Feeling is Understanding - A Phenomenological Inquiry envisaging the emotional experience of rape victims in court processes using the lens of ...
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Feeling is Understanding A Phenomenological Inquiry envisaging the emotional experience of rape victims in court processes using the lens of court observers’ emotional resonances BACK TO CONTENTS 1
Contents
Abstract 05
Introduction 07
The Public Moral Narrative 09
Accessing the emotional narrative
through the ‘mirror neuron system’ 14
The Emerging Emotional Narrative 17
Re-traumatisation wears many faces
through the Lens of the Mirror Neuron System 23
Conclusion
Insight alone seldom leads to change 25
References 27
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 3Abstract
Many victims of crime experience significant trauma. However, it has been
suggested that one reason they can be reluctant to go to court is their
vulnerability to being re-traumatised by the very process through which
they seek justice. This can be a particular risk for victims of sexual crimes.
This phenomenological study offers a glimpse of the human face of re-
traumatisation. Through the lens of the Victim Support NI court observers’
experiences of witnessing a series of sexual offences trials we look underneath
the verbal narrative of court exchanges to their sometimes hidden emotional
component, what we describe as the emotional narrative. In doing this we
enhance the insights gained from what observers see in the room by adding
something of what they feel. Additionally, since the emotional narrative is
profoundly influenced by mindsets within and outside the court room, we
consider the contribution public moral narratives might make to the risk of
re-traumatisation. Insight alone rarely leads to change, witnessed by the lack
of action on previous recommendations (e.g. Gillen Review 2019). Our hope
is that adding feeling to insight and acknowledging the contribution we all
make, through public moral narratives, might nudge the justice system closer
to the change that those who risk re-traumatisation deserve.
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 5Introduction
In 2018, Victim Support NI established a Court Observer Panel to watch sexual
offences trials across Northern Irish Crown Courts and report observations
and findings. The Panel was based on an earlier study commissioned by
the Northumbria Police and Crime Commissioners (NPCC)[1]. Both reports
acknowledged that for those seeking justice for sexual harm via the courts,
the process can be unsatisfactory and even do further harm. Indeed, sexual
offences complainants run significant risk of being re-victimised.
Observers in the Northern Irish Panel attended 27 rape and sexual
offences trials, with analysis of their observations leading to a number of
recommendations for change (Bearing Witness, Victim Support NI 2021).
Many of the findings and recommendations mirrored the experiences of the
Northumbria Panel.
This phenomenological study of court observer experiences was designed to
run alongside the findings of the Bearing Witness Report by adding access to
some of the emotional narratives at work in the courtroom. These emotional
narratives are constructed internally, from the immediacy of the personal
experience in the court, and externally, by the public moral narratives of the
time. Many different groups of people are represented in the trial process,
each with their own particular lens on events: the complainant; defendant;
police; journalists; general public; barristers and solicitors; judge; juries;
families; security services and witnesses. Each has their own starting point
that filters what is seen and heard. While the Bearing Witness report captures
the court observers’ experiences, this study will focus on the nature of the
public moral narratives at play.
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 7The Public Moral Narrative
In his book, Court Number One, Thomas Grant (2019) offers fascinating
insights into some of these filters. It is a Court with its own history of trials
including trials of terrorists, for example those responsible for events on
1 Jeffrey Archer took a Westminster Bridge in 2018. Public figures, such as Jeffrey Archer1, Jeremy
libel case against the Daily Mail
in 1987. In 2001 he was jailed for
Thorpe2, Jonathan Aitken3 and John Stonehouse4, have been among the
4 years when found guilty of lying defendants, along with high profile criminals such as The Kray Twins,
and cheating at the 1987 trial. He
was convicted for perverting the
perpetrators of organised crime, the Yorkshire Ripper Peter Sutcliffe, Dr
course of justice and perjury. Krippen, who murdered his wife and was hanged at Pentonville Prison, and Ian
2 Jeremy Thorpe was
Huntley responsible for the Soham murders. Edith Thompson and Frederick
tried in May 1979 on charges Bywaters were tried for the murder of Thompson’s husband and executed
of conspiracy and incitement to
murder. Thorpe was a liberal MP
at Holloway Prison in 1923 and Ruth Ellis, the last woman to be hanged in
but he lost his seat shortly before Britain, was also tried in Court Number One for the murder of her lover.
the trial. The charges related to
the murder of his lover, Norman
Scott and was a public scandal Grant contends that the trials at Court Number One are instructive in a
at the time. Thorpe was acquitted
but his political career never
number of ways, including the British public’s sensibilities and preoccupations
recovered. at given times. This enables the observer of the Court’s history to trace, ‘at
3 Jonathan Aitken was
least one version of social and moral change over the last century.’ It is in this
tried in 1999 and found guilty sense that one of the narratives at work in a trial can be identified: the moral
of perjury. As a former cabinet
minister, the trial was high profile
narrative of the time. The Thorpe trial amply evidences this. Jeremy Thorpe
and Aitken was forced to resign was alleged to be in a homosexual relationship with Norman Scott. Thorpe
from the Privy Council.
was politically popular, loved by the public, ambitious and well-educated. By
4 John Stonehouse 1974 he had turned the fortunes of the liberal party around from the disaster
was a Labour MP who faked his
own death. He was discovered
of 1970, when only 6 MPs represented them, to 14 MPs in 1974. His popularity
in Australia and on his return as a party leader led to the possibility of Edward Heath offering him a place
he was arrested and taken to
Brixton Prison and then bailed
in a power sharing coalition. The deal fell through with many reasons being
awaiting trial for fraud, theft and offered for the failure. The Independent, in an article written about the TV
forgery. He did not resign as an
MP and appeared in the House
series A Very English Scandal in May 2018, commented:
of Commons while on bail.
Stonehouse conducted his own
defence and was found guilty and
… Thorpe had a past. It wasn’t known to the public, but it was being
imprisoned for 7 years. whispered about in the corridors of Westminster.
That public moral narrative was at play in Court Number One in the trial which
disastrously wrecked Thorpe’s pollical career, despite him being acquitted.
It could be argued, when the defence or prosecution adopt what is often
defined as emotive and provocative lines of questioning, with implications
regarding the moral character of witness or defendant, that they could not
do so effectively if there were not a public moral narrative already at play in
the courtroom allowing those arguments to gain traction, possibly beyond
the facts. Evoking emotion from the jury, observers, journalists and the public,
becomes critical to the outcome of the trial, sometimes despite innocence or
guilt.
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 9Grant also spends some considerable time exploring how the very Honouring the principle of open justice, so significant, cherished and influential
physical layout of Court Number One influences what is heard and seen by in the British legal system, journalists are placed in the press box and
participants. While the court is just four walls and furniture, he suggests there represent the public nature of proceedings. Throughout history, journalists
are connections to people’s lives in other places. The furniture, for example, have provided accounts of proceedings to the public, sketching the dramatis
has an ecclesiastical hint to it and the ‘configuration heavy with meaning and personae and detailing the words of each of the players. However, there is
symbolism.’5 Jonathan Aitken described the court as being like ‘run down 5 Thomas Grand, Court a measure of exclusion for journalists in Court Number One as they too
municipal swimming baths.’6 In supervision conversations, court observers Number One, 2019 (audiobook) occupy seats from where it is difficult to see and hear. They must represent
in the Northern Irish Panel often noted the impact of the size, intimacy and 6 Jonathan Aitken the words of defendants, legal representatives and witnesses alike, catching
accessibility of courtrooms. On some occasions they felt too close to counsel, Officially Secret, 1971, p154 the tragedy and the trauma.
while on others, too near to the family of the complainant to be comfortable
making notes. In some courtrooms they could not hear the evidence being All these, assembled within the Court, bring their own assumptions, hopes
given, which seemed both restrictive to their work and dismissive of the and red lines. All sit within the wider moral story of a nation and its disputes.
intimate details being provided. All come with inquiry and restraint to the traditional British trial as represented
by Court Number One with its rituals, rules and procedures. Its mystery
Grant himself describes the dock in Court Number One as being like an supported by symbolism and furniture, implying that what is happening is
‘impregnable fortress,’7 a room within a room with an internal life of its own. 7 Thomas Grand, Court almost sacred and certainly out of the ordinary. Each will be led through the
The dock can comfortably hold up to ten people. A lonely space for one Number One, 2019 (audiobook) proceedings by legal professionals and each comes with the expectation of
defendant but a place of interaction and relationship for greater numbers. It an outcome felt most intensely when the jury are deliberating.
has its own life, a room within a room. In Court Number One it is accessed
from concealed stairs after the court has filled. Grant describes the defendants In the context of the Northern Ireland Court Observer Panel, the project
as ‘objects of fascination’ representing ‘humanity in extremis.’8 Those in the 8 Thomas Grand, Court has followed the Northumbria format, gathering evidence to feed a
Number One, 2019 (audiobook)
dock, the defendants, are the central focus, eye to eye with the judge. None of broader dataset to inform understanding and shape the challenge that has
the other players in the courtroom look the defendant in the eyes, implying crystallised in Sir John Gillen’s Review of the law and procedures in serious
that the judge is the one person who will able to properly read the defendant. sexual offences in NI. One focus in evidence gathering has been on rape
myths and the role they play in the course of a trial, influencing how evidence
The layout of the courtroom is boundaried by counsel, prosecution and is presented and heard within the court setting. Jurors and others within the
defence gathered together, counsel forming a row opposite the jury. The physical court represent the wider moral story of a society not yet settled
judge is positioned to intervene in exchanges and influence the outcome. In on the matter of rape myths. Myths about who was truly responsible for
Court Number One the jury can only see the profile of the witness in sharp the event, myths about women’s power over men and manipulative ability
contrast to the judge’s direct eyeline. The witness sits to the side, as if not to, with a chosen outfit, tempt a man from his normal self and fall into the
central to proceedings, while the witness box is in a corner between judge and shame of something he did not intend. Myths about ‘no really meaning yes’
jury. The complainant must process across the central vortex to the reach the and ‘alcohol being the real culprit’ persist, as the moral narrative of today’s
box from which to provide evidence, to represent themselves as not only the society has not yet been definitively decided. Sir John recognised the reality
witness but also the victim. How difficult a task that is when the icomplainant of these myths and their potential to derail justice:
is seen only in profile. This resonated with the findings of court observers who,
at supervision, often spoke of the difficulties of hearing what the complainant 9 Gillen Review: Report Rape myths are a trial reality and can often form the basis of aggressive
was saying, the restrained interventions, indeed somehow non-existent into the law and procedures
in serious sexual offences in
cross-examination and may attract the unreasonable thinking of
interventions, they might have expected on the complainant’s behalf. Dodgy Northern Ireland, April 2019, page jurors. Moreover, for all kinds of societal reasons, complainants
technology further interrupted evidence the complainant provided, in stark 88, https://www.justice-ni.gov.uk/
sites/default/files/publications/
often buy into these myths, blaming themselves. I regard them as
contrast to the more immediate evidence of defendants’ physical present in justice/gillen-report-may-2019. potentially a major challenge to the concept of a fair trial. 9
court. Somehow the drama, so central to the experience of the injured party, pdf
placed them to the side they suspected, in the interests of justice. From the people in the court, to the furniture and characters within the bounds
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 11of the room, each trial is not, in the words of Thomas Grant, ‘hermetically 12 Ibid, page 187 sexual offence cases’12 but for now victims often sit slightly to the side.
sealed.’ Each trial, with its stated focus on the facts, begins with narratives Sometimes removed from the court to give evidence from a safe distance
already at work. These narratives are informed by what each individual brings they can be seen but cannot see. An experience that resonates perhaps with
into the room with them and the reactions they have within the room whether the experience that brought them to the witness box in the first place. This is
to the furniture; the layout; the evidence; the barristers interventions that can the seedbed, the context for the experience we have come to use the word
turn the outcome in a different direction; the undermining evidence presented ‘re-traumatised’ to describe.
or by a sharp intervention at just the right time. Sir John is cognisant of the
enormity of the challenge: Sir John glimpsed the emotion during the review process in meetings with
victims and their families and was struck by how often they did not report
… changing public attitudes to these offences is important if we are to what had happened to them. His words at a recent Victim Support NI
lay claim to live in a civilised society, and we need financial allocations conference set out the challenges to the system, not least in relation to how
to the education of young people and society generally about these the emotional narrative, yet to be fully understood, impacts the achieving of
crimes. 10 10 Ibid, Preface, page v justice for which victims thirst:
Emotional narratives at play within the trial process are the focus of this Again and again during this Review I sought the reasons why do they
phenomenological study. The fact that proceedings are not hermetically not report or, once involved, withdraw during the process? I do not
sealed, that juries and barristers, judges, defendants and witnesses bring believe it is a statement of resigned defeat, or complacency much
their own narratives from the wider context of a society cannot be denied, less one of complicity. It is more an acceptance of the fact that the
particularly where there is dispute within the wider public context as there is weaknesses of the system are so prevalent, so deeply embedded,
about rape, sexual assault, responsibility and understandings of consent. The so stifling that to challenge them would be impossible. I found in
degree to which these emotional narratives influence the outcome is a matter them an unsettling combination of deep fear of the system and yet
for discussion but there is no doubt that they will influence how evidence is an unquenchable thirst for justice. Victims coming after them choke
presented, how credibility is built or undermined, how facts are viewed within on the vapours following in their wake and so the cycle of injustice
the wider context of what happened in events that led to people ending up 13 Sir John Gillen, Victim carries on. 13
in court. Support NI Conference Speech,
2019
This is the system into which the court observers inserted themselves and
Something must be said about victims of sexual violence in this context. through the lens of the ‘mirror neuron system’ we used their emotional
Professionals dealing with victims have come to understand how important experience to get possible insights into how re-traumatisation might feel for
it is that they feel believed. They may have been dignified by interview an injured party.
processes, by special arrangements at referral centres and a feeling of privacy
at interview. However, when victims enter the court room and make their way
to the witness box, they are simply witnesses who are yet to be believed. The
implication is that the burden of proof sits on their shoulders, balancing on
their performance. It is little wonder that Sir John identified that:
… the current trial process is too daunting and uncompromising for
complainants and needs radical revision. 11 11 Ibid
Currently complainants do not have their own, separate legal representation, a
measure that would support their interests and provide them more confidence
that they will be believed. Sir John has recommended that ‘publicly funded
legal representation should be granted to all complainants in all serious
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 13Accessing the emotional narrative
through the ‘mirror neuron system’
The verbal narrative is the story, told in words fuelled by the public moral to distinguish these various strands of emotion and attend to self-care where
narrative, that unfolds during the court process. Underneath that verbal necessary.
narrative is the emotional narrative, that is the set of emotions that arise in
participants while they listen to the verbal narrative. This emotional narrative Using Interpretive Phenomenological Analysis, (Smith 2003, Smith et.al.
influences how language is used, and the impact words have on participants. 2009) of the observer reflexive learning journals, we identified emerging
However, directly accessing the emotional narrative of a victim’s experience emotional themes that give a deeper insight into the human experience of
during a trial process, through say a semi-structured interview, might well the rape trial.
simply add to the capacity for the whole experience to re-traumatise. Sir
John notes that phrases such as ‘second rape’ or ‘judicial rape’ have become
powerful descriptors of what complainants have experienced in court. 14 14 Gillen Review: Report
into the law and procedures
Thankfully, contemporary neuroscience provides an alternative access in serious sexual offences in
point, the ‘mirror neuron system’ (Rothschild 2006, Ramachandran, 2012). Northern Ireland, April 2019, page
16
First identified by neuroscientists in Parma, Italy in 1998, the mirror neuron
system is the neural mechanism through which we are hardwired to feel the
emotions of others. For our purposes this means that reflexive awareness and
examination of the emotions experienced by court observers as they observe
the trial process can provide tentative insight into the experiences of victims
themselves.
This phenomenological study sits alongside the Bearing Witness report
presentation of what was ‘observed in the courtroom’ by adding the narrative
of what was ‘felt in the courtroom’.
Engaging in the tradition of action research (Reason & Bradbury 2008)
court observers engaged as co-researchers with us in a participative action
research study, toggling between periods of action (court observations) and
reflection (monthly reflexive supervision conversations). Alongside their
observations of court processes, which contributed to recommendations of
the Bearing Witness report, Observers were invited to notice the ebb and
flow of their own emotions, recording these in reflexive learning journals. The
reflexive supervision conversations provided a safe environment for deeper
reflection on the emerging emotional narrative.
It is recognised that the set of emotions that arose in observers (the emotional
narrative) was woven from at least three sources of emotion. Firstly, the
observers’ own history of emotions throughout life – including experiences
that may be similar to those of the injured party. Secondly, the here-and-now
experience of observers in a particular trial – current life experiences, physical
health etc. And thirdly, those emotions triggered by the mirror neuron system,
that provide an empathic connection to the emotions of others in the court
room. Enhanced emotional intelligence of the observers allows them to begin
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 15The Emerging Emotional Narrative
Seven court observers submitted reflexive learning journals. Of these one
was a verbatim report of the court process while another consisted mostly of
a flow of criticism of the court processes with little exploration of emotional
response. The remaining five journals captured various degrees of emotional
engagement by the observers with events in the court. These five were
analysed using Interpretive Phenomenological Analysis and four overarching
themes emerged.
1. Outsider / Insider
2. Empathy
3. Sympathy
4. Sense of Responsibility
1. Outsider / Insider
In the first theme ‘Outsider / Insider’, observers found themselves toggling
between experiences of feeling included, part the process, while at other
times outsiders to it. There were three sub-themes in this:
1.1. Participant – Observer. Here observers felt at times to be
outside the process.
“Intimidating to be sitting here, particularly alone”. CO1
“Becoming invisible”. CO2
“Felt frustrated being on the side-lines today. Involved but powerless.”
CO4
“Again, even now sitting beside him, I still can’t hear what he’s saying.
Drops his voice low, facing judge…where is her (complainant) voice
in this?” CO1
In contrast, at other times the observers felt like they were included and had a
part to play in the process. However, this was also with a sense of guilt, having
been called into the judge’s chambers, that they had let others down if they
lost neutrality.
“It’s more than observing. You become involved. Presence makes you
a participant.” CO2
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 17“And now I’m part of the ‘inner circle’. I know”. CO2 2. Empathy
“Beginning to feel part of the furniture in court.” CO5 The second theme, ‘Empathy’, was where observers found themselves
emotionally moved by scenes they were witnessing in the courtroom.
1.2. Deliberately Excluded – paranoid anxiety.
2.1. Emotional resonance with the Complainant and court
This sub-theme dropped a little deeper into the sense of exclusion with a
processes.
suspicion that it is a deliberate ploy to disempower.
Observers were at times deeply disturbed by what they were hearing and
“Again, it is very difficult to hear what the barristers are saying…I guess
recognising that this was part of the life story of human beings in the room.
the cynical part of me wonders if that is in some way deliberate…kept
feeling I was missing the intricacies of what was happening.” CO1
“Surprised…angry…two young girls (a few years younger than
myself)…found it really hard / impossible almost to not keep thinking
“Extensive delay with little explanation…wondering how much, if any,
about it when I got home…there were days when I got home and
say she (the complainant) had in the agreement between barristers
started to cry…after a few days things got better mentally but then I
for plea deal.” CO1
got physically sick…” CO3
“…again, it felt wrong…where was the complainant in these
“Naïve…Glad to be doing this but totally taking a toll on my sleep…
discussions…playing the system to prevent the case going to trial.”
unwanted intruding thoughts.” CO5
CO1
“Listening to evidence through emotions of anger…painful…
1.3. Dis-Identifying – Class and Age Difference desensitised… hardened…excited…bored…disengaged…fidgety, pain
in body takes attention…almost impossible to engage.” CO2
Observers noticed the glaring gap of both age and social background
between those who managed the court processes and both complainant “Shock…anger…felt like shouting out.” CO4
and defendant in many cases. This was experienced at times as an arrogant
disregard for those the process was meant to serve. “Frustrated and angry at delay…tired…drained…sad…worried.” CO1
“They (barristers) are much more abusive to women and in particular
2.2. Unpredictability – vulnerability
uneducated women, than they are with male witnesses.” CO5
The intense emotions that were stirred were often coloured by an underlying
“I have heard such blatant comments about the social class of the
anxiety about the unpredictability of, and powerlessness within, the process as
complainant and the defendants by professionals, privately and in
it would take unexpected and disappointing turns. Hopes could be lifted and
court, that it really shocked me.” CO5
dashed within minutes.
“There is definitely a class thing going on here. The court fraternity
“Feeling worried about what she might be put through…and then it
share views on who deserves justice…They are all older than the
doesn’t go ahead…have horrible, sinking feeling that it’s not going to
people they represent.” CO5
go ahead…very frustrating to drive up, park, walk in, to keep finding
our case is not going ahead.” CO2
“Following the swearing-in of the jury and being told that that was
the business for the day I felt a bit let down – the momentum had
commenced and then swiftly ended – had hoped for some
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 19substance.” CO4 4. Sense of Responsibility
3. Sympathy The fourth theme, ‘Sense of Responsibility’, captured times when observers
felt some kind of responsibility for getting things right in their role in order to
In the third theme, ‘Sympathy’, observers noticed how at times they felt for make a difference for others. There was a feeling of needing to do justice not
others in the courtroom as if it could be them. just for the trial they were observing but a weight of responsibility for future
cases. This also extended into an anxiety that the presence of court observers
might militate against the desired changes rather than facilitate them.
3.1. Compassion for the complainant
“Nervous…wanting to do a good job. Want to do a good job observing
At times there was surprise that feelings of sympathy could arise for both the
cases, for future people going through this system.” CO1
complainant and the defendant equally.
“Prosecution barrister smiling, saying ‘the system has failed us all’…
“Thinking about the complainant giving evidence today…knowing it’s
he displays so little care about this case not going ahead…guiltily
going to be traumatic…wondered how she felt not to know if it will go
relieved (at case not going ahead)…lack of care, compassion,
ahead or not…can see complainant looking visibly upset, angry and
sensitivity and communication…is secrecy anything to do with the
frustrated…but my frustration is nothing to how those involved in the
presence of court observers in the room?” CO1
case must be feeling.” CO1
“Importance of knowing what you are here for.” CO1
“I felt great pity for her (the complainant)…found it too painful to
imagine for more than a few seconds how I would feel if that was my
“How seriously wrong can first impressions be. Even when you’re
daughter.” CO4
trying to keep an open mind.” CO4
“I found it heart breaking, the accused sat in the defendant’s box with
his head in his hands and his wife reached for him with her hands
to support him, but she couldn’t reach him. Sexual defendants are
always portrayed as monsters, and for that moment he wasn’t.” CO3
3.2. Compassion for members of wider family circles
At times these feelings of sympathy extended towards members of the wider
families.
“Also thinking of the impact on those who have children away from
home / at university…limited influence therefore worry…life on hold.”
CO2
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 21Re-traumatisation wears many
faces - through the Lens of the
Mirror Neuron System
We have acknowledged that the emotions recorded in the reflexive learning
journals are partly influenced by the court observers own past experience and
how they were feeling on a particular day. Having said that, some aspect of
those feelings can also give us insight into what re-traumatisation feels like
for injured parties as the mirror neuron system gives rise to similar feelings
in the court observers.
The emotional narrative tells us that re-traumatisation wears many faces. As
Observers noticed barristers squabble and scheme, harass and bully, whisper
and conspire, injured parties can pay a high emotional price that manifests in
many ways:
• One face cries into a pillow, alone and later vomits.
• Another face rails against the injustice of a justice system built on
privilege and heavily weighted to the fiscal benefit of those who
control the system.
• Another face feigns indifference, resigned to the powerlessness
so familiar to the victim of rape, passed off as ‘the system has
failed us all’, when clearly there are those whom the system
favours. Some get away with their crime while others have a
vested interest in prolonging the process.
• Another face denies that it has any impact and goes home to
sleepless nights with unwanted intrusive thoughts.
• Another face is wrapped in shame and seeks to hide.
• Another face curls up with guilt at witnessing the impact on the
accused’s family.
• Another face turns away in apology, “It’s all my fault, I wasn’t good
enough”.
It isn’t just the first face that cries trauma.
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 23Conclusion - Insight alone seldom
leads to change
The purpose of a trial is to arrive at cognitive judgements based on facts,
established beyond reasonable doubt, while balancing the effect of factual and
emotional information on jurors. The empathy-complexity theory has drawn
attention to the manner in which the challenges of juror decision making are
compounded when the public moral narrative is fed by emotional publicity
from the court room giving rise to negative feelings towards defendants
(Lieberman, Arndt & Vess. 2009).
Having said that, a courtroom remains a highly charged emotional
environment, with emotions frequently drawn on to influence the assessment
of facts. The Bearing Witness report, and its predecessor Seeing is Believing,
provided insights from observation, that specific actions or inactions within
a trial increase the potential for victims to feel re-traumatised. However,
systems theory reminds us that, due to resistance to change, the insights
of cognitive intelligence alone are seldom sufficient to bring about creative
change within a living system (Senge, 2006). We are not surprised that
the Gillen recommendations have been slow to be acted upon, and that
more radical cultural change has not been meaningfully achieved as
yet. Understanding, and even accepting, the rationale for change may not
provide adequate incentive for the recommendations to fully become reality.
Furthermore, sustained change requires the active and willing participation
of all players in the system (Zokaei, Seddon & O’Donovan, 2011). Drawing on
the emotional intelligence of court observers, feeling the distress of victims,
this phenomenological study drops to a deeper narrative of re-experienced
trauma, highlighting just why the recommendations are so important.
Seeing might well be believing, but perhaps when we feel the cruelty of the
justice system, we might at last understand the injustice of it and cease to
collude. We add the voices of these observers, and by proxy through the
mirror neuron system these victims’ voices, to Gillen’s heartfelt plea to end
this suffering and reform the judicial system, bent on replicating trauma in
the name of a process, that masquerades as the truth and nothing but the
truth. Can we hear the cry to ‘stop’ and accept that no means no even if it is
expressed in silent withdrawal of consent?
‘I believe the arc of the moral universe is long, but it bends towards justice.
The victims of these crimes do not seek special treatment. All they ask for is
the equal treatment that the law has promised them for many many years.’
Sir John Gillen (VSNI Conference 2020).
SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 25References
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SEEING IS BELIEVING - FEELING IS UNDERSTANDING BACK TO CONTENTS 27Feeling is Understanding
A Phenomenological Inquiry envisaging the emotional experience
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