Trauma-informed Lawyering in the Context of Civil Claims for Sexual Violence

Dr Nikki Godden-Rasul, Newcastle University and Dr Clare Wiper, Northumbria University

Introduction

Civil claims for compensation are increasingly being used to expose high profile individuals and institutions for perpetrating and enabling sexual violence, and to provide survivors with financial recognition and redress for harm. Much like the criminal legal system and other adversarial processes, the civil process is designed to question, challenge and undermine testimonies and credibility, which risks re-traumatising survivors (Jay et al. 2019. C1, para 7; MacFarlane 2020). The potential and extent of re-traumatisation or other harm for a survivor will partly depend on whether their lawyer takes a trauma-informed approach – that is, working in ways which recognise and address trauma and its impacts (Campbell 2013, p. 149). However, civil claims for sexual violence is a recently developed (and developing) niche area of practice typically situated within personal injury. We interviewed thirteen UK-based personal injury lawyers from small, medium and large international firms working in this area about their knowledge of sexual violence and trauma, and their experiences and practices representing sexual violence survivors. In this post we set out principles for trauma-informed lawyering in this context, the key findings from our interviews and areas of best practice. For a fuller account, you can read our article, ‘Trauma informed lawyering in the context of civil claims of sexual violence’, which is open access in the Journal of Law and Society (Vol 51, Issue 2, 2024).

Politics and principles of trauma-informed lawyering

While we explore the potential of trauma-informed lawyering for minimising re-traumatisation, taking such an approach to legal work does not guarantee sexual violence and its impacts will be appropriately addressed. Sexual violence has become almost synonymous with trauma which has legitimised some survivors’ experiences but also has constructed a homogenised ‘trauma victim’ modelled on a white European woman (Lamb 1999, p 108; Visser 2015). Trauma talk also risks medicalising sexual violence (Rojas Durazo 2006), focusing on individual suffering and healing which can conflict with and inhibit feminist efforts to theorize, underscore, and address its socio-political underpinnings (Beres et al. 2009, p. 142). Similarly, trauma-informed practices can medicalise and individualise what is a social and political problem, privileging particular survivors, and failing to address the structural underpinnings of sexual violence by focusing only on individual healing. However, these are not necessarily inevitable consequences of taking a trauma-informed approach. Rather, much depends on the key principles which are delineated and how they are translated into practice. We draw out seven key principles from the literature on trauma-informed practices which should be applied in the context of law and sexual violence (see for example, Lambe et al. 2021; Maki et al. 2023; SAMHSA 2014). 

1.      recognising the impact of violence and trauma;

2.      building positive relationships;

3.      ensuring safety, trust and transparency;

4.      minimising re-traumatisation;

5.      promoting empowerment, voice and choice;

6.      attending to cultural, historical and gender dimensions;

7.      minimising vicarious trauma

We analyse the interviews with civil lawyers who have represented sexual violence survivors in relation to these principles to explore their understandings of sexual violence and trauma and how this shapes their working practices, as well as the extent to which the limitations and politics of trauma are recognised and resisted. In our article we structure our discussion by these principles to go into more detail and depth whereas here we highlight some best practice examples as well as key areas for improvement for doing trauma-informed lawyering in the context of sexual violence.

Areas of Best Practice

We were able to identify examples of good practice across all seven principles, but we will draw attention to some of the most significant ones here. First, there was some excellent practice relating to principles two and three: not only did the lawyers acknowledge the importance of patience, restraint from judgement, and drawing respectful boundaries when working with their clients, but they also spoke in detail about the importance of earning their clients trust and ensuring their clients physical, psychological and emotional safety. For instance, several lawyers explained that when working with sexual violence survivors, they always email to arrange a call rather than calling unexpectedly. This is to ensure their client is in a physically safe space and is mentally prepared for the conversation. Secondly, most lawyers, although aware of the risks of re-traumatisation, were not always sure how to minimise it. Nevertheless, there is some good practice taking place in relation to principle four, with most lawyers actively attempting to minimise the number of times a client has to repeat their story of abuse (e.g., by relying on the psychiatrist report instead). Thirdly, the majority of participants recognised that the work did or could have a negative impact on them, but felt there could be more support for vicarious trauma (that is, where a person has not experienced traumatic events or conditions directly but displays symptoms of trauma as a result of engaging with narratives of traumatic experiences of others) – the focus of principle seven. However, we identified several good practice examples in this area, including lawyers who mark relevant files as ‘graphic’ or password protect graphic files in order to prevent accidental or illicit access. Some firms are also investing in specialist training around vicarious trauma from external providers.  

Areas for Improvement

There are a few principles that the lawyers perhaps need more support with. With regards to principle one, the majority of our participants – but not all – showed a good understanding of sexual violence and the gendered power dynamics involved. However, they tended to be less aware of the social, political, and structural dimensions of trauma, often conceptualising trauma at the individual-level (i.e., as a medical problem that can be healed through counselling). This lack of engagement with principle six has implications for the effective implementation of several other principles. For instance, in order to minimise re-traumatisation, as outlined in principle four, lawyers require an understanding of the political dimensions of trauma and its relationship to hierarchical structural relations of gender, race, sexuality, socio-economic status and ability. Without such recognition it might be challenging to support survivors in ways which are empowering if lawyers’ perceptions of justice are restricted to compensation and counselling. Indeed, a few of the lawyers highlighted the difficulties of embedding principal five in practice, especially where clients’ choices about what they want and see as justice go against what the lawyer considers to be the best legal advice (e.g., avoiding trial at all costs). 

For this reason, principle six is arguably the most significant area for making improvements, in terms of strengthening the lawyers’ trauma-informed approaches. Facilitating this, however, is likely to be challenging. As most participants explained, there is a lack of professional training and legal education about trauma-informed approaches to sexual violence cases in the UK, and seven lawyers used the phrase “learning on the job” to denote their lack of access to training and support outside of their immediate team. This highlights (1) a general need for more robust training and education on broader social relations, harms and the situation of trauma within social structures of oppression; and (2) specific training on trauma-informed lawyering for lawyers working on sexual violence cases which does not lose the broader social and political dimensions of trauma.

Concluding comments

To some extent, lawyers representing sexual violence survivors in civil compensation claims are applying aspects of a trauma-informed approach. There is some recognition of the gender dimensions of sexual violence, but little recognition of or resistance to the politics of trauma. While there are some examples of good practice from the lawyers which should be shared, there is a lack of specific knowledge and training, which is needed. However, some of the wider politics and structural relations which underpin and shape trauma and its reponses – such as patriarchy, racism, ableism, and classism for example – could be more greatly embedded in legal education. Indeed, for sexual violence work in particular, training must situate trauma within social structures of oppression: lawyers’ reflective practices must not only consider justice for individual clients – which is an impoverished approach for social and political harms – but recognise the limitations and potential of law and legal processes to empower survivors and to be used for social justice.


Dr Nikki Godden-Rasul

Nikki is a senior lecturer in law at Newcastle University. Her research is in the areas of sexual violence, law and justice; restorative justice, transformative justice and sexual violence; tort law and gender; and gender and legal education. She is Editor-in-Chief of Feminist Legal Studies and co-convenes the Abolition Feminism for Ending Sexual Violence Collective.

Dr Clare Wiper

Clare is a senior lecturer in criminology at Northumbria University. Her research focuses on various forms of gender-based violence, including economic abuse, tech-facilitated violence and coercive control. She sits on the management board of the Gender Violence and Abuse Interdisciplinary Research Theme and chairs the North-East Regional Group of the British Society of Criminology.

References

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