Suspension of Disbelief? The Challenges of Disclosing and Evaluating Women’s Claims of Sexual Violence in the Asylum and Criminal Justice Contexts

Guest post by Helen Balliot, independent researcher, Sharon Cowan, Senior Lecturer in Criminal Law and Medical Jurisprudence at the University of Edinburgh, and Vanessa E. Munro, Professor of Socio-Legal Studies at the University of Nottingham.

Refugee advocacy and support organisations have long sought to draw attention to the significant proportion of women seeking asylum in the UK who have experienced rape in their country of origin. While a disclosure of rape will not be a determining factor in all women’s asylum applications, it may be relevant to a range of crucial considerations, including the seriousness of the harm suffered and the prospects for safe return ‘home.’ However, there are still gaps in our knowledge and understanding about the ways in which asylum-seeking women’s claims of sexual violence are disclosed, and responded to and evaluated by decision-makers.

From 2009-2012, the research team undertook a study to address these gaps. Funded by the Nuffield Foundation’s ‘Access to Justice Programme,’ we sought to explore the ways in which such claims are disclosed, as well as the obstacles that may prevent their disclosure. Though mindful of the important differences between them, we also explored the extent to which there can be said to be parallels between the criminal justice system and the asylum system in their treatment of rape claims. In particular, we compared experiences relating to obstacles to, and mechanisms for facilitating, rape disclosure, as well expectations relating to ‘normal’ or ‘ideal’ victim responses. In doing so, we were able to examine whether and how issues identified in the criminal justice system as problematic for women rape complainants are compounded in the asylum context by issues of language, translation, and misunderstanding or stereotyping of cultural practices and national and racial identities.

Using a mixed methods approach (with the help of a research assistant we conducted 104 interviews with stakeholders, observation of 48 asylum appeal tribunals, and examination of 12 client case files), we examined three main issues: (1) the ways in which emerging rape narratives are, or are not, engaged with by decision-makers; (2) the ways in which the credibility of such claims (and of women claimants) is assessed; and (3) the ways in which engaging with such narratives can provoke emotional responses in asylum professionals that require careful management.

1. Some of those charged with trying to enable or respond to disclosures of rape in the asylum system are not well attuned to ‘hearing the right gaps;’ that is, there is a lack of understanding of the ways in which gender, culture, language, race, nationality, and other factors, particularly the structures of the asylum system itself, operate to make disclosure of rape difficult for asylum-seeking women. When rape is disclosed, some of the ‘myths’ within the criminal justice system about rape—for example, that late disclosure or a calm demeanour indicate a fabricated claim—spill over into the asylum context, particularly in the views of decision-makers. ‘Good reasons’ (most commonly those associated with the woman’s culture, mental health, language difficulties, or lack of understanding of the asylum process) might excuse a late disclosure, but the way in which such ‘good reasons’ were constructed was often problematic. Culture, for example, was often understood in monolithic, stereotypical, and patronising terms, while the impact of trauma was often only accepted when supported by expert mental health assessments. At the tribunal stage, rape disclosures were at times met by rigorous and inappropriate questioning. More often, however, such claims were marginalised or ignored within the courtroom, sometimes out of appropriate and genuine concern for appellants, but also as a deliberate attempt to remove emotion from the account, so that credibility challenges could be focused on more peripheral issues. As explored below, some professionals may feel embarrassed or uncomfortable questioning on the detail of the rape, or avoid dwelling upon it as a strategy for coping with the emotional challenges of hearing such accounts, but avoidance does deny a women the fullest consideration of her claim.
2. The biggest problem facing asylum-seeking women who allege rape is establishing credibility. Here there are structural problems within the asylum system itself—time constraints, lack of funding, poor working practices—as well as a lack of objective evidence to support claims. Decision-makers see inconsistencies as the biggest hurdle to a credible claim, despite widely available research demonstrating the negative effect of trauma on memory and coherent and consistent narration. But the main issue is what has been referred to as a ‘culture of disbelief.’ Despite the government’s recent denial that such a culture exists (in their response to the Home Affairs Select Committee report on Asylum), a number of Home Office personnel reported to us that they believed that the majority of the asylum claims presented to them were fabricated. However this culture also manifests itself in more subtle ways—in a series of assumptions about what constitutes a credible claim, seemingly without proper understanding of why a woman’s narrative may be inconsistent, delayed, relayed without emotion, etc. A further unanticipated finding was that some of those working in the asylum context are more likely to believe a man’s claim of rape than that of a woman, partly because men’s claims are rarer, but also because while it was widely accepted that it is very difficult for a man to disclose such an experience, women’s claims were seen by some as “an easy allegation to make.”
3. Decision-makers in the asylum system have a very challenging job, in that credibility is extremely difficult to evaluate, and in the process of evaluation they must listen to repeated narratives of trauma and violence. We found that many of them, in an effort to minimise vicarious trauma or burn out, dissociate themselves from their work by one of two methods: detachment, whereby they try to see asylum narratives as just ‘stories,’ and denial, whereby the ‘buck’ for decision-making is passed to another individual or institution (e.g., ‘they can always appeal if I get it wrong’). There is a profound lack of resources for support for those in the asylum system dealing with sexual violence (and trauma more generally); and particularly amongst Immigration Judges, a culture that discourages help-seeking or even the acknowledgment that there is a problem of emotional labour and a risk of vicarious trauma in asylum work. Support may therefore be reluctantly received unless and until the ‘(un)emotional culture’ of organisations is challenged.

This research clearly has policy implications, indicating as it does that the structure of the asylum system, as well as working cultures around decision-making, can have a negative impact on asylum-seeking women whose claim involves a rape allegation.

As a result of this research, and since it is the first of its kind, the Judicial College invited us to train all of the immigration judges across the UK on our findings. We have also been invited to present to the Office of the United Nations High Commissioner for Refugees in London, as well as the European University Institute in Florence, and various other universities nationally and internationally (e.g., in the US, Canada, and Italy), and Asylum Aid also reported on our study in their monthly magazine. Most recently, we presented in London to the Human Rights Consortium at the Institute for Advanced Legal Studies, and the Centre for Criminology in Oxford. The research team produced a Research Briefing Report last year, which was sent to academics, policy makers, support organisations and legal practitioners in the area. Thus we hope that our findings will have an impact not only in the academic realm but can contribute to improving the treatment of women rape survivors who seek asylum in the UK.

For more on the research findings for this project, please see:

• Rape Narratives and Credibility Assessment at the AIT (for project information and publications); and
• 'Second-hand Emotion? Exploring the Contagion and Impact of Trauma and Distress in the Asylum Law Context,' in the Journal of Law and Society, Volume 40, Issue 4, pp. 509-540.

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How to cite this blog post (Harvard style):

Balliot H, Cowan S and V Munro (2014) Suspension of Disbelief? The Challenges of Disclosing and Evaluating Women’s Claims of Sexual Violence in the Asylum and Criminal Justice Contexts. Available at: http://bordercriminologies.law.ox.ac.uk/suspension-of-disbelief/ (Accessed [date]).