Survivors of major trauma are more likely than most to find themselves having to deal with the law. This might arise, for example, in a criminal prosecution of a perpetrator; a claim for compensation; or an application for refuge, child protection, or an official investigation into a disaster. In all of these settings, there is a judicial spotlight on the validity of the survivor's account of what happened, in particular on the degree to which their emotional state has affected their ability to recall these events accurately.

There are often very different approaches taken by those coming at this problem from legal and psychological backgrounds. Maroney, a US academic lawyer, for example, suggests that the law is historically and structurally reliant on an assumption that rationality, not emotion, is what must be applied, and that emotion can only “muddy the water,” if not cleared away (Maroney, 2011). Although mental health professionals recognise that these emotional aspects cannot be “cleared away,” there remain striking difficulties in demonstrating how to work with these complexities in the furtherance of justice.

This paper will examine and discuss the contribution which research on trauma and related psychological processes can make to two particular areas of law—refugee law and the reporting and prosecution of sexual assault.

These areas of law have two key issues in common: the salience of the trauma experience, and the frequent absence of any objective evidence. For example, in cases of rape—where the issue concerns consent—almost always it is a case of one person's story against another's. Similarly in claims for asylum, someone with a history of detention and torture is unlikely to have any documentation to confirm their account. This means that decisions in both types of case rely heavily on an initial assessment of the credibility of the trauma history (Archambault & Lindsay, 2001; Herlihy & Turner, 2013; Jordan, 2004; Kelly, 2010; Noll, 2005). Key studies have shown how the two issues (trauma and credibility) can interact with undesirable results—setting those with posttraumatic stress disorder (PTSD) and related symptoms at a significant disadvantage. For example, in an analogue study of state decision-making about asylum seekers, Rogers, Fox, and Herlihy (2015) showed how the overlap between the ways in which we think people act when they are lying and the presentation of PTSD can lead to incorrect credibility judgements about some people with PTSD. Similarly, Hardy, Young, and Holmes (2009) demonstrated that women who reported higher peri-traumatic dissociation were more likely to report fragmentation of their memories of rape, and more likely to consider withdrawing their allegations for fear of being disbelieved.

This paper will first examine credibility assessment in decisions about people asking to be recognised as refugees (asylum seekers), highlighting the role that psychological science has to play, looking at decisions about adults, and then briefly noting the particular issues raised by young people seeking asylum.

We will then turn to the area of reporting and prosecuting sexual assault, based on our learning from our work with refugee law, drawing parallels and making recommendations for further research.

Refugee law

In Europe, when making claims for state protection, or asylum, individuals have to convince a state and/or judicial decision maker that they are a person with “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion” (United Nations, 1951). This is a most unusual legal definition carrying at its heart the emotional concept of well-founded fear. Whilst this definition is the basis of international treaty, states are allowed to construct their own procedures for recognising refugees. To guide them, the United Nations High Commissioner for Refugees (UNHCR) produces a (non-binding) handbook. This 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 or her status (the examiner) to assess the validity of any evidence and the credibility of the applicant's statements (UNHCR, 2011).

For many refugees, there is no evidence apart from the account they give and some background knowledge of their country of origin. States that carry out torture or other human rights abuses generally do not publish the fact. Asylum seekers rarely arrive with bundles of documents providing objective evidence of their claims. Typically, the decision has to be based on a combination of an analysis of the facts presented (do they meet this criterion) and, if they do, on the credibility of the applicant (can they be believed).

A study of judicial assumptions in asylum decisions

This reliance on the assessment of credibility makes refugee status determination a particularly interesting area of law for psychological study. Given its life and death significance, it is also extremely important. A recent report on the asylum process in the United Kingdom quoted immigration judges as saying that their task was to rely on “common sense and experience” (Independent Asylum Commission, 2008) to decide the credibility of the people before them, the plausibility of the histories they provide, and the reliability of their testimonies.

In the United Kingdom, immigration judges have to produce a written determination setting out the basis of the claim, the law on which they rely, and then the decisions they reach, that together make up the basis of their final judgement. Herlihy, Gleeson, and Turner (2010) carried out a qualitative investigation of the assumptions made by UK judges in reaching their conclusions. Three major themes emerged. First, judges made assumptions about how (they believe) a credible claimant “would have behaved” in situations of fear or traumatic experience. For example, the account of the husband who “sent [his wife] to this country ahead of anyone in his own family, including his sister, who had been raped” was found to lack credibility. Second, those applying for asylum were judged on their behaviour in following the rules for the application process or in how they presented their evidence in court. For example, of a man alleging persecution on the grounds of his sexuality, from a country where homosexuality is illegal, the judge wrote, “the appellant denies having slept with the sponsor, which the sponsor [a UK citizen] says has occurred” (Herlihy et al., 2010, p. 360). These are questions about the cross-cultural communication in court and how well the “rules of conversation” (Grice, 1975) of the different cultures (of court and appellant) are understood by all individuals involved in the case. Third, assumptions about how the judges determined what was a truthful account emerged. This is where consistency in details reported on repeated questioning, early disclosure of all material facts (for example the assumption that rape survivors are able to disclose this experience to an official at first interview), and other lay assumptions about the nature of memory and disclosure were used to reach conclusions about the case.

What this study did was to open up these assumptions to definition and therefore to empirical investigation. Indeed in relation to some assumptions, for example, those concerning the nature of memory, there is already an extensive knowledge base (see Herlihy, Jobson, & Turner, 2012 for a review). Lay assumptions in the face of such scientific evidence may be completely unnecessary—but only if the understanding of memory is presented in a form accessible to these decision-makers. In other cases, clarifying assumptions in decision-making about adults seeking asylum has paved the way for their specific investigation—by psychologists (e.g., investigating memory for normal and traumatic events in adults), anthropologists, and sociolinguists.

Assumptions in the asylum process about memory in adults

Seeking contradictions in an account of persecution given on different occasions was the most common “rule of thumb” identified in a study by Granhag et al. of members of the Swedish Migration Board (2005). However, for this to be a helpful discriminator of truthfulness and fabrication, it would also be essential that the survivor of trauma is always able to provide a clear and consistent narrative. This is one assumption that has been tested empirically (Herlihy, Scragg, & Turner, 2002) in programme refugees (who have not had to go through the asylum application process and for whom there was no motivation to deceive). Not only does this research show that, in line with the general body of research on recall, peripheral details of a traumatic account are more volatile than the central details, it also demonstrates that those with higher scores on a measure of PTSD symptoms and a longer delay between their interviews had more discrepancies in their accounts, suggesting that those who were most traumatised may have been most likely to be disbelieved on this criterion.

Similarly an assumption that a truthful account will also be detailed has been tested in a study showing higher levels of overgeneral memory in people seeking asylum with PTSD and depression (Graham, Herlihy, & Brewin, 2014). Overgeneral memory is particularly associated with depression, which is often poorly addressed in the asylum system (Wilson-Shaw, Pistrang, & Herlihy, 2012).

The assumption that timely and full disclosure of traumatic experiences is unproblematic in the asylum context has also been investigated (Bogner, Brewin, & Herlihy, 2009; Bogner, Herlihy, & Brewin, 2007), showing that, in line with a previous study of PTSD in refugees (Van Velsen, Gorst-Unsworth, & Turner, 1996), difficulty in disclosing material in an asylum interview is associated with PTSD avoidance symptoms, shame, and dissociation, and that these are higher in those with a history of sexual violence.

This emerging body of work therefore directly challenges some of the common assumptions being made about memory by decision-makers in the asylum process. Although fabricated accounts may be inconsistent, there are also often discrepancies in genuine trauma narratives. Some of the mechanisms involved in this finding have now been investigated, and the memory literature has been reviewed with reference to the asylum procedure (Herlihy et al., 2012), informing a United Nations report (UNHCR, 2013) on credibility assessment in European states, which will form the basis of future guidelines.

Of course, we accept that some people do set out to deceive decision-makers in a range of settings. It would be naïve to believe otherwise. Sometimes they may be aided by advice from legal representatives, others who have been through this process, or from the Internet. There is a sizeable literature on detecting deception, mostly aimed at improving police procedures, which has broadly concluded that we are all poor at detecting deception, but professional decision-makers are more confident in their abilities (Vrij, 2004), leading to the recommendation that training should aim to help decision-makers think more critically about their decision-making, increase awareness of the dangers of intuitive influences and “fast thinking” (Kahneman, 2011), and encourage the use of empirical cues (Porter & Ten Brinke, 2009). What we have demonstrated so far in this paper is simply that over-reliance by judges and other decision-makers on factors such as consistency in assessing credibility is similarly naïve and misplaced. The next big challenge is to try and see if it is possible to demonstrate any different patterns of discrepancy in those reporting truthful accounts from those deliberately intending to deceive—for example, does the degree of discrepancy matter; is frankly contradictory change in account more significant than reminiscence (recall of further detail on reflection); or is variability in situationally accessible memory, or sensory-bound representations (S-Reps) really less important than change in verbally accessible memory, or contextualised representations (C-Reps) (Brewin, Gregory, Lipton, & Burgess, 2010)?

Assumptions in the asylum process about young people

The studies described so far all focus on adults seeking asylum. More than 12,000 unaccompanied children seek asylum throughout Europe every year,1 of which the majority are between 13 and 18 years old (Derluyn & Broekaert, 2008). These adolescents also have to show that they have a well-founded fear of persecution, in much the same way as adults. They face additional difficulties—to do with family separation, age assessment, and guardianship whilst they make their claim. An unpublished review by Given-Wilson of the psychological literature pertaining to young people seeking asylum has formed the basis of the UNHCR report The Heart of the Matter (UNHCR, 2014—see in particular Chapter 3). There is reason to believe that the same reliance on unfounded assumptions may apply to decision-making about children. For example, research has shown that adults may overestimate the mental capabilities of a child, particularly those who are more socially distant, for example, from a different culture (Bond, Omar, Mahmoud, & Bonser, 1990). Similarly psychological research examining other areas of law (e.g., concerning child sexual abuse) indicates that adult decision-makers are prone to making erroneous assumptions about a child's memory accuracy or capacity, likelihood to be truthful, and their ability to understand or respond in certain ways (Bruck, Ceci, & Hembrooke, 1998; Vrij, Akehurst, & Kinght, 2006). There is now an urgent need to investigate these matters specifically in relation to the application of refugee law.

Credibility assessment in the prosecution of sexual assault

When a person is sexually assaulted, usually only the people concerned are present. Although there may be forensic evidence of sexual contact, in adults this is often insufficient, as it usually does not address the matter of consent. For this reason, the trauma narrative once again takes on a central role and the credibility of the survivor becomes crucial in the progress of any prosecution. Temkin and Krahé (2008) have argued that in all of the decision-making, from initial reporting to the police, through to courtroom conviction or acquittal, and sentencing, those making decisions are unduly influenced by their attitudes to rape and sexual assault. They 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 rape myths are more likely to make judgements in line with those myths, rather than being driven by the evidence (Temkin & Krahé, 2008; see study 3). There has been much work done to articulate, publicise, and (try to) dispel the “myths of rape” but more is still needed.

Comparing the legal processes of reporting and prosecuting rape, against the descriptive and scientific psychological literature, a number of issues immediately become apparent. First internal consistency across different statements persists as a standard by which credibility is judged (Kelly, 2010). This not only assumes that recalled details of traumatic experiences will remain consistent, but it also assumes that the earliest account is the “true” account. This gives rise to the problematic situation whereby rape survivors who are willing to give evidence in a criminal prosecution are advised not to undergo any form of psychological therapy, in case questions by the therapist might lead the individual to develop a different version of what happened. Of course, this also assumes that if the person does not have therapy, there will be no change to the narrative. A recent pilot study included a woman who changed the date and day of a sexual assault. The researcher discussed the inconsistencies with the participant, who explained that the police record had stated “in the early hours of Tuesday morning,” which she had repeated at the early research interview, close in time to the police procedures, whereas, left to her own reflections, she now thought of it as something that happened as she left her house on a Monday night (Johnson, 2013). Thus (as in asylum seeker studies), reminiscence alone may lead to a change in the trauma narrative. A replication with rape survivors of our study of discrepancies in the accounts of asylum seekers is therefore relevant to one of the assumptions that is common in both areas: that memory for traumatic experiences is coherent and unchanging. Of course, it is not just memory that affects consistency of account in relation to sexual assault; other factors such as shame, fear, and posttraumatic avoidance do so as well. These factors substantially affect both sexes. However, we are also aware that men disclosing sexual assault are known to comprise another notoriously under-researched area (Coxell & King, 2010). Applying our understanding of the perceived (Sable, Danis, Mauzy, & Gallagher 2006) and reported (Easton, Saltzman, & Willis, 2013) barriers to disclosure for men within the asylum process is another area that needs to be pursued.

Conclusion

This short paper sets out some of the current challenges at the interface between emotion and law. Although it may appear a daunting challenge to undertake research in this area, if the topic is broken down into a series of specific questions, it is in fact just like any other field of study. Indeed it is a sign of maturation in the field that such questions are being addressed (Turner, 2013). We founded the Centre for the Study of Emotion and Law as a focal point for the investigation and dissemination of these matters. We believe that justice is best served by finding and publicising the hard evidence on which better decision-making can take place.

Summary

Individuals who have experienced major trauma often encounter the legal system. This may occur in situations such as criminal cases against a perpetrator, seeking compensation, or applying for protection, child welfare, or an investigation into a disaster. In these legal settings, the accuracy of a trauma survivor's account is closely examined, especially how their emotional state might have affected their memory of events.

Legal and psychological professionals often have different views on this issue. Some legal perspectives historically assume that decisions should be based on logic, and that emotions can complicate matters if not removed. However, mental health professionals recognize that emotions cannot be simply removed. There are challenges in showing how to work with these emotional complexities to ensure justice.

This paper will discuss how research on trauma and psychological processes can contribute to two specific legal areas: refugee law and the reporting and prosecution of sexual assault.

These legal areas share two important commonalities: the significance of the trauma experience and the frequent lack of objective evidence. For example, in rape cases where consent is the issue, it often comes down to one person's story against another's. Similarly, asylum seekers who have experienced detention and torture are unlikely to have documents to prove their stories. This means that decisions in both types of cases heavily depend on an initial assessment of the trauma history's believability. Studies have shown that the interaction between trauma and credibility can negatively impact individuals with post-traumatic stress disorder (PTSD) and similar symptoms. For instance, research on asylum seekers found that similarities between behaviors associated with lying and symptoms of PTSD can lead to incorrect judgments about the credibility of individuals with PTSD. Similarly, studies have shown that women who experienced higher levels of dissociation during trauma were more likely to have fragmented memories of rape and consider withdrawing their allegations due to fear of not being believed.

This paper will first examine how credibility is assessed in decisions about individuals seeking refugee status (asylum seekers). It will highlight the role of psychological science, focusing on adult asylum seekers, and then briefly touch on specific issues faced by young people seeking asylum.

Next, the paper will discuss the reporting and prosecution of sexual assault, drawing insights from the work on refugee law and offering recommendations for future research.

Refugee Law

In Europe, individuals applying for state protection, or asylum, must convince a state or judicial decision-maker that they have "a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion." This legal definition is unique because it centers on the emotional concept of "well-founded fear." While this definition is based on international agreements, states can create their own procedures for recognizing refugees. The United Nations High Commissioner for Refugees (UNHCR) provides a non-binding handbook to guide them. This handbook states that "The relevant facts of the individual case will have to be furnished in the first place by the applicant himself." The person responsible for determining their status (the examiner) then assesses the validity of any evidence and the credibility of the applicant's statements.

For many refugees, there is no evidence other than their personal account and general information about their country of origin. Countries that engage in torture or human rights abuses typically do not publicize these actions. Asylum seekers rarely arrive with documents that objectively prove their claims. Therefore, decisions usually depend on analyzing the presented facts to see if they meet the criteria, and if so, on the credibility of the applicant (whether their story can be believed).

A Study of Judicial Assumptions in Asylum Decisions

The reliance on credibility assessment makes refugee status determination a particularly interesting and crucial area for psychological study due to its profound impact on individuals' lives. A recent report on the asylum process in the United Kingdom indicated that immigration judges stated their role was to use "common sense and experience" to evaluate the credibility of applicants, the plausibility of their histories, and the reliability of their testimonies.

In the United Kingdom, immigration judges must write a detailed determination that outlines the claim, the relevant laws, and the decisions reached, forming the basis of their final judgment. A study investigated the assumptions made by UK judges in reaching these conclusions. Three main themes emerged. First, judges made assumptions about how a credible claimant "would have behaved" in frightening or traumatic situations. For example, a husband's account was deemed lacking in credibility because he "sent [his wife] to this country ahead of anyone in his own family, including his sister, who had been raped." Second, asylum applicants were judged based on their adherence to the application rules or how they presented their evidence in court. For instance, a judge questioned a man claiming persecution based on his sexuality, from a country where homosexuality is illegal, noting that "the appellant denies having slept with the sponsor, which the sponsor [a UK citizen] says has occurred." These instances highlight challenges in cross-cultural communication within the court and how well the "rules of conversation" of different cultures are understood by everyone involved. Third, assumptions about how judges determined what constituted a truthful account were identified. This involved using consistency in details reported during repeated questioning, early disclosure of all important facts (such as assuming that rape survivors can immediately disclose their experience to an official), and other common assumptions about memory and disclosure to reach conclusions about the case.

This study helped to define these assumptions, making them available for scientific investigation. For some assumptions, such as those concerning the nature of memory, there is already extensive research. Common assumptions, when faced with scientific evidence, may be unnecessary—but only if the understanding of memory is presented in an understandable way to decision-makers. In other cases, clarifying assumptions in decisions about adult asylum seekers has led to specific investigations by psychologists (e.g., studying memory for normal and traumatic events in adults), anthropologists, and sociolinguists.

Assumptions in the Asylum Process About Memory in Adults

Identifying contradictions in an account of persecution given on different occasions was the most common method used by members of the Swedish Migration Board, according to a study. However, for this to reliably distinguish between truthful and false accounts, it would require that a trauma survivor always provides a clear and consistent story. This assumption has been empirically tested in program refugees (who did not undergo the asylum application process and had no reason to deceive). This research showed that, consistent with general memory research, peripheral details of a traumatic account are more prone to change than central details. It also demonstrated that individuals with higher PTSD symptoms and a longer delay between interviews had more inconsistencies in their accounts. This suggests that the most traumatized individuals might have been more likely to be disbelieved based on this criterion.

Similarly, the assumption that a truthful account will also be detailed has been tested. A study showed higher levels of overly general memory in asylum seekers with PTSD and depression. Overly general memory is particularly linked to depression, which is often inadequately addressed within the asylum system.

The assumption that prompt and complete disclosure of traumatic experiences is straightforward in the asylum context has also been investigated. This research revealed that difficulty in disclosing information during an asylum interview is associated with PTSD avoidance symptoms, shame, and dissociation. These issues are more pronounced in individuals with a history of sexual violence.

This growing body of research directly challenges some common assumptions about memory made by decision-makers in the asylum process. While false accounts may indeed be inconsistent, genuine trauma narratives also often contain discrepancies. Some of the reasons for this have been explored, and memory research has been reviewed in relation to asylum procedures. This work has informed a United Nations report on credibility assessment in European states, which will guide future policies.

It is acknowledged that some individuals attempt to deceive decision-makers in various settings. It would be unrealistic to think otherwise. They may receive help from legal representatives, others who have been through the process, or from the Internet. There is extensive literature on detecting deception, mostly aimed at improving police procedures. This research generally concludes that people are poor at detecting deception, but professional decision-makers are often more confident in their abilities. This leads to the recommendation that training should focus on helping decision-makers think more critically about their judgments, increase awareness of the risks of intuitive influences and "fast thinking," and encourage the use of evidence-based cues. What has been demonstrated so far in this paper is that an over-reliance by judges and other decision-makers on factors like consistency when assessing credibility is similarly simplistic and misguided. The next significant challenge is to determine if different patterns of discrepancies exist between truthful accounts and those deliberately intended to deceive. For example, does the degree of discrepancy matter? Is a direct contradiction more significant than recalling further details upon reflection? Or is variability in memory tied to specific situations or sensory experiences less important than changes in verbally expressed or contextualized memories?

Assumptions in the Asylum Process About Young People

The studies discussed so far focus on adults seeking asylum. Each year, over 12,000 unaccompanied children seek asylum across Europe, with most being between 13 and 18 years old. These adolescents also must demonstrate a well-founded fear of persecution, similar to adults. They face additional challenges related to family separation, age assessment, and guardianship during their application. An unpublished review of psychological literature concerning young asylum seekers has formed the basis of a UNHCR report, "The Heart of the Matter." There is reason to believe that the same reliance on unsupported assumptions may apply to decisions made about children. For instance, research shows that adults may overestimate a child's mental capabilities, especially for children who are socially distant, such as those from a different culture. Similarly, psychological research in other legal areas (e.g., child sexual abuse) indicates that adult decision-makers are prone to making incorrect assumptions about a child's memory accuracy, capacity, likelihood of being truthful, and ability to understand or respond in certain ways. There is an urgent need to investigate these matters specifically in relation to the application of refugee law.

Credibility Assessment in the Prosecution of Sexual Assault

When a sexual assault occurs, usually only the individuals involved are present. While forensic evidence of sexual contact may exist, in adult cases it is often insufficient because it usually does not address the issue of consent. For this reason, the trauma narrative again becomes central, and the credibility of the survivor is crucial for any prosecution to proceed. Researchers have argued that in all stages of decision-making, from the initial police report to courtroom conviction or acquittal and sentencing, decision-makers are unduly influenced by their attitudes toward rape and sexual assault. Data from studies involving law students, barristers, and community participants show that individuals who strongly believe in rape myths are more likely to make judgments consistent with those myths, rather than being guided by evidence. Much effort has been made to clarify, publicize, and challenge "rape myths," but more work is still needed.

Comparing the legal processes of reporting and prosecuting rape with descriptive and scientific psychological literature reveals several immediate issues. First, internal consistency across different statements remains a standard by which credibility is judged. This not only assumes that recalled details of traumatic experiences will remain consistent but also assumes that the earliest account is the "true" account. This creates a problematic situation where rape survivors willing to testify in a criminal prosecution are advised not to undergo any form of psychological therapy. This advice is given in case questions from a therapist might lead the individual to develop a different version of events. Of course, this also assumes that if the person does not have therapy, there will be no change to the narrative. A recent pilot study involved a woman who changed the date and day of a sexual assault. The researcher discussed the inconsistencies with the participant, who explained that the police record had stated "in the early hours of Tuesday morning," which she had repeated in an early research interview, close to the police procedures. However, reflecting on it independently, she now thought of it as something that happened as she left her house on a Monday night. Thus, similar to asylum seeker studies, recollection alone can lead to changes in the trauma narrative. Replicating the study on discrepancies in asylum seekers' accounts with rape survivors is therefore relevant to a common assumption in both areas: that memory for traumatic experiences is coherent and unchanging. Of course, it is not just memory that affects the consistency of an account related to sexual assault; other factors such as shame, fear, and post-traumatic avoidance also play a role. These factors significantly affect both sexes. However, it is also recognized that men disclosing sexual assault represent another notably under-researched area. Applying the understanding of perceived and reported barriers to disclosure for men within the asylum process is another area that needs further exploration.

Conclusion

This brief paper highlights some current challenges at the intersection of emotion and law. While conducting research in this area may seem daunting, if the topic is broken down into specific questions, it becomes similar to any other field of study. Indeed, the fact that such questions are being addressed indicates the field's maturity. The Centre for the Study of Emotion and Law was established as a central point for investigating and sharing these matters. It is believed that justice is best served by discovering and publicizing solid evidence that leads to better decision-making.

Understanding Trauma and the Law

Individuals who have experienced major trauma may encounter legal situations, such as criminal prosecutions, compensation claims, or applications for refuge or child protection. Legal processes often scrutinize a trauma survivor's account of events, particularly how their emotional state might influence their memory.

Legal professionals and mental health professionals often approach this issue differently. The legal system traditionally prioritizes rationality over emotion, viewing emotion as a potential obstacle to truth. However, mental health experts understand that emotions cannot be simply disregarded, and finding ways to integrate these complexities into legal proceedings to achieve justice remains challenging.

This paper will discuss how research on trauma and related psychological processes can inform refugee law and the reporting and prosecution of sexual assault.

Common Issues in Refugee Law and Sexual Assault Cases

These two areas of law share two important characteristics: the significance of the trauma experience and the frequent lack of objective evidence. For example, in rape cases, where consent is the central issue, decisions often depend on one person's account versus another's. Similarly, individuals seeking asylum who have experienced detention or torture are unlikely to have documents to support their claims. Therefore, decisions in both types of cases heavily rely on assessing the credibility of the reported trauma. Studies have shown that the interaction between trauma and credibility can disadvantage those with Post-Traumatic Stress Disorder (PTSD) and related symptoms. For instance, research indicates that the way people present when lying can overlap with PTSD symptoms, leading to inaccurate judgments about credibility. Other research has found that higher levels of dissociation during trauma can lead to fragmented memories of an event, making survivors less likely to report it for fear of being disbelieved.

This paper will first examine credibility assessments in refugee cases, highlighting the role of psychological science in decisions about adults and briefly addressing issues related to young asylum seekers.

Subsequently, the paper will explore the reporting and prosecution of sexual assault, drawing parallels with refugee law and offering recommendations for further research.

Refugee Law

In Europe, individuals seeking state protection or asylum must prove to a decision-maker that they have a "well-founded fear of being persecuted" due to factors like race, religion, or political opinion, as defined by the United Nations. This legal definition uniquely incorporates the emotional concept of "well-founded fear." While this definition is part of an international treaty, individual states establish their own procedures for recognizing refugees. The United Nations High Commissioner for Refugees (UNHCR) provides a non-binding handbook, which states that applicants must initially provide the relevant facts of their case. The examiner then assesses the validity of the evidence and the credibility of the applicant's statements.

For many refugees, their personal account and general knowledge of their country of origin are the only available evidence. Governments that engage in torture or human rights abuses typically do not publicize these actions. Asylum seekers rarely arrive with documents that objectively confirm their claims. Therefore, decisions are usually based on analyzing the presented facts to see if they meet the criteria and, if so, on the applicant's credibility.

Judicial Assumptions in Asylum Decisions

The reliance on credibility assessment makes refugee status determination a crucial area for psychological study, especially given its life-or-death implications. A report on the asylum process in the United Kingdom revealed that immigration judges often rely on "common sense and experience" to determine the credibility of applicants, the plausibility of their histories, and the reliability of their testimonies.

In the United Kingdom, immigration judges must provide a written determination outlining the basis of the claim, the relevant law, and their final judgment. A qualitative study by Herlihy, Gleeson, and Turner (2010) investigated the assumptions made by UK judges. Three main themes emerged. First, judges made assumptions about how a credible claimant "would have behaved" in fearful or traumatic situations. For example, a husband's account of sending his wife ahead of his own family, including a raped sister, was deemed lacking in credibility. Second, asylum applicants were judged on their adherence to application rules or their court behavior. An example includes a judge's comment on a man alleging persecution for his sexuality who denied sleeping with his sponsor, a UK citizen, contradicting the sponsor's statement. These instances highlight challenges in cross-cultural communication in court and how well "rules of conversation" are understood by all parties. Third, assumptions about what constitutes a truthful account were observed. This included expectations of consistency in details across repeated questioning, early disclosure of all important facts (such as the assumption that rape survivors immediately disclose their experience), and other common assumptions about memory and disclosure.

This study defined these assumptions, allowing for empirical investigation. For some assumptions, such as those about the nature of memory, extensive research already exists. Lay assumptions may be unnecessary if scientific understanding of memory is presented in an accessible way to decision-makers. In other cases, clarifying these assumptions in adult asylum cases has opened pathways for specific psychological, anthropological, and sociolinguistic research.

Assumptions About Memory in Adult Asylum Seekers

A study of the Swedish Migration Board members by Granhag et al. (2005) found that seeking contradictions in an account of persecution given on different occasions was the most common "rule of thumb." However, for this to reliably differentiate truth from fabrication, trauma survivors would need to consistently provide clear narratives. This assumption has been empirically tested in program refugees, who did not go through the asylum application process and had no reason to deceive. This research shows that, consistent with general memory research, peripheral details of a traumatic account are more prone to change than central details. The study also revealed that individuals with higher PTSD symptoms and longer delays between interviews showed more discrepancies in their accounts, suggesting that those most traumatized were more likely to be disbelieved based on this criterion.

Similarly, the assumption that a truthful account will be detailed has been challenged by a study showing higher levels of overgeneral memory in asylum seekers with PTSD and depression. Overgeneral memory is often linked to depression, which is frequently overlooked in the asylum system.

The assumption that timely and complete disclosure of traumatic experiences is straightforward in the asylum context has also been investigated. Research indicates that difficulty disclosing information during an asylum interview is linked to PTSD avoidance symptoms, shame, and dissociation, which are more prevalent in individuals with a history of sexual violence.

This growing body of research directly challenges some common assumptions about memory made by decision-makers in the asylum process. While fabricated accounts can be inconsistent, genuine trauma narratives also often contain discrepancies. The mechanisms behind these findings have been investigated, and memory research has been reviewed in relation to asylum procedures, informing a United Nations report on credibility assessment in European states, which will guide future guidelines.

It is acknowledged that some individuals attempt to deceive decision-makers in various settings. This can be aided by legal representatives, others who have undergone the process, or online information. Extensive literature on deception detection, primarily aimed at improving police procedures, generally concludes that people are poor at detecting deception, but professionals are more confident in their abilities. This leads to recommendations for training that encourages critical thinking, awareness of intuitive biases, and the use of empirical cues. The findings presented here demonstrate that over-reliance on factors like consistency by judges and other decision-makers when assessing credibility is similarly flawed. The next challenge is to determine if different patterns of discrepancies exist between truthful and deceptive accounts. For example, researchers might explore if the degree of discrepancy matters, if outright contradictions are more significant than recalling additional details over time, or if variability in sensory-bound memories is less important than changes in verbally accessible memories.

Assumptions About Young People in the Asylum Process

The studies discussed so far primarily focus on adult asylum seekers. Over 12,000 unaccompanied children seek asylum in Europe annually, with most being between 13 and 18 years old. These adolescents must also demonstrate a well-founded fear of persecution, similar to adults, but face additional challenges related to family separation, age assessment, and guardianship during their claim. An unpublished review of psychological literature on young asylum seekers has contributed to the UNHCR report "The Heart of the Matter." It is likely that similar unfounded assumptions influence decisions about children. For example, research indicates that adults may overestimate the mental capabilities of children, especially those from different cultures. Psychological research in other legal areas, such as child sexual abuse, also shows that adult decision-makers can make incorrect assumptions about a child's memory accuracy, truthfulness, and ability to understand or respond in certain ways. There is an urgent need to investigate these issues specifically within the context of refugee law.

Credibility Assessment in Sexual Assault Prosecutions

In cases of sexual assault, usually only the individuals involved are present. While forensic evidence of sexual contact may exist, it is often insufficient in adult cases because it typically does not address consent. Therefore, the trauma narrative becomes central, and the survivor's credibility is crucial for any prosecution. Temkin and Krahé (2008) argue that from initial police reporting to courtroom conviction or acquittal and sentencing, decision-makers are unduly influenced by their attitudes towards rape and sexual assault. Their studies show that individuals who hold strong rape myths are more likely to make judgments aligned with those myths, rather than relying on evidence. While significant effort has been made to identify, publicize, and dispel "rape myths," more work is still needed.

Comparing the legal processes of reporting and prosecuting rape with descriptive and scientific psychological literature reveals several immediate issues. First, internal consistency across different statements remains a standard for judging credibility. This not only assumes that recalled details of traumatic experiences will remain consistent but also that the earliest account is the "true" one. This creates a problematic situation where rape survivors willing to testify are advised against psychological therapy, fearing that therapist questions might lead to a different version of events. This also assumes that without therapy, the narrative will not change. A recent pilot study involved a woman who changed the date and day of a sexual assault. When asked about inconsistencies, she explained that the police record had stated "in the early hours of Tuesday morning," which she repeated in her initial research interview, close to the police procedures. However, upon her own reflection, she now recalled it as something that happened as she left her house on a Monday night. This demonstrates that recollection alone can alter a trauma narrative, similar to findings in asylum seeker studies. A replication of the asylum seeker discrepancies study with rape survivors is therefore relevant to a shared assumption in both areas: that memory for traumatic experiences is coherent and unchanging. Of course, memory is not the only factor affecting account consistency in sexual assault cases; other factors like shame, fear, and post-traumatic avoidance also play a role. These factors significantly affect both men and women. However, it is also recognized that men disclosing sexual assault represent another under-researched area. Applying the understanding of perceived and reported barriers to disclosure for men within the asylum process is another area that requires further investigation.

Conclusion

This paper outlines some current challenges at the intersection of emotion and law. While research in this area may seem daunting, breaking it down into specific questions makes it manageable, similar to any other field of study. Addressing such questions indicates the maturation of this field. The Centre for the Study of Emotion and Law was founded to investigate and disseminate information on these matters. The belief is that justice is best served by identifying and publicizing solid evidence to support better decision-making.

Summary

Individuals who have experienced major trauma often encounter the legal system through criminal cases, compensation claims, or requests for protection. In these situations, the court closely examines the person's story and how their emotional state might affect their memory of events.

Legal and psychological professionals often have different views on this issue. Lawyers tend to focus on logic and believe emotions can confuse the facts. Mental health experts, however, acknowledge that emotions cannot simply be removed. They face challenges in showing how to work with these emotional complexities to achieve fair outcomes.

This document will explore how research on trauma and psychological processes can help in two specific legal areas: refugee law and the reporting and prosecution of sexual assault.

Shared Issues in Law

Both refugee law and sexual assault cases often involve significant trauma and a lack of clear, objective evidence. For example, in rape cases, it often comes down to one person's word against another's, especially regarding consent. Similarly, individuals seeking asylum who have experienced detention or torture usually lack documents to support their claims. This means decisions in both types of cases heavily depend on judging the believability of the trauma story. Studies have shown that the connection between trauma and credibility can lead to unfair results, putting people with PTSD at a disadvantage. For instance, research indicates that the way people present themselves when lying can overlap with how someone with PTSD might appear, leading to incorrect judgments about their honesty.

This paper will first look at how credibility is assessed for asylum seekers, emphasizing the role of psychological science in decisions about adults and briefly touching on issues for young people seeking asylum. Then, it will discuss reporting and prosecuting sexual assault, drawing lessons from refugee law and suggesting areas for future research.

Refugee Law

In Europe, individuals seeking protection or asylum must convince authorities that they have a "well-founded fear of being persecuted" for reasons such as race, religion, or political beliefs. This legal definition itself includes an emotional concept: "well-founded fear." While this definition is international, countries set their own procedures for recognizing refugees. The United Nations High Commissioner for Refugees (UNHCR) provides a guide stating that the applicant must provide the relevant facts. The person reviewing the case then assesses the evidence and the applicant's credibility.

For many refugees, their story is the only evidence available, along with general information about their home country. Countries that commit torture or human rights abuses typically do not publicize these actions. Asylum seekers rarely arrive with documents to prove their claims. Therefore, decisions are usually based on whether the presented facts meet the criteria and how believable the applicant's story is.

Judicial Assumptions in Asylum Decisions

The heavy reliance on assessing credibility makes refugee status determination an important area for psychological study, especially given its life-or-death implications. A report on the UK asylum process noted that immigration judges often use "common sense and experience" to determine credibility, the plausibility of stories, and the reliability of testimonies.

In the UK, immigration judges must provide a written decision explaining the claim, the laws used, and their conclusions. A study by Herlihy, Gleeson, and Turner (2010) examined the assumptions UK judges made. Three main themes emerged: First, judges assumed how a credible claimant "would have behaved" when experiencing fear or trauma. Second, applicants were judged on how they followed application rules or presented evidence in court. Third, judges' ideas about what makes an account truthful influenced their decisions. This included expecting consistency in details, early disclosure of all facts (for example, assuming rape survivors immediately tell officials), and other common beliefs about memory and disclosure.

This study helped define these assumptions, allowing for scientific investigation. For some assumptions, like those about memory, there is already extensive research. Common beliefs may be unnecessary if scientific understanding of memory is made clear to decision-makers. In other cases, clarifying assumptions about adult asylum seekers has led to specific investigations by psychologists, anthropologists, and sociolinguists.

Assumptions About Adult Memory in Asylum Cases

A common "rule of thumb" identified in a study of the Swedish Migration Board was to look for contradictions in accounts of persecution given at different times. However, for this to accurately tell truth from lies, it would require that trauma survivors always provide a clear and consistent story. This assumption has been tested. Research on refugees who did not go through the asylum process and had no reason to lie showed that, like general memory research, minor details of a traumatic story are less stable than central ones. It also showed that those with more PTSD symptoms and a longer time between interviews had more inconsistencies, suggesting that the most traumatized might be disbelieved based on this criterion.

Similarly, the assumption that a truthful account will be detailed has been tested. A study found higher levels of overly general memory in asylum seekers with PTSD and depression. Overly general memory is especially linked to depression, which is often not adequately addressed in the asylum system.

The idea that timely and complete disclosure of traumatic experiences is straightforward in asylum cases has also been investigated. This research shows that difficulty disclosing information during an asylum interview is linked to PTSD avoidance symptoms, shame, and dissociation, which are higher in those with a history of sexual violence.

This growing body of research directly challenges some common assumptions about memory made by decision-makers in the asylum process. While false stories may be inconsistent, genuine trauma narratives often have inconsistencies too. Some reasons for this have been investigated, and memory research has been reviewed in relation to asylum procedures. This work has informed a United Nations report on credibility assessment in European countries, which will guide future policies.

It is acknowledged that some individuals do try to mislead decision-makers. Research on detecting deception, often aimed at improving police procedures, generally concludes that most people are not good at it, but professionals are more confident in their abilities. This suggests that training should help decision-makers think more critically, be aware of intuitive biases, and use evidence-based cues. This paper has shown that relying too heavily on factors like consistency when assessing credibility is naive and misplaced. The next challenge is to see if different patterns of inconsistencies exist between truthful and deceptive accounts. For example, does the degree of inconsistency matter, or are major contradictions more significant than remembering additional details later?

Assumptions About Young People in Asylum Cases

The studies discussed so far focus on adult asylum seekers. Over 12,000 unaccompanied children seek asylum in Europe each year, mostly between 13 and 18 years old. These adolescents must also show a well-founded fear of persecution, similar to adults. They face added challenges related to family separation, age assessment, and guardianship during their claim. An unpublished review of psychological literature on young asylum seekers has contributed to a UNHCR report. There is reason to believe that the same reliance on unsupported assumptions applies to decisions about children. For example, research shows adults may overestimate a child's mental abilities, especially those from different cultures. Psychological research in other legal areas (e.g., child sexual abuse) also indicates that adult decision-makers are prone to making incorrect assumptions about a child's memory accuracy, honesty, and ability to understand or respond in certain ways. There is an urgent need to investigate these issues specifically within refugee law.

Credibility in Sexual Assault Prosecutions

When a sexual assault occurs, usually only the individuals involved are present. While forensic evidence of sexual contact may exist, it is often insufficient for adults as it usually does not address consent. Therefore, the trauma narrative becomes central, and the survivor's credibility is crucial for any prosecution. Researchers have argued that decisions, from initial police reports to courtroom convictions or acquittals and sentencing, are overly influenced by attitudes towards rape and sexual assault. Studies show that people who hold strong beliefs in "rape myths" are more likely to make judgments aligned with those myths rather than focusing on the evidence. Much effort has been made to define, publicize, and try to challenge these myths, but more work is still needed.

Comparing the legal processes for reporting and prosecuting rape with scientific psychological literature reveals several immediate issues. First, internal consistency across different statements remains a standard for judging credibility. This assumes that details of traumatic experiences will remain consistent and that the earliest account is the "true" one. This creates a problem where rape survivors willing to testify are advised against psychological therapy, in case questions from a therapist lead to a different version of events. This also assumes that without therapy, the story will not change. A pilot study included a woman who changed the date and day of a sexual assault. When asked about the inconsistencies, she explained that the police record stated "in the early hours of Tuesday morning," which she had repeated in an early interview. However, on her own reflection, she now believed it happened when she left her house on a Monday night. Thus, simply reflecting on events can lead to changes in a trauma narrative, similar to findings in asylum seeker studies. A replication of the asylum seeker discrepancy study with rape survivors is relevant to the shared assumption that memory for traumatic experiences is consistent and unchanging. Of course, memory is not the only factor affecting consistency in sexual assault accounts; shame, fear, and post-traumatic avoidance also play a role. These factors affect both men and women. However, it is also recognized that men disclosing sexual assault represent an under-researched area. Applying the understanding of perceived and reported barriers to disclosure for men within the asylum process is another area that needs further investigation.

Conclusion

This paper highlights some current challenges at the intersection of emotion and law. While research in this area may seem difficult, breaking it down into specific questions makes it manageable, like any other field of study. The fact that such questions are being addressed shows the field is maturing. The Centre for the Study of Emotion and Law was founded to investigate and share information on these matters. The belief is that justice is best served by finding and publicizing strong evidence to support better decision-making.

Summary

People who have gone through very hard experiences often have to deal with the law. This can happen if someone committed a crime against them, if they are asking for help or money, or if there is an investigation into a big event that hurt them. In all these cases, people want to know if what the person says really happened. They especially want to know if their strong feelings about what happened changed their memory of it.

People who work with the law and people who study feelings often think about this in different ways. Some lawyers might think feelings just get in the way of what is true. But people who study minds know that feelings are a part of what happened and cannot just be ignored. It can be hard to show how these feelings fit into making sure things are fair.

This paper will look at how understanding hard experiences and feelings can help with two kinds of law: laws for people seeking safety in another country, and laws about reporting and solving sexual assault cases.

These two kinds of law have important things in common. Both deal with very hard past events, and often there is no other proof besides what the person says. For example, in cases of sexual assault, it often comes down to one person's story against another's. Also, people who were hurt and locked up in their home country might not have papers to prove what happened. So, in both types of cases, the decision often depends on whether people believe the story of the hard event. Studies have shown that this can be a problem for people with symptoms from very hard experiences, like PTSD. They might be wrongly seen as not telling the truth.

This paper will first look at how people decide if someone seeking safety is telling the truth. It will show how understanding the mind can help, focusing on adults first, and then briefly talking about young people.

Then, the paper will talk about reporting and solving sexual assault cases, using what was learned from laws about people seeking safety. It will point out similar problems and suggest what more research is needed.

Refugee law

In Europe, people who want safety in a new country must show that they are very afraid of being hurt in their home country because of things like their race, religion, or beliefs. This is a special legal rule because it uses the feeling of "well-founded fear." Countries can make their own rules for how to decide who is a refugee. The United Nations gives advice that says the person asking for help must first tell their story. Then, the person deciding their case must figure out if their story is real and if they can be believed.

Many people seeking safety have no proof other than their story and some general facts about their home country. Countries that hurt people usually do not make that public. People seeking safety rarely arrive with papers that prove their claims. So, the decision usually comes down to whether their story fits the rules and if the person telling it is believed.

A study of how judges decide in asylum cases

Because judges have to decide if someone is telling the truth, this area of law is very important for studying how the mind works. It is also very important because it can mean the difference between life and death. A report in the United Kingdom found that judges said they used "common sense and experience" to decide if people were telling the truth, if their stories made sense, and if their memories were reliable.

In the United Kingdom, judges write down why they made their decisions. A study looked at what judges assumed when they made these decisions. Three main things came up. First, judges thought about how they believed a truthful person "would have acted" when they were scared or had a bad experience. For example, a man's story was not believed because he sent his wife to the new country before his sister, who had been hurt. Second, people asking for safety were judged on how they followed the rules or how they told their story in court. For example, a judge did not believe a man who said he was gay and being hurt for it, because he said he had not slept with someone the other person in court said he had. These examples show how differences in culture and how people talk can cause problems in court. Third, judges had ideas about what made a story true. They looked for stories that were the same every time, and if people told all the important facts right away (for example, they thought people who had been hurt should tell officials right away). These common ideas about memory and sharing information were used to decide cases.

This study helped us understand these ideas so they could be studied more closely. For example, we already know a lot about how memory works. If judges understood more about memory, they might not need to rely on their own ideas. In other cases, understanding these ideas in decisions about adults seeking safety has helped experts study them more.

What judges think about memory in adults seeking asylum

A study found that judges often looked for differences in a person's story given at different times to see if they were lying. But for this to work, a person who has had a very bad experience would always have to tell a clear and consistent story. This idea was tested. It showed that small details of a story about a bad event change more than the main parts. Also, people with more signs of PTSD and more time between when they were asked to tell their story had more differences in their accounts. This means that people who were hurt the most might be the most likely to be disbelieved.

Another idea is that a true story will always have many details. But a study showed that people seeking safety with PTSD and sadness often remember things in a very general way. This general memory is often linked to sadness, which is not always well understood in the asylum process.

The idea that it is easy and quick to tell everything about a hard experience has also been studied. It showed that people who had trouble telling their story in an interview often had PTSD symptoms like avoiding talking about it, feeling ashamed, and feeling disconnected. These feelings were stronger in people who had experienced sexual violence.

This new research goes against some common ideas that judges have about memory in asylum cases. While made-up stories might not be the same every time, real stories about hard experiences can also have differences. We are now learning more about why this happens. This information is helping the United Nations write new rules for how to decide if a story is true in Europe.

Of course, some people do try to trick judges. We know this. Sometimes they get help from lawyers, other people, or the internet. There is a lot of research on how to tell if someone is lying. Most of this research says that people are not very good at telling lies. But people who make decisions for their job are more confident that they can. This means that training should help judges think more carefully about their decisions, be aware of when they are just guessing, and use facts to help them decide. What this paper has shown is that it is not good for judges to rely too much on things like if a story is always the same when deciding if someone is telling the truth. The next big step is to try and see if there are different ways that real stories change compared to made-up stories. For example, does how much a story changes matter? Is it worse if a story completely changes than if someone just remembers more details later?

What judges think about young people in the asylum process

The studies talked about so far are mostly about adults seeking safety. Every year, more than 12,000 children travel alone to Europe to ask for safety. Most of these children are between 13 and 18 years old. These young people also have to show that they are very afraid of being hurt, just like adults. They have extra problems, like being separated from their family, figuring out how old they are, and having someone to care for them while they ask for safety. A report from the United Nations looked at how what we know about young people's minds applies to those seeking safety. It seems that judges might also rely on wrong ideas when making decisions about children. For example, research shows that adults might think children are smarter than they are, especially children from different cultures. Other research shows that adults often make mistakes about how well children remember things, if they are telling the truth, or if they can understand or respond in certain ways. We urgently need to study these things specifically for children asking for safety.

Deciding if a sexual assault story is true in court

When someone is sexually assaulted, usually only the people involved are there. Sometimes there is proof that sexual contact happened, but for adults, this often does not show if the person agreed or not. So, the story of what happened is very important, and whether the person is believed is key to whether the case goes forward. Studies have shown that judges and other decision-makers are too often influenced by their own ideas about sexual assault. They might make decisions based on wrong ideas instead of just the facts. A lot of work has been done to show and try to stop these wrong ideas about sexual assault, but more work is still needed.

When we compare how sexual assault cases are handled by the law with what we know from science about how the mind works, several problems appear right away. First, if a story is always the same in different tellings, it is seen as true. This not only assumes that details of hard experiences stay the same, but it also assumes that the very first story is the "true" one. This leads to a problem where people who have been sexually assaulted and want to go to court are told not to get any help from a therapist. This is because talking to a therapist might make them remember things differently. Of course, this also assumes that if they do not get therapy, their story will not change. A recent small study included a woman who changed the day and date of a sexual assault. The researcher talked to her about the differences, and she said that the police record had said "early Tuesday morning," which she repeated in her first interview. But when she thought about it herself, she now thought it happened when she left her house on a Monday night. So, just thinking about it more can change a story about a hard event. We need to study if there are similar differences in stories of sexual assault as there are in stories from people seeking safety. This is important because it challenges the idea that memories of hard experiences are clear and never change. Of course, it is not just memory that makes a story change. Other things like shame, fear, and trying to avoid thinking about the hard event also play a role. These things affect both men and women. But we also know that men who talk about sexual assault are a group that has not been studied enough. Applying what we know about why men might not want to talk about hard experiences from the asylum process is another area that needs more study.

Conclusion

This paper talks about some of the current problems where feelings and the law meet. While it might seem like a very hard area to study, if you break it down into smaller questions, it is like any other field of study. It is a good sign that we are now looking at these questions. We started the Centre for the Study of Emotion and Law to focus on studying and sharing this information. We believe that things are most fair when we find and share strong facts that can help people make better decisions.