irregular intervals, but much less frequently. In fact, the mouse that was shocked more frequently with regular intervals did better. Now, how is that possible if they're receiving greater amounts of harm? The answer is that mouse gained predictability, gained certainty.

  The mouse knew when the harm would come and therefore had a better understanding about when to experience harm, and therefore, as I said, certainty and predictability about their own safety and their own wellbeing. There's a particular group of people in the United States who are targeted for harm, and I'm sorry to say, but this is immigrant women. I've really done, as I said, hundreds of cases with immigrant women, and it's particularly because these immigrant women are extremely vulnerable without a green card, and their abusers know that and they're able to manipulate them and control them because they don't have green cards and threaten their safety.

  This is particularly true when the immigrant women have derivatives, that is children, either in the United States or in their country of origin. It's also extremely important to understand that when evaluating your client as a criminal defendant who has been accused in these cases, before looking at specific abuse the person may have suffered, look at pre-abuse. By that, I mean is there's usually a period over weeks or months where there's an erosion of trust, there's a breakdown of communication, and there hints of real, real problems, even though there's no concrete examples of abuse at that time. However, that pre-use period, as I like to call it, can really be very indicative of what is come, and there are often red flags during this period that will really portend to future abuse incidents.

  Let's look at specific incidents of abuse. First obviously is physical abuse. People that have been victims of abuse are really primarily concerned with what is most concrete, and one can understand that. We're going to look at physical abuse first, but I really don't want listeners today to jump on physical abuse as all important because the other forms of abuse quite frankly are even more important. Physical abuse is obviously defined as any unwanted contact between the abusing spouse and his partner, and obviously it concerns direct hitting, slapping, kicking, punching, elbowing, mean spitting, scratching, hair pulling, tripping, choking, and so on. Those are direct examples of physical abuse.

  However, I also ask about indirect, for example, using objects such as being beaten with objects or hurt with objects. I also have a lot of clients live in homes where the abuser will throw objects. They will throw a furniture or glasses or dishes either to scare the victim or throw these objects directly at the victim as a form of physical abuse. Another physical issue is threats with guns or knives or other deadly weapons, even, for example, baseball bats. It does not necessarily mean the person is taking out the baseball bat as a deadly weapon and then hits the victim, but rather they burnish it, brandish it rather.

  Brandish of course means that the weapon is taken out and used as a threat just as we will see with verbal abuse that it can be used as a threat. The other kind of physical abuse is anything that is indirect, such as forcing the person to sleep outside of the home or turning the heat up very high or refusing to put on the air conditioning in the middle of summer and many other examples similar to that. Finally is the abuse towards others. In other words, sometimes within the home, the victim may be living with a family member, a sister, or a child or whatnot, and the abuser abuses the other family member just as much or even more so, and that is extremely important because the victim can suffer trauma from that as well.

  The rule here is to think about abuse really in a very holistic way and not just the traditional understanding about it as unwanted physical contact. Next, psychological abuse. This is very complex. It involves control, manipulation, coercion and so on. Psychological abuse can also include possessiveness where perhaps the abuser isolates the victim, disallowing her to go into the community or have contact with friends or family or use communication devices. I've even had psychological abuse cases with physical absence that occurs where the abuser goes out on a Friday night drinking and doesn't come home until Monday morning, and the victim is actually extremely frightened.

  Is my husband in jail? Is in a car accident because he's been drinking? It causes a great deal by uncertainty and fear for the victim. Psychological abuse can be passive, it can be very active, and it tends to be extremely devastating, undermining the sense of confidence of the individual, and ultimately the individual with enough psychological abuse will become extremely doubtful about their own ability and capability, and they will feel worthless about themselves. There's something also called emotional abuse, and it's actually a little different from psychological abuse, even though most people collapse the two ideas.

  Emotional abuse concerns more feelings, that is manipulating a person's direct feelings, forcing them to feel sad or happy or anxious or nervous or upset and so on, and it's something that should be asked about as well. Clearly, there's a strong link between emotional and psychological abuse, but it's important to also tease out the individual differences because then you get examples of when these occur. Verbal abuse is defined as any negative or derogatory words directed at the abused spouse, including blame and judging and criticizing, trivializing, name-calling and so on. Many of these cases that I see, there is direct expletives and curse words used towards the individual.

  They may include insults regarding the person's physical issues, saying they're fat or ugly and so on. There may be racial or cultural or religious slurs or expletives. Some verbal abuse are also threats. In other words, the abuser may say, "I will kill you," or, "I will hurt you." Well, those are threats of physical harm, but nonetheless they're verbal. While I always ask about them in the realm of the verbal abuse, I'm also cognizant that they may have physical ramifications. The other thing is, because most abuse occurs privately within the home, and especially physical abuse because the abuser does not want to be arrested outside, verbal abuse is different because verbal abuse can occur outside the home, especially in public areas such as shopping areas and so on.

  When it happens, the victim feels horrible. The victim feels humiliated and ashamed because it occurs in front of strangers or family members and so on. Because of that, it actually can have and can yield more valuable information about how that individual's self-esteem has been destroyed. Sexual abuse is extremely difficult to ask about. Most lawyers do not, or at least not in detail, but it's any unwanted sexual interaction. One of the problems I see in many cases by the way is that I'll see victims who actually have consensual sexual interaction with their abuser at some point.

  But on other occasions, there will be non-consensual sexual interaction, and it's important to distinguish them and therefore document them. There may also be physical harm within the sexual harm. In other words, in an effort to sexually abuse an individual, the abuser may physically force or hold down or slap or hit the victim in order to make them submissive. Clearly, the most known examples of sexual abuse are vaginal sexual abuse, but there's also anal sexual abuse, oral forced sex and so on. This is particularly important because many forms of anal sexual abuse can cause tissue damage, terrible pain, bleeding, and of course, personal humiliation, and it could be extremely degrading.

  Sometimes the victim is harmed through objects, which also need to be asked about. There could be also indirect sexual abuse such as when there's a betrayal of commitment through marital vows and whatever which leads to infidelity, which can make the victim feel extremely low about themselves. But physically, it could also lead to not just the betrayal of trust, of course, but it could lead to STDs and all sorts of diseases. Although it's relatively unusual, and about 10% of cases I do have victims who tell me that after they've seen their gynecologist after a number of months or even years, that they're diagnosed with problems including viral infections or bacterial infections that mandate antibiotic prescription treatments.

  The next form of abuse is a financial abuse. The financial abuse includes the withholding or misuse of personal or joint funds, including legal transactions. Financial abuse makes the abused spouse physically reliant on the abuser for food, shelter and all other basic necessities, such as transportation money to travel to and from work. Financial abuse is really very frightening if you think about it, especially if you're an immigrant woman who's relying on her husband because the person really cannot buy basic necessities for themselves. Physical abuse can take many forms. I've seen, for example, victims who are forced to give paychecks over to their abusers, abusers who take advantage of joint bank accounts or credit cards.

  There can be direct stealing. It's not uncommon in my cases to see extortion, especially in immigration spousal abuse cases where the abuser says, "Give me $500 or I will report you to immigration services and have you deported." There are all sorts of financial abuse issues, and similar to physical and sexual abuse, it has to really be considered in a systemic matter because finances and monetary support clearly affect a wide range of areas in our lives. Many times the financial abuse, and we'll get to this in a minute, also reflect lifestyle problems on the part of the abuser.

  In other words, one of the reasons the abuser is stealing money from the victim is that the person needs money to support a drug habit, for example, or because they're partying and going to clubs every weekend, and that needs to be considered also. The next major area is religious and cultural abuse. This is actually something that I've thought about more and more in the years of past, but I see a lot of clients that marry one another from different religions and different cultures, and the abuser can be very denigrating about the victim's religious practices or spirituality, going to church and so on. This can also involve racist slurs or denigration regarding cultural practice, all sorts of things and it could be very, very devastating to the victim.

  For example, I've had a number of women who are from Muslim backgrounds and they marry men here in the United States and the men insist on cooking and having pork in the kitchen and as part of their meals on a regular basis, and of course, pigs are not allowed in the Muslim religion and other religions as well, of course, including Judaism. As a result, it really affects the victim in a very fundamental way because the victim has to eat three meals a day and having this forbidden food in the house and in the kitchen is extremely abusive. Child abuse is also extremely important, even though the victim may be an adult.

  If there is abuse or neglect towards the child, it obviously affects the adult victim as well. I don't want to go into child abuse in detail, but similar to adult abuse, it could be physical, emotional, sexual, financial. It can evolve a wide range of issues. When we talk about child abuse, we usually think about abuse as a concrete issue, but really neglect of children is just as important. One of the most important examples of course are for adult parents who say, "Look, I'm going to pick you up at 5:00 in the afternoon, and we're going to go somewhere," and the adult parent doesn't show up.

  That is a form of abandonment and the child feel unwanted, unloved, and the child begins to blame himself or herself for what's occurred. This is very relevant because the parent who has been a victim of abuse within the home over these months or years is going to have double duty. They're going to be acting in some ways as a single parent. There may be a stigma attached, and they're going to have to deal with not only their own psychiatric and emotional problems as a result of the abuse, but they're also going to have to contend with the health and wellbeing of the abused child, and it can have a very significant impact. Moreover, many instances where the child who's been abused will blame the victim.

  In other words, the child who's been abused will look at the parent who's been a victim and say, "Well, why aren't you doing more to stand up for me? Or why aren't you doing more to stand up for yourself?" The child who's been abused paradoxically may actually identify with the abuser, making the job of the adult victim all the more challenging as a caretaker. Perhaps the most important development in considering abuse cases in the last 10 or 15 year is technology abuse. We now rely on digital devices, including smartphones for not just obviously communication, but social media, weather and sports and information about general news.

  We have, of course, all sorts of social digital communication apps, including Facebook and whatnot. In many cases, I see the abuser confiscates phones or disallows computer use or insists on knowing passcodes to personal communication app devices and so on. This technology abuse, which may not sound very serious, can be in fact the most invasive, because of course we keep extremely personal information on our computers, right? We keep information in our own heads, which is extremely personal, but no one can get at it. But we transfer that information to our social and media devices and so on, and if the abuser has access to it or can limit it or can invade it, it could be extremely devastating, embarrassing, and so on.

  Another major area is what's unfortunately called culturally appropriate abuse, and I see this a bit because I do so many immigrant cases where the victim feels that they can't talk about abuse because it's culturally appropriate or they saw abuse growing up with their parents so they think it's normative. Or they think that because they have grown up in a environment where women are second class citizens, that they don't have the right to go to the police to complain about an instant of physical or psychological harm or threats or whatnot. Clearly, it doesn't matter because it's no less serious. Culturally appropriate abuse is abuse by definition.

  What we need to do is adopt an objective stance. Obviously, the subjective experience of the individual, of the victim and her cultural vantage point is very important and may need to be taken into consideration to understand holistically the relationship and what's going on in the home. However, at the end of the day, it's an objective understanding about the relationship and the abuse that we're really looking towards. Perhaps most importantly is the fact that a large number of people who abuse do so in the context of alcohol and drug abuse. Alcohol magnifies all abuse issues. Many abusers who abuse drugs and alcohol need money leading to financial abuse. It makes their moods unstable. Their behaviors are often quite erratic.

  Excuse me. The reality is that individuals who abuse drugs have at least one other problem. In other words, someone who's abusing drugs have not only drug abuse alcohol, they almost always also have trauma in their past, they're contending with a long history of depression, they have a long history of financial or other problems, they have a long history of personal and family dysfunction. The victim within the context of the relationship or the marriage with the abuser is not only contending with the abuse that she suffers with her abuser in the intimacy of the relationship, but the abuser himself also has a long history, clearly, of personal issues and psychiatric problems and so on.

  This is a really good way to end this section. Who in the world is going to be abusing another human being on a regular basis through physical sexual, financial, emotional, and other kinds of abuses? Clearly a person who himself suffers from very serious personal issues, very serious drug or alcohol issues, very serious psychiatric issues, a person who himself has suffered from a long history of very serious family or personal trauma and so on. This is very important for criminal defense lawyers because you're not going to have an opportunity necessarily to really understand the abuser, right?

  The defendant, as your client may give you a lot of information through an assessment about the abuser, but you cannot interview the abuser directly. But you can infer substantially about the person's history and wellbeing and functioning through their behavior, through their moods and personal presentation, decision making, judgment and so on. One of the major problems, and this is really an introduction to the next section called complex trauma, is that it's hard to understand conceptually what a victim has suffered. What I do is I use the analysis of complex trauma. Complex trauma is something that I teach about to criminal defense lawyers for clients who have suffered repeated physical, emotional, psychological, and other traumas throughout their childhood and adolescent years.

  It's a rough analogy, but it's an extremely important and conceptually valid analogy because it helps us to understand how an adult female victim has suffered and what the outcome has been. Just as the child will develop with systemic, emotional and neurological pathology throughout their childhood in adolescent years, that is core years of early development, and the child's ability to self-regulate emotions and relate to others will be pathologically harmed, so to a victim, an adult victim, who's been a victim of spousal abuse and domestic violence in the home will have the same experience. Why?

  Because both the child who has suffered as a victim within the home and an adult woman who suffered within the home has suffered overwhelming levels of stress. I cannot stress the stress enough. It's not like stress as we understand it in a normal or a parochial manner or in an everyday manner or even in a psychiatric manner. I'm talking about individuals who are bombarded by stress month to month, week to week, day to day, and sometimes even hour by hour by abusers who's hurting the victim through these various forms of abuse. What I also want to emphasize is that just because a victim from let's say 2:00 PM to 6:00 PM is not being harmed in any way during the day because her abuser is outside of the home, doesn't mean she's not suffering from stress.

  There can be ongoing anticipatory anxiety, there can be ongoing anticipatory stress. Always fearful, always hypervigilant when the abuser will come home or phone and be demanding and be verbally threatening and so on. I really can't over emphasize it enough, and truthfully, it took me years and years to really understand what it means to live with overwhelming stress over many months and years with an abuser and the outcomes that it causes. Just as children must develop in a loving, safe, secure, and stable environment, individuals in adult intimate relationships also need that. They need certainty and love and support and predictability and a sense of safety within the home and so on.

  When this is impossible, just as a child cannot develop with normal developmental milestones, so too it is impossible for the victim as an adult to have any sense of adult, a healthy lifestyle, either within the home or within their workplace or within hobbies or activities that they've previously enjoyed or with other family members and so on. There's a few caveats I really want to mention here. The first is that the severity of single incidents can be systemically damaging. Now, it's true I've been talking about complex trauma where victims suffer various forms of trauma repeatedly over many years, but it's also very important to understand that there could be single incidents that are overwhelmingly damaging to the individual.

  The example that I talk about a lot are individuals that suffer horrible abuse within the home, particularly physical and sexual abuse, and then one day they're out with their abuser with extended family members and the abuser is verbally degrading toward the victim. But that single incident is much more damaging because it's in public and they feel horribly humiliated with family and friends. That may be more psychologically damaging than months of physical abuse. Next, microaggressions can add up to systemically damaging abuse. This is hugely important for verbal abuse.

  You can eat away at a person through verbal abuse, through degrading and hurtful comments, indirect threats and so on, which may not seem overwhelmingly damaging. But cumulatively, they add up to really eating away at the person's self-esteem, self confidence and so on. These microaggressions can be extremely damaging. Finally, the last major caveat is that people perceive and are affected by abuse and harm in idiosyncratic ways. It's important to look at this objectively as I noted, but we want to know subjectively what's going on with the client.

  We want to know both positively and negatively. A client may, for example, and I noted this, grow up in a culture or family where females are degraded as second class citizens, and they may have fewer opportunities for employment and education and so on. They may have grown up to see their own mother physically abused. We want to know that objectively, but we also want to know subjectively what that person experienced. We also want to know therefore what is that person's experience of harm? Paradoxically, a person, and I've seen this many times very interestingly with sexual abuse, where a person is repeatedly raped by their husband.

  But because they feel that they have a duty to engage sexually with their husband, they don't consider it rape. They don't consider it sexual abuse at all. The fact that the person doesn't consider it subjectively harmful, even though it sounds horrible to the listener, we have to then shift to the objective side and say, "Yes, this is nonetheless inappropriate. This is nonetheless a form of harm and victimhood and so on." The subjective and the objective need to be balanced all the time. The psychological attitudes towards the abuser are very important. Many times we see clients who are in dependency or co-dependency relationships, especially if both are alcoholics.

  Many victims feel that they stay in the relationship because they believe they can truly help the abuser, they think that they have particular insights into the abuser's psychological wellbeing. Many of these victims feel deep fear and confusion and betrayal and deception, and that keeps them in the relationship. Sometimes the abusers feel a deep sense of sympathy and identification for various reasons. Many are simply in denial. Some can't get out for various reasons because they fear for their safety. Not because of the abuser, but as I said, for example, with immigration clients, they feel that the abuser may report them to immigration authorities.

  Many forms of abuse really thrive in silence. This is why it's so dangerous within the home. But once it's reported, in the light, it becomes a lot less threatening. But within the home, the psychological attitude, it's quiet, it's not shameful because other people don't know about it, and therefore it can be maintained. Lastly, the victim often asks, "Maybe I'm to blame. Maybe I really did something wrong." The victim asks, "If I'm in this situation, maybe it's my fault because it reflects poor judgment on my part. It was my decision to marry this individual or to cohabitate with this individual, certainly I'm to blame."

  With complex trauma, and the reason I brought it is it's so important, when you're constantly preoccupied about thinking about your safety and security, you've no brain power left over to consider your health and your safety outside of that relationship. You have no opportunity if you're always worried about at your safety to consider your self-esteem and your self-worth and other possibilities. When stress response systems are always activated at a heightened level, then the focus on survival is primary and it's different to focus on anything else. The abuse and the interpersonal harm that the victim suffers creates, for lack of a better term, a value system.

  In other words, the victim begins to see the world in that way, and I've seen this with hundreds of cases of women who've been the victims of harm, and I've seen hundreds of cases with children who have been the victim of harm within the home, where when they see physical and emotional abuse within the home, they think, "Well, the world is a terrible place. The whole world is vicious. The whole world is abusive," and of course it's not true. It's important for criminal defense lawyers, therefore, to understand harm broadly. We want to look at specific examples of physical, emotional, sexual, verbal abuse and so on.

  But we want to look at harm broadly, that is we want to look at how this victim's life is fundamentally changed, how they no longer have a sense of certainty and safety and predictability in their lives, how they no longer enjoy everyday activities and their deficits in functioning, how the client who once enjoyed sports or athletics and going to family picnics doesn't do those things anymore, and how there's now a real lifestyle change in community loss. This is what I do, by the way, with personal injury lawyers when there's harm such as clients who've suffered harm in an automobile accident or whatnot.

  You want to understand not just specific harm, let's say how a motor vehicle accident victim has hurt their back, but how that injury systemically affects that person's everyday life. This really gets us and this is huge, of course, in personal injury for civil litigation lawyers, the eggshell rule. You look at this victim of domestic violence within the home. What was she like before? Perhaps she's a victim because she was particularly vulnerable or fragile or because she was previously in another abusive situation, which is quite common. We take the plaintiff as you find them. That's the rule in civil litigation.

  It's the same thing in criminal defense work for mitigation. I look at the client, and when I'm evaluating them through a psychosocial assessment, I ask who this person was in the weeks and the months and the years before this person came to be in this terrible situation. I then want to understand in what ways the abuser's behaviors has exacerbated and further injured this particular individual. I also generally want to look at functioning over narrative, that is sometimes the client doesn't have very specific narratives and they may have poor memories and they may have difficulty ascertaining or putting their finger on specific examples and dates of abuse.

  We look at their functioning overall. In what ways they're functioning deficient from what it was five and 10 years ago, in terms of interpersonal functioning, employment, community and so on and so forth. It can be very helpful in these kinds of situations to get parallel interviews, assess the whole family and so on. I can tell you the parallel interviews I get from other family members provides all sorts of insight regarding the victim's functioning, and the spousal abuse cases I get in the large majority, their affidavits of support, either from individuals that are aware of the abuse directly or from individuals who are aware of the consequences of the abuse, psychologically and otherwise.

  In other words, the damage that has occurred, and that's what I want to look at now. I've talked about this, but I have a few slides summarizing this because it's just so important. It's crucial to understand that a victim who has suffered from this kind of complex trauma, they are neurologically and cognitively damaged. They feel often confused, they're anxious, they're hypervigilant, they're always looking over their shoulder, they never feel stable, they're always overreacting, their brain is always firing, they always feel distress and pain, they feel there's no exit, they feel there's no hope.

  There's a overwhelming sense of helpless, despair and psychological hopelessness. They may overreact to things. Their memory may be very harmed, including the short term and long term. Their ability to process information that is cognitively may be very harmed. How they understand themselves, their sense of judgment and so on, their sense of self worth, all of these things may be very harmed, including their ability to make decisions, plan their insight and judgment. Why? Again, this is neurological and cognitive damage as victims of harm within the home or within the relationship.

  There are also emotional consequences. Obviously, this is very much tied to these neurological and cognitive harm, but the person feels a chronic sense of shame and humiliation. They're just very disappointed with themselves for having become involved with a violent person. These persons often have their hopes and dreams easily undermined. Their sense of outlook in life is completely negative and dark. They are often unable to access normal coping mechanisms to deal with their pain. They're unable to process fight or flight responses, and as a result, often experience panic-like symptoms on a regular basis. They may feel very incompetent and worthless and useless and stupid and inadequate.

  Again, they may judge themselves very harshly for wondering why in the world they ever got themselves into a relationship with an abusive person. What happens is they don't trust their own judgment anymore. Many people in these situations don't go into any other further relationships. In other words, they think, "Well, if I made such a bad relationship getting to this abusive relationship, I shouldn't judge my own confidence at any rate going forward." Many of these people stay single for not months, for years and years and years, or sometimes permanently after leaving their abuser.

  There's just this existential sense of harm that these victims have suffered. They have a feeling that life just doesn't make any sense, that life is fundamentally unfair and that existence is basically tied up with hopelessness. This, of course, is not true, but it's important to understand that these are fundamental outlooks that people adopt. It's important to also understand that we make decisions not on rationality, but emotionality. This is hugely important to understand. There's a whole school thought called rational actor model. It's huge in political science, international relations.

  Richard Posner, the famous judge from the Ninth Circuit and professor advocates for this. We make decisions not based on rationality. We make decisions based on emotions. We make decisions based on feelings. That's how we make decisions. Then we rationalize our decisions later. This is important, in the context of domestic violence, to understand how victims got into the situation and their reactions emotionally and psychologically within context of the harm that they suffer. Many of these clients can lose a sense of empathy. I see this a lot with children that grew up suffering complex trauma, where there's physical, emotional abuse, and these children see prostitution and drugs within their community.

  There's gangs and viciousness and fighting and guns and so on. What happens is some of these kids grow up and they look, for lack of a better word, psychopathic, but they're not. What's happened is their sense of empathy that they would normally develop for themselves and for others has been eroded or could not properly develop during earlier phases of life. That happens with victims of spousal abuse and domestic violence as well. Their sense of empathy is very weak and they at times look psychopathic and empty and cold. They're not. They've been harmed so fundamentally that their emotional and cognitive and neurological development as adults within what should have been healthy relationship has been harmed and sometimes permanently damaged.

  I want to switch to the time we have and take a few minutes to look at psychiatric issues. Clearly, the single most important psychiatric issue is post-traumatic stress disorder. Again, it's important to look at post-traumatic stress disorder because these people have been victims in which they've feared for their life, and perhaps there's been direct threats and there's been physical or sexual harm and so on. However, I really want criminal defense lawyers to really think about this in conjunction with complex trauma. Again, complex trauma is something I'm borrowing from children who've suffered harm, but it's the best analogy and it compliments the diagnosis and it compliments the criteria and symptoms that we find in PTSD.

  The other thing about PTSD is it tends to be at times so used because it seems like everybody's being diagnosed with PTSD in our communities today, that it's not taken seriously enough. PTSD is a very, very serious diagnosis and it emanates from very, very serious harm or perceived harm by the individual. That's another reason to compliment it with the literature from complex trauma. Finally, reading about PTSD is very good and how it has manifested itself within these kinds of cases. But the thing about complex trauma and the literature about it is that it'll provide nuances and insights that I don't think you necessarily get with PTSD.

  I want to move on now to depression, because clearly with victims of domestic violence, trauma is the most focused issue. But it's important to understand that victims of trauma also suffer depression, and depression can be devastating. Depression is really something in which there's a fundamental conception, an outlook on life that has been harmed. These are individuals who have everyday depressed moods, subjective feelings of sadness and emptiness, low energy and hedonia which means they can't really derive pleasure from humanity activities in life, low self-esteem, psychomotor retardation, which means they often sleep a lot and don't have the energy to move around.

  They feel worthless about themselves. It affects their appetite. These individuals may be suffering from terrible nightmares or even night terrors, and these individuals really have a diminished capacity to think through situations. Again, while depression is great because it's a good overarching consideration for any victim of harm, the effects of depression can be so devastating that it can have equally negative impact on the victim's ability to lead a normal life. Most clients that have this also have suicidality, and it's not often asked about.

  Suicidality occurs where there's helpless feelings of overwhelming despair and deep psychological helpless pain. You ask a client, and I hope the criminal defense lawyers do, and the client will say, "No, I don't have any plan to hurt myself. I've never tried to hurt myself," and so on. The problem is that's only half the question. Active suicidality is in fact when we make a plan to hurt ourselves, but there's also something called passive suicidality in which the individual has, for example, overwhelming feelings of hopelessness, and they think, "Well, wouldn't it be better if I just sleep and sleep and never wake up so that my psychological pain can vanish?"

  The great thing about suicidality is that you can ask about both concrete and passive suicidality. You can ask about them separately or together, and very often you'd be surprised about passive suicidality where you get positive answers. It reflects, as I said, this overwhelming chasm of despair, and it feeds in to getting more information about symptoms of depression, and I guarantee you it also feeds into getting more symptoms and understanding about post-traumatic stress disorder and complex trauma.

  Perhaps the most well known aspect of mental health considerations for victims of domestic violence is clearly learned helplessness. This is a condition which the person suffers from a sense of powerlessness, arising from a traumatic event or persistent failure to succeed, or someone who is, as I said, with complex trauma experiencing over not just days and weeks, but months and years, different forms of trauma on a regular basis. These individuals feel worthless about themselves, they may have very interestingly excessive or inappropriate guilt. Why?

  Because they blame themselves or they may have a child in the home and they may feel guilty that they're not doing enough to protect that individual. These victims of abuse often feel shame and humiliation as we've talked about repeatedly. But the most important thing is that they feel or objectively they are in a trapped environment in which they can't get out. Very often people ask, "Well, why doesn't a victim just leave?" The reality is they are so shut down emotionally and cognitively by the abuses, and they feel so badly about themselves and they're so tied intimately with their abuser that they feel trapped in a dangerous environment in which there is no escape.

  That's particularly true where there have been ongoing verbal threats against the victim's safety or against their life, or perhaps even against the health or safety or life against relatives of the victim. The next thing is panic attacks. Again, this is not usually asked about, but it's so important. Many victims actually report panic attacks in the form of night terrors, especially late at night. Not only if they have nightmares, but sometimes the darkness or being alone or fearing that they see she shadows bring on panic attacks. Panic attacks can be precipitated by all sorts of things. Panic attacks tend to be very acute and they involve heart palpitation, sweating, trembling, shortness of breath, feeling you're choking.

  You may have nausea, dizziness, unsteadiness. You feel you may have a sense of unreality, and there may be numbness and all sorts of other symptoms associated with it. But the panic attacks, because they're so acute, they tend to be misunderstood. Many clients when they have panic attacks, especially early on, fear, for example, they're having cardiac problems and they go see a heart specialist. But the panic attacks are great to ask about because while so much trauma and depression that the person feels is chronic and ongoing, panic attacks can be very acute and tend to occur over period of minutes or less than an hour.

  It shows that there are both chronic problems that this victim is dealing with, but also on perhaps a daily or weekly basis, panic attacks that really inform this person's fear and anxiety on a fundamental way. Many clients of harm also have somatization or conversion disorders. These are clients who become very preoccupied with a part of their body. For example, clients who insist that they have a gastrointestinal problem, a tummy ache that never seems to go away and they go to their GI doctor and they get perhaps an endoscopy or even a colonoscopy and there's no diagnosis. Well, this is a somatic problem. They become very preoccupied with that part of their body.

  It's a way for their mind psychologically to defend themselves against the abuses that they've had to contend with the psychological issues through somatic issues. If there's a conversion disorder that also needs to be asked about. A conversion disorder is basically a functional neurological symptom. For example, a person that cannot bend their arm back. That is a conversion disorder. Somatization is extremely important and body issues are extremely important, and I always ask clients very generally, "How do you defend yourself against so much anxiety?" I get so really great answers.

  I also ask, "How does your body defend itself?" In many, many cases, I have clients who lose hair, who suffer from skin and acne problems, as I said before GI or tummy problems. But the body reacts in all sorts of ways, including overeating or undereating or eating junk food, which can cause all sorts of problems. Many clients suffer from blood pressure problems. Because of anxiety, their blood pressure goes through the root and remains high at various times and so on. There can be dissociative disorders. This occurs when fight and flight are not available, and the only other option is to psychologically or emotionally remove yourself from this situation.

  This can be very frightening, but it can act as important psychological defense that really reflects the level of seriousness of the abuse that the victim has encountered. Many clients have psychosis, and sometimes lawyers don't want to ask about it, but it's really very important. Many clients, for example, who've suffered abuse for many years, when they go down the street, they'll think they hear their name being called, but nobody's there. They hear, "Mary, Mary, Mary." They think their name is being called. Why? Because these victims of abuse remain constantly hypervigilant, always guarded, always looking over their shoulder for months and even years after leaving their abuser.

  That's a example of a hallucination. Some clients may also become delusional, that is they may become very paranoid and guarded. They don't trust anybody. Why? Because they've been so many years of abuse, to protect themselves, they always have to be hypervigilant. I used to see this a lot for people that have been in jail. They become very hypervigilant, always the looking over their shoulder for safety reasons. Many of these clients present with a kind of ADHD. They're very disorganized, cognitively, in their personal life and so on. Also, many of these clients, quite frankly, turn to drugs and alcohol.

  You've been a victim of abuse. They self-medicate with drugs and alcohol. Unfortunately, some of these issues turn to be quite addictive in nature and sometimes chronic and that should be asked about as well. There are atypical presentations with mental health issues, and those need to be asked about because every person has a particularly idiosyncratic sense of their own depression and trauma. Many of our clients have failed to seek help because of ignorance and shame, or they don't have access to mental health clinics. There may be a stigma associated with mental health issue and psychiatric care may simply be anathema to their cultural background.

  Many of our clients have intellectual disabilities. They may not be educated. They may be illiterate. They may be new immigrants. They may not have the ability to really translate their horrible experiences into a clear narrative, and for this reason as well, we really want litigation and clinical experts to interview them. Many of these clients, as I said before, may underexaggerate, they may overexaggerate what has occurred. Their memories may be poor. Again, for this reason, we want a very clear assessment to really get at specifics and details regarding what has happened. The last part of this, which I will not review but is certainly available is a very long section with the actual questions that I use in my evaluations for victims of domestic violence.

  Well, what I've tried to do today in this hour is provide a holistic understanding about the experiences of domestic violent victims, challenges in these kinds of assessments, and the kind of evaluative considerations that I take into considerations, particularly for mental health issues. Persons who've been accused of defending themselves in the context of intimate terrorism are people who suffer trauma in a way that is almost unspeakable. The place to start with such victims is a very careful understanding about their own experiences and how they possibly survived under such terrible circumstances. Thank you very much, and I hope that this was a helpful CLE today to you.

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