August 28, 2021 – For those who have known betrayal and abuse, it is often a hard-fought battle within one’s own psyche – not to mention the court of public opinion.
As standard practice in American culture, assault victims – predominantly women and children, are routinely disbelieved, ostracized, or both when seeking accountability. Just once in a while, justice is truly served; that is, by judges who are more than marginally aware of the deceitful methods used by sexual assault and abuse predators to lure and entrap their victims. For the rest of those wearing black robes, beguiled by the treachery and deceit employed by abusers – there is no justice. Those with the furtive ability to belie the truth – routinely mask their contempt for it. So why are so many judges fooled? And why so often are those charged with finding the truth – instead, are perpetrating the lie?
Unconscious Bias, Taking a Seat in the Courtroom?
Judge’s are not unlike the lay public, they too have preconceived beliefs about the world, and those in it. Even though it is ethically and morally required to be a neutral arbiter of justice, judges do not automatically shed long held biases at the courtroom door.
The Making of a Judge – the Unconscious Bias They Bring to the Bench
Many judges were defense lawyers before being appointed to the judiciary, tapped by governmental panels and governors to serve the judiciary in state court. A little more than half the states use an appointment process for state court judges, a little less than half have some type of election process.
Because judges are first lawyers, they can come from either being a defense attorney – which comprises a much bigger bar than those prosecuting cases across the country. And because defense attorneys outnumber criminal prosecutors, the judiciary is a repository for many.
As a rule of thumb, which is no means absolute, a defense attorney who becomes a judge, may have represented the worst of the worst, murderers, rapists, and serial killers over their long and often noteworthy career. Because of their work, defending what many in the public may see as defending the indefensible, once appointed, some jurists have the proclivity to transfer their “unconscious bias,” also known as “implicit bias,” to their rulings from behind the bench.
Natural Proclivity Based on Past Experience
A defense-centric viewpoint, can taint not only what the judge allows to be heard in the courtroom, but what motions he will allow, what orders he will make, and what testimony he will hear; and if there is a jury, the judge will determine what evidence will come before it. There will be multiple exclusions and limitations on evidence heard in the courtroom: whether prior instances of bad conduct of a party, or motions to exclude or eliminate evidence – including evidence necessary to fully and fairly come to a just conclusion.
Without a doubt, there is a natural proclivity for those who become judges – to unconsciously align their viewpoints to their prior cases and positions, such as being a protector or defender of the accused. However, when such an unconscious alignment occurs between jurist and defense, an “implicit bias” has taken place. Not only does this unconscious alignment create a palpable bias against the victim/accuser, it places the jurist in the position of an “unconscious” enabler – advocate for the defendant. This phenomenon can transfer from the defense attorney’s office to the courtroom, all without a conscious thought or evil motive to point the blame. It can also work in reverse, where a former prosecutor is elevated to judgeship, becoming a silent advocate for the victim – yet, such the number elevated to judgeships from the prosecutorial bar, is far fewer than those from the defense.
DARVO in the Courtroom
In a recent interview, psychologist and researcher, Dr. Jennifer J. Freyd, provides guidance on a number of strategies that perpetrators of crimes use against their victims, and one often used in their legal defense is DARVO (deny, attack, reverse-victim offender roles). This role-reversal technique has been used by assailants and their attorneys – many times successfully – to cast the victim in a bad light, proposing the victim was asking for trouble, engaged in consensual behavior, or at worst, claiming the victim attacked them, and they acted in self-defense or in defense of others. Some have even fabricated their defense to include protecting a minor child who wasn’t there at the time of the altercation or was not in danger.
So many offenders have used this strategy, even those who tower over, or vastly outweigh their chosen victims – whether woman or child. In civil cases where the aggressor has become violent and has taken financial advantage of a victim, these offenders, have been known to use their courtroom charm and guile to assert “they are the true victims,” despite benefiting monetarily over those they victimized. Many judges have fallen prey to this technique, where the wrongdoer asserts righteous behavior – the judge buying into the fabrication of events, the false narrative, thereby allowing the jury to do the same.
Why Would a Seemingly Illogical Defense be Successful?
There are a number of factors that are used in defense of the indefensible. “Bystander Betrayal” is a key concept identified by Dr. Freyd through her research. It occurs when those in a position to know what is actually going on but doesn’t want to see it, want to protect their institution, fear involvement, repercussions and retaliation. Examples include: a co-worker who sees harassing or abusive conduct by a supervisor but looks the other way, priests in the Catholic Church knowing about abuse of children by pedophile priests and doing nothing to stop it, it even includes those in the hierarchy of the Catholic Church “institution” itself – looking the other way and denying its occurrence.
This “willful blindness“ is soul-crushing to the abused, and is the ultimate betrayal to any victim.
The worst bystander betrayal is by those who have a position of trust, who have a duty to protect, such as: a parent, a family member, teacher, clergy, employer and police. Sometimes these “bystanders” fail to testify for the victim, and instead testify on behalf of the abuser. Not only is this an immoral act, it can create a catastrophic series of events for the victim, putting them in further peril and increased risk of injury or death.
Time and again, abuse cases are decided on minimization and suppression – when people diminish the impact of the abuse – or even testify that it didn’t happen.
If it Was so Bad, Why Didn’t You Leave?
Many court ruling often repeat the learned fallacy that people can just “walk out” and leave an abusive relationship – when much more needs to take place before that can occur. An entire series of events must take place: financial, housing, childcare, even pet placement must occur before a victim can walk out that door. Because many abusers retaliate against those who leave them, a series of planned and sequential steps must be taken, else a child could be abducted, a victim killed or held hostage, or a family pet tortured or killed.
Any judge or jury that takes the position of victim-blaming, fails to recognize the true depth of victimization, the paralyzing fear instilled in victims by their persecutors, and abuser’s ability to exert coercive control over their target victim, controlling and monitoring every aspect of a victim’s life – financial, emotional and physical. And if there are children, there will no doubt be greater coercive control over the victim, including stalking, intimidating, monitoring – even kidnapping. To date, only a handful of states are poised to legislate that coercive control as part of domestic violence and abuse.
The Questions Judges and Juries Should be Asking:
Who put the bruises on this woman or child? Have there been any reports to police or others over the years? Was there a restraining order? Why would a family member, an aunt, cousin or friend, defend an abuser or deny it happened? Why is the alleged victim so afraid to testify against the “alleged” abuser? Why are so many “potential” bystanders afraid to testify on behalf of the victim? Who benefits from the ensuing abuse or estrangement?
Whether it be the Catholic Church hiding abusive priests, moving them from parish to parish, abusive partners using the system to thwart their accuser, or businesses who allow employees to harass and malign with impunity – institutional bias runs rampart in American society.
To learn more about Institutional Betrayal, Clergy Abuse of Children, and “Betrayal Trauma” watch The Legal Edition interview with Attorney Mitchell Garabedian discussing litigation with the Catholic Church – crimes against children and the institutional coverup: Clandestine Clergy: Politics & Policies in the Catholic Church.
To Learn More About Institutional Betrayal, Betrayal Trauma and Institutional Courage…
Watch: Blind to Betrayal: Breaking the Silence of Trauma & Abuse, with author, educator, researcher on betrayal trauma and abuse, Dr. Jennifer J. Freyd.
Guest Bio: Dr. Freyd is the author of numerous books on the psychology of trauma and abuse on victims and survivors, including: Blind to Betrayal: Why We Fooled Ourselves – We Aren’t Being Fooled. She is Professor Emerit at the University of Oregon, and Editor of the Journal of Trauma & Dissociation, Affiliated Faculty of the Women’s Leadership Lab at Stanford University, and Founder and President of the Center for Institutional Courage.
Attorney Mary Kay Elloian is a legal expert on trauma and abuse inside and outside the courtroom, as well as a survivor.
For more information on her upcoming book – ‘No Honor, Your Honor – A Survivor’s Account of Abuse, Trauma & Revictimization In & Outside the Courtroom,’ by family, the legal system, and the church
…will be available shortly.
© Copyright 2021, Mary Kay Elloian, Esq. All Rights Reserved.
See The Legal Edition programming:
Trauma and Abuse in Domestic Violence, Sexual Assault, Recent Judgments & #MeToo,
and
Clandestine Clergy – Sexual Abuse in the Catholic Church & Trusted Institutions
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