Further Learning on Trauma-Informed Investigations of Sexual Assault Allegations

By: Brett A. Sokolow, Esq. TNG Consulting

A recent three-part series “Important Things to Get Right About the Neurobiology of Trauma” released by the organization EVAW-I has interesting implications for training sexual assault investigators. Specifically, the second installment, “Victim Responses During Sexual Assault” seems to turn some previous conventional wisdom about trauma responses to sexual violence on its head.

This revisitation process is inevitable as the research on neurobiology is often extrapolated to sexual assault, but it’s not conducted specifically about sexual assault. It is both unethical and impossible to conduct research
on a person as they are being sexually assaulted, though anecdotal information can be gained from interviews after the fact. As research progresses and different extrapolations become popularized, others fall by the wayside. This is one of the reasons why caution is needed in trying to find certainty in a body of knowledge that is still emerging and being reinterpreted.

Many of those who work in the field of sexual assault investigations have been instructed that victim/survivor reactions to sexual violence are often typified by the responses known as “fight”, “flight”, or “freeze”, characterized as autonomic responses triggered by the defense circuitry of the brain. Fight causes the victim/survivor to resist, flight causes them to flee the situation, or attempt to, and freeze is commonly described as an inability to respond, which depending on the nature, duration, and timing, may be an initial freeze response, or more extensive reactions known as tonic immobility or collapsed immobility.

Now, the authors of the EVAW-I bulletin are reframing this conventional wisdom, stating that, “fight or flight” or even ‘“fight, flight, freeze”’ (or other similarly alliterative phrases) do not accurately reflect the behaviors
of survivors or the neurobiological impacts of stress and trauma on behavior.” Well, that’s big news. We know “fight, flight, freeze” can occur, but how commonly is now up for debate. From an evidentiary perspective, balance is needed. Regardless of how common or uncommon, we know that the presence of “fight, flight, freeze” responses does not prove that sexual victimization occurred, just as we cannot cite the absence of “fight, flight, freeze” as reason to disbelieve a victim/survivor, or conclude that their allegation lacks corroboration.

Next, the authors give us a new buzzword to focus upon: dissociation. They state, “Dissociation is much more common than fighting or fleeing during a sexual assault, and it is also more common than the survival reflexes of tonic or collapsed immobility.” This section of the training bulletin goes without any citation, and begs many questions. Is this data-based? Is it an anecdotal conclusion? What support exists for this proposition? How could or would neurobiologists even study the frequency of dissociation, fight, flight, and freeze, or compare them. They tell us this right on the heels of telling us that prior expert advice that “fight, flight, freeze” was common is not accurate, so any skepticism is fair. Recall as noted above that most of these studies are not done on survivors in the moment, so at best we’re getting descriptions of their experiences after-the-fact. Can freeze (or tonic immobility) be readily distinguished from dissociation by the person being interviewed about their experiences? Can’t dissociation and freeze overlap, thus making assertions of frequency all the more complicated?

We can tell you as professionals who have conducted thousands of sexual assault investigations that dissociation has been described by some of the victims/survivors we have interviewed. We wouldn’t call it common, though it would not be fair to call it rare, either. We also recognize that someone’s assertion of dissociation is not the same as an empirical conclusion that they experienced dissociation, and that we’re not qualified to make such a conclusion. Usually, we hear it in the context of, “I can’t remember that part of what happened – I must have dissociated.” Occasionally, we hear, “I felt like I was out of my body, watching what was being done to me from across the room,” or, “I shut down my brain so as not to acknowledge what was happening to me.”

Of course, there are many reasons for gaps in memory, many of which may overlap. If dissociation is more common than “fight, flight, freeze”, that means anecdotally to us that “fight, flight, freeze” is even rarer, and it’s
also worth considering that when faced with memory gaps, some victims/survivors know to cite dissociation or “fight, flight, freeze” because they lack any other lens for describing their inability to remember. As practitioners, we can’t say that dissociation is cited to us by victims/survivors materially more or less frequently than “fight, flight, freeze.” As a result, practitioners often report their experiences do not reflect the scientific community’s and they are frustrated by the science behind statements like those on dissociation in the EVAW-I bulletin, the variability, and lack of certainty. If we’re looking for tools, what are investigators supposed to do with these shifting sands?

For a professional investigator, is it fair to say that dissociation is not of evidentiary value? It’s fair to say that it should not be, but what do we mean by evidentiary value? We know when conducting an investigation that if there is evidence of dissociation, it could explain a gap in memory. It likely is credibility-neutral for the complainant (it does not prove whether they are lying, or more or less believable), though it fails to offer what may be needed corroborative evidence. This can work against a complainant, but only in the failure to offer evidence that can be weighed on the scale that determines whether there is a preponderance.

But, what happens when an investigator is unskilled and unschooled understanding that dissociation evidence may impact corroboration, but should not impact credibility? If they fail to recognize dissociation or discount it, then it creates a domino effect on credibility, which can have an evidentiary value. So, the key is understanding that the lack of corroboration keeps the evidence on a level playing field. It neither helps nor hurts, it just explains, and if there is a gap in evidence, there
is a gap in evidence, whether caused by trauma, dissociation, not paying attention, etc.

As investigators, we’ll never be able to tell why a memory was not stored or cannot be retrieved. The novice investigator needs to understand not to hold that evidence gap against someone with respect to credibility, as if the absence of the memory makes the complainant less believable. It’s a zero, not a -2 on the evidence scale. For colleges and schools that are addressing sexual assault complaints, this isn’t just a critical skill for investigations, this is also a key hearing officer or decision-maker learning outcome.