The first theme of this collection suggests that emotions are, in some cases, pre-existing, or intrinsic to the cases being heard. In some analyses of legal tradition, the law takes on the role of decision-making in spite of such emotions, laying them aside, as far as is possible. As psychologist and psychiatrist, the authors of this chapter argue that it is neither possible nor desirable to put aside the emotional elements of claimants’ accounts or of decision-makers’ responses. In order to achieve justice, or international protection in the case of refugee decisions, the more important task is to understand the role of emotion, and to take it into account in a full and nuanced understanding of the claim.
This chapter, written by two non-lawyers (a psychologist and a psychiatrist) sets out to examine the role of emotion in relation to the difficult decision-making area of credibility assessment using two case examples—torture survivors seeking asylum in another country (involving Refugee Convention and human rights law) and victims of sexual assault including rape (involving criminal law). Torture survivors present themselves with an account of their experience but often with no physical scars and usually with no documentation of their experiences; yet they have to convince a decision-maker that they are at risk of persecution to gain refugee status. In the same way, the prosecution of rape often has to rely on subjective evidence concerning consent; survivors have to be able to persuade a judge or jury that their account of this experience is truthful, and in particular, since rape is often an act of someone known to the victim,1 that they had not consented. It will be argued that reliance on judicial ‘common sense’2 in these situations is often flawed and may lead to incorrect decisions.
In both examples there is a trauma history (hence a state of disturbed emotion, which may or may not amount to a psychiatric disorder), and in neither is there usually sufficient objective corroboration to determine the legal claim. Torture is typically denied by states that perpetrate it, and survivors do not present with medical or prison records from their country of origin. Similarly in the criminal prosecution of rape, while there may be forensic evidence of sexual activity, the issue of consent often comes down to the credibility of the alleged victim as opposed to that of the alleged perpetrator, a process that has been described as a ‘credibility contest’.3 Refugee law judges in their decision-making are advised to draw on ‘common sense and experience’,4 suggesting that their experience in similar cases is seen to be sufficient to guide their understanding of individual and social behaviour in contexts of mortal danger in different cultural settings across the world. Although there may be a great deal of experience in specialist tribunals and courts, this reliance on ‘common sense’ ignores the potential contribution of specialist scientific knowledge in this process. In some cases, medico-legal reports may be submitted, but in the UK, these are in practice only commissioned by the legal representative of the client,5 subject to available funds, and indeed subject to the availability of legal representation.6 Similarly, in domestic courts, trials of sexual assault often involve a jury, and there is a similar principle that jury members carry ‘common sense’ and that extra ‘expert’ information can only be brought into the court if it is shown to be beyond the knowledge of the average person.7
In both of these areas of law, therefore, the notion of ‘common sense’ has been invoked as a guide for judges and juries to help them make decisions about people’s claims. Psychological science offers a growing body of knowledge on human behaviour relevant to the lives and behaviours of people making these claims before the law, but it is unclear how much of this actually informs many of the decisions being made. In this chapter, after considering some of the relevant legal issues and potential pitfalls, the focus will be on the application of psychological science to these important matters, and to its potential contribution as a means of challenging common myths and assumptions, thus improving the quality of justice.
When an individual flees their home country and enters a country that is a party to the Refugee Convention, they can ask for protection, or ‘asylum’. The receiving state must then decide if the person fits the legal criteria for refugee status, in which case they must be afforded protection and rights.
The definition of refugee status was developed by a group of states that came together after the Second World War and drafted the Convention for the Protection of Refugees.8 It was approved in Geneva in 1951 (hence it is commonly called the ‘Geneva Convention’ on refugees), and it came into force in 1954. In 2015, there were 145 signatories to the Geneva Convention.9 A refugee, as defined in Article 1(2) of the Geneva Convention, is a person who
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
This definition has been broadened in respect of Africa, where the term ‘refugee’ has been extended in Article 1 of the OAU Convention to apply also
to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.
Similarly, the 1984 Cartagena Declaration extended the definition of refugees in the Americas to
persons who have fled their country because their lives, safety, or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.10
The United Nations High Commissioner for Refugees (UNHCR), who has a key role with regard to the implementation of these obligations, emphasises that the process is one of recognition—a person ‘does not become a refugee because of recognition, but is recognised because he is a refugee’.11
No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
This principle applies not only to refugees, but also to asylum seekers whose status has not yet been determined, and those seeking entry at a border.12 Non-refoulement is also prohibited by the Convention against Torture, the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights.13
The European Union Directive 2004/83/EC additionally provides for ‘subsidiary protection’, which is protection for individuals who do not qualify as refugees, but in respect of whom substantial grounds have been shown for believing that they would, if returned to their country of origin, face a real risk of suffering serious harm. Furthermore, Member States of the Council of Europe must consider the case law on Article 3 of the European Convention on Human Rights, which prevents the extradition of a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.14 There are differences in the relief granted to those who qualify under the subsidiary protection or Article 3 but not the Refugee Convention; these vary across the different states of Europe.15 There are also procedural differences in the ways that the different decision-making processes are implemented. In the UK, for example, the Refugee Convention, subsidiary protection and Article 3 are considered concurrently; in other jurisdictions, such as the Republic of Ireland, protection rights under the refugee Convention must be exhausted before the European Convention on Human Rights is considered.16
Refugee receiving states which are signatories to the 1951 Convention relating to the Status of Refugees, while bound to offer protection to persons fitting the definition of a refugee, are free to assess claimants by their own procedures. The UNHCR has issued a number of non-binding documents to guide the task. Thus, paragraph 195 of the UNHCR Handbook states that
The relevant facts of the individual case will have to be furnished in the first place by the applicant himself. It will then be up to the person charged with determining his status (the examiner) to assess the validity of any evidence and the credibility of the applicant’s statements.17
Such statements usually involve a history of persecution, which goes towards establishing their ‘well-founded fear’ of return for one of the five Convention reasons.
Decision-making in most receiving countries has two or more stages, allowing for an initial decision and the possibility of an appeal process. In the UK, the initial decision is taken by a state-employed official, who interviews the claimant,18 reviews any paperwork and either allows the claim or writes a ‘Reasons for Refusal’ letter, addressed to the claimant and signed ‘on behalf of the Secretary of State’. The claimant may then appeal to an independent tribunal, consisting of a single judge, usually with an oral hearing.
As an example of the procedures involved in reporting and prosecuting sexual assault, we shall look at the law as it applies in the UK.19 The prosecution of sexual assault (like reports of torture or other persecution) also necessitates the description of an event often in which only the people concerned were present. In order to initiate a process of prosecution, the survivor of a sexual assault must report the incident to the police. If this is immediately after the assault, an internal and external medical examination will usually be conducted in order to collect forensic evidence, and an initial statement is taken.20 In the UK this is co-ordinated by a Specially Trained Officer (STO), who is trained in sexual offence investigative techniques.21 The full statement of the incident is taken in a subsequent interview, either conducted or attended by the same STO. This interview is video recorded and is intended for use in any eventual court proceedings. In the course of the police investigation, the survivor should be kept up to date with progress, including being informed within 24 hours of any arrest. The survivor may be required to help with photo or video or (less often) live identification procedures. The decision as to whether or not to charge the suspect involves both an examination of the evidence and an assessment of public interest. The survivor may be called for a pre-trial witness interview. The decision to proceed to trial remains under review, for example as new evidence becomes available. The trial may then be conducted in a magistrates’ court, heard by either a District Judge or three non-legally qualified (lay) magistrates, or in the Crown Court, where the legal decisions (such as the admissibility of evidence) are made by the judge, while decisions about facts are made by a jury made up of 12 people selected at random from the public.
In the academic literature authors have distinguished between the credibility of the person, which is matter of their honesty, and genuineness, and the reliability of their account, which refers to a judgement about the accuracy with which they are describing a given event.22 Thus, the evidence of a credible witness may not be reliable.23 In this chapter, we shall continue to use the term ‘credibility’ as this is widely applied, but we recognise that strictly speaking it is usually (and should be) the reliability of the narrative that is under consideration, rather than the credibility of the person.
In the context of refugee status determination, both state and judicial decision-makers have an unusually difficult task. There is often little or no specific corroborating evidence of any sort to add to the history given in support of the claim. The decision-maker may draw on country evidence, that is, reports gathered about current situations in general in the alleged country of origin. Other than this the judgement typically relies on an assessment of the credibility of the claimant and their account. This has to be performed within a highly politicised and media-dominated context of discussions about immigration, human rights and—rightly or wrongly—terrorism and crime.
Similarly in sexual assault cases, although there may be forensic evidence of sexual contact, in relation to adults this is often insufficient, as it usually does not address the central matter of consent.24 For this reason, the narrative and the credibility of the survivor take on a central role. Throughout the whole procedure there are a number of stages where credibility is crucial to the continuation of the process of obtaining justice. For example, the police may decide not to make any further investigation if they decide at the initial report that there is insufficient evidence.25 Alternatively, individuals may themselves withdraw allegations for a variety of different reasons.26 An important study by Hardy showed how this includes complainants’ beliefs that they will not be believed.27 This involved interviewing 22 people who had reported sexual assault within the previous 18 months and asking them to rate their memory for the event in terms of fragmentation and coherence. A questionnaire was used to assess how much the person had dissociated28 at the time of the assault, and finally, the researcher asked the victim how likely it was that he or she would proceed with the case. There were significant positive correlations between peri-traumatic dissociation and self-reported memory fragmentation, between fragmented memory and self-reported account incoherence, and between account incoherence and likelihood of proceeding, leading to the conclusion that people who dissociated at the time of the assault were more likely to report fragmented memories. Moreover, the study concluded that ‘people who provided the police with a more incoherent account of their sexual assault perceived themselves to be less likely to proceed with their legal case’.29
Even where the complaint is pursued, the decision of the prosecution to proceed to trial will also rely heavily on the perceived credibility of the allegation. The judge and/or jury will also have to decide whether to accept the narrative offered by the complainant or the defendant. Survivors of rape, after cross-examination in the courts, often describe a sense in which they feel that they have been on trial rather than the perpetrator, sometimes with tragic consequences.30 Early observational studies of the prosecution of rape highlighted a focus on omissions and discrepancies in the victim/witness’s statements and the way in which the centrality of the issue of consent leads to a focus on his or her credibility. Bohmer and Blumberg state that ‘it is because of the difficulty of legally determining the issue of consent that cross-examination will be so much more harrowing for a rape victim than for a prosecuting witness in another type of criminal case’.31 In order to test this view, Brereton applied a comparative framework to court cases between 1989 and 1991 heard in the Melbourne County Court addressing allegations of physical assault and of rape, investigating the cross-examination in each.32 In a comparison of transcripts he found no differences in the tactics of the defence counsel, such as attacks on the character and credibility of the complainants, questions about drinking and ‘mental stability’, finding inconsistencies, questioning expected behaviour, including prompt reporting of the crime. However, he did find that rape complainants were, on average, questioned for twice as long as complainants in trials for assault33 and in the examples cited, he demonstrated the intimate nature of the questioning, thus allowing him to conclude that the process was likely to be more traumatic for rape complainants. While these studies are now quite old, and reforms have been introduced to the procedures they examined, a more recent observational study in the UK has made similar findings.34 Six trials were observed, and the researcher’s notes were analysed using critical discourse analysis. The themes that emerged from the data were routine delays, the notion of ‘rational’ behaviour, extreme interpretations of ‘beyond reasonable doubt’ and ‘burden of proof’, and winning the case as priority. The interpretation of reasonable doubt as ‘any doubt’ led to a focus on the victim, who, as a result, suffered harsher manipulation tactics and more critical evaluations of their evidence.35
Bohmer and Blumberg also argued that the way in which such victims were examined by the prosecution and defence served to stir up fears, insecurities, embarrassment and irrational guilty feelings.36 We shall show that this is not just a matter of unpleasantness for these complainants, but can have an effect on how they are perceived, potentially unfairly affecting the assessment of their credibility.
As we have seen, common sense, or ‘the knowledge of the average person’,37 is often a misleading guide to judging the validity of an individual’s testimony. In particular, scientific studies establish that common sense ideas about memory are not always accurate or in accordance with the findings of empirical research. For instance a study conducted in Norway38 asked participants a number of fixed-response questions about aspects of memory, for which there are reasonably clear answers in the research literature. The authors concluded that, where people can draw on their own experience of memory phenomena, such as their age at their earliest memory, and where the research literature has confirmed folk psychology, they are accurate in their understanding of memory. However, a significant number of the respondents endorsed notions contrary to research, for example, that memory has a limited ‘storage capacity’ or that children have better or equally good memory abilities as compared with adults.
Further studies have used the same questions with judges in the US39 and Norway,40 concluding that both had limited knowledge of eyewitness memory factors, and that they often harboured beliefs and opinions that were at odds with current scientific knowledge.41 Even psychologists and psychiatrists serving as expert witnesses have been found in some cases to harbour scientifically unproven ideas of human memory on issues such as the memory of small children, repression of adult traumatic memories, and recovered traumatic childhood memories.42 Howe also illustrates this point with case examples of historic sexual abuse, where he shows how memory expertise drawing on the scientific literature would have avoided lengthy and costly prosecutions which then were dismissed at court once the memories claimed were assessed in the light of the scientific literature.43 All of this underlines the importance of keeping up to date with the science.
These studies show that there is a consistent gap between a careful examination of scientific findings and the ‘common sense’ associated with decision-making in court. There is a need to educate and to continue to educate judges, juries and expert witnesses to ensure that fair and just determinations can be made, where necessary based on scientific understanding of memory.
Turning to the particular treatment of allegations of rape, Temkin and Krahé44 have argued that in all of the decision-making process, from initial reporting to the police, through to courtroom conviction or acquittal and sentencing, those making the decisions (police, lawyers, judge or jury) are unduly influenced by their attitudes to rape and sexual assault. They suggest that, rather than turning to research evidence on how people behave during and after sexual violence, decision-makers are informed by widely held (but inaccurate) stereotypes of the typical rape—that it is most likely to be by a stranger, using threat or force, and with active resistance on the part of the victim.45 They also present data from studies of law students, barristers and community participants showing that decisions made by people who score highly on measures of adherence to such ‘rape myths’ are more likely to make judgements about what they believe happened in line with those myths, rather than being driven by the evidence.46
Temkin47 goes on to review how research evidence that counters the stereotypes of rape might be introduced into credibility assessment in rape trials. In the past this has not been very successful,48 and Temkin ties this in to the actual experience in court of a trial that can last many days, the hearing of all the evidence, the opportunity to construct a guiding narrative,49 and the coming to preliminary conclusions.50 She concludes that ‘myth busting is an essential activity that needs to be undertaken within society at large, particularly in schools, as well as in the context of education of the police, barristers, and judges’.51
Turning to the case of refugees, the present authors have taken a different approach to examining the underlying knowledge base of judicial decisions in this context. As we have seen, the law allows those who have been turned down for refugee status to appeal to an immigration judge.52 In order to clarify some of the assumptions that immigration judges rely on in their decision-making in this context, we53 conducted a qualitative study of a series of UK determinations. UK immigration judges are required to produce a written determination, outlining the claim before them, the law on which they rely and the decisions that go to make up the final decision whether to allow or dismiss the appeal. A copy of this written determination is made available to the appellant.54
Three major themes became apparent from this study. First, assumptions were made about how a truthful claimant would have behaved in situations of fear or traumatic experience. Thus, adverse interpretations were made on the basis of how the judge assumed that people should behave; for example, a husband who sent his wife to this country ahead of anyone in his own family, including his sister, who had been raped, was seen to be non-credible. Similarly, in assessing situations outside their personal experience, immigration judges also drew upon their sense of plausibility; thus in one case the judge considered it ‘implausible that a family in fear, on seeing a man throw something over the fence and into their garden … would go to investigate it’.55
Second, assumptions were made about how people behave through the asylum-seeking process. This included basing credibility judgements on whether the appellant applied for asylum immediately upon arrival, as well as the less obvious assumptions that claimants will know and use appropriate language and behaviour in the court. For example, of a man alleging persecution on the grounds of his sexuality, from a country where homosexuality is illegal, the judge wrote that, ‘[t]he appellant denies having slept with the sponsor, which the sponsor [a UK citizen] says has occurred’.56 In another case, the judge apparently drew adverse conclusions from the fact that ‘[n]one of the three witnesses testified about any of the hardships faced by the appellant and her family’.57 Both of these examples assume that the appellant and family or friends understand and have accepted both their role in the court and what they are expected to speak about. This theme also raises questions about cross-cultural communication in the court, and how well the ‘rules of conversation’58 of the different cultures (of court and appellant) are understood by all parties.
The third theme identified was to do with assumptions about the nature of a truthful account. Internal inconsistency in details across repeated questioning, late disclosure of material facts and lay assumptions about memory were all being relied upon to indicate a fabrication of a claim for protection. One judge wrote that:
Given that rape is such a serious thing to happen to any woman, I would have expected a raped person to know when they were raped. This is not the type of event which I would expect a person to forget about or confuse.59
In another case, a judgement that an account was true was based on an assumption about the consistency of memory on the grounds that ‘[He] was able to withstand a cross examination … that lasted for over one hour without any serious discrepancies coming to light’.60
The important issue raised by this study lies not in the individual examples, but in the assumptions on which they are based. We do not argue that it was necessarily inappropriate to draw these conclusions from the evidence in particular cases. We do argue, however, that these matters concerning human behaviour, or intention, or response to situations are all areas of psychological enquiry, some of which have an extensive knowledge base. It is essential that this should be available to decision-makers to inform their judgements and to prevent them mistakenly relying on one of the unfounded assumptions or myths that still abound.
The contention raised by this study, therefore, is in line with previous studies on knowledge of eye-witness testimony and on studies of the reliance on myths in rape trials;61 namely that, in such a crucial area, decisions based on assumptions about people’s behaviour, intentions and motivation should draw on the latest and best available scientific knowledge.
In this part of the chapter we shall see how the current psychological literature can inform our understanding of how people remember and relate past experiences.
One of the most commonly used indicators of credibility in these cases is the consistency of an account over multiple telling.62 This is a long-standing assumption, and one entirely understandable from a lay perspective. Someone who is telling the truth will be able to ‘keep their story straight’; if it keeps changing then this is because there are no ‘underlying facts’.63 However, the relevant literature now shows overwhelmingly that these assumptions are based on a misunderstanding of how memory works. There are different ways of looking at memory, for example memory for facts (semantic memory); memory for experiences (episodic memory); memory for dangerous events (fear memory); and memory for how to do things (procedural memory).64 Autobiographical memory is generally described as the combination of semantic knowledge and episodic memory, giving us a description of events experienced in our lives, and this is the type of memory that is required when reporting persecution in the asylum process or sexual assault for prosecution. Accordingly, this is the area on which we focus here.
Autobiographical memory serves a number of functions.65 First, the recalling and telling of episodes from the past helps us to develop, maintain and nurture social bonds. Second, our personal past is our guide to our behaviour in the present: it gives us examples of key events that helped to develop our moral and emotional responses, and it helps us explain to ourselves and others the decisions we make about life directions. Accordingly, our stories of the past will be updated and developed in the light of new understandings about ourselves and the world. Consequently, our autobiographical memories guide our definition and expression of our own identities and sense of self, and the changing self, maintaining our sense of ‘biographical identity’.66 In the context of experiences that challenge the self, memories can be modified and refined in order to protect, or rebuild this sense of self.
In general, scientific study now demonstrates that autobiographical memory is an exercise of reconstruction, not reproduction, as was once thought. As we have pointed out in our previous research:
Contrary to common lay opinion, research over the last 50 years has provided compelling evidence to suggest that autobiographical remembering is not an exact replaying of an event. This type of memory is a reconstruction of events based on several elements and subject to distortion as well as failure (forgetting or false remembering).67
Thus, we see a chasm of misunderstanding. The legal systems we have examined demand, or expect consistent, detailed, coherent memories in order to establish legal evidence. However as we have seen, human autobiographical memory has developed to be socially interactive, flexible and open to being updated and refined.68
When it comes to more dramatic and potentially distressing events, studies of returning veterans69 and refugees show that people often change their answers to a checklist of events. These are not questions about trivial experiences. In the military studies, for example, there are events such as encountering mines or booby traps, or being shot at. This phenomenon is not yet fully understood—it may be related to changes in the symptoms of post-traumatic stress,70 depression,71 or the form of the questions (more or less specific).72 Unravelling this is likely to be of particular relevance to interviewers in legal procedures.
One very robust finding in the literature shows that, when events are distressing, there is a focusing of attention on the ‘central’ details of the event.73 In one classic experiment,74 participants watched one of two video recordings of a simulated armed bank robbery, at the end of which the robbers ran away past a young boy with a rugby shirt with a number on the back. The recordings were identical for each group, except that in one version, at the end one of the robbers turned and shot the boy in the face, while in the other the robbers merely ran away. The researchers found that the participants who watched the video with the shooting were less likely to be able to recall the number on the boy’s shirt, compared with those who had watched the ‘non-traumatic’ video. This effect has been replicated, and a distinction is now made when talking about disturbing or distressing memories, between the ‘central’ details of a story—that is, what is important to the gist of the narrative or the emotional content of the account—and ‘peripheral’ details, such as the number on a boy’s rugby shirt (before he is shot), or indeed the date of a beating while in detention, or the exact number and dress of people involved in a gang rape. More recent research has shown that memory for both central and peripheral details declines over time, with normal forgetting, but memory for central details declines more slowly.75
Finally, Granhag and others tested the notion of ‘keeping the story straight’, in a context resembling legal interviewing.76 They asked pairs of participants either to make up (as if for an alibi), or to recall having lunch together (the lunch was provided to half of the participants). All of the participants were then individually interrogated twice, using a structured interview. When their accounts were analysed, contrary to the common assumptions about credibility assessment in legal procedures, both liars’ and truth-tellers’ accounts were equally inconsistent over time, in terms of number of repeated themes, omissions and contradictions.77
All of these factors can be aggravated in situations of high emotion. Thus, when Brereton compared the cross-examination of complainants in rape and assault trials, he saw no significant differences in the approach of the cross-examiners, but did end by noting that
[i]t is also probable that being a complainant in a rape trial is frequently a more traumatic experience than being a complainant in an assault trial, because of the intimate nature of the matters which are canvassed in rape trials, the length of time which the complainant must spend in the witness box [on average twice as long as the assault complainants], and the degree of trauma associated with the offence itself.78