27 Oct Documenting Race-Based Traumatic Stress: Implications for Mitigation
Delivered to the
National Association of Criminal Defense Lawyers Conference,
New Orleans, LA.
8.25.22
I am pleased and honored to be here today to share with you my work on racial distress as emotional harm and as factors for mitigation. Over the last several decades I have studied and investigated whether racism and racial discrimination results in emotional and psychological harm as stress and severe stress, meaning does it produce trauma? What I discovered was that encounters with racism can, in fact, result in trauma – what I call race-based traumatic stress (RBTS) a form of psychological impairment from racism.
Much of what I will be talking about today is drawn from my 2020 books: Confronting Racism: Integrating mental health research into legal strategies and reforms, and Measuring the Effects of Racism: Guidelines for the assessment and treatment of Race-Based Traumatic Stress injury, as well as journal publications over the last few decades.
Both books address issues that are at the forefront of current social and political discourse, surrounding racial injustice and systemic racism. It appears that the confluence of the global pandemic; the economic damage it caused; and videos and events of police and citizens killing Black people; have put a spotlight on race and racism in our society. In the two books, we advocate for a greater understanding and use of RBTS as a form of emotional and psychological injury. We argue that racism harms people and we propose ways to seek redress and/or relief, from its harm. We describe the mental and emotional effects caused by racism – by documenting RBTS as racial trauma and we propose legal approaches in civil cases that draw upon personal injury, contract, and discrimination laws for seeking redress.
Racism is defined as, behaviors, practices, laws, beliefs, and policies that are created by the transformation of racial prejudice into individual racism through the use of power directed against inferior racial groups and their members, by dominant racial group members as individuals, institutional members, and leaders, that is reflected, in the culture of the dominant racial group, its policies, procedures, and laws with the support, both intentionally and unintentionally, and participation of the dominant racial-cultural group (Carter, 2007). Racial discrimination is the behavioral manifestation of racism; it can take distinct forms that have both direct and indirect harmful mental health effects. Racism is a stressor, and it affects the mental and physical health of its targets. Our framework for confronting racism includes addressing individual and corporate behavior and proposes remedies and forms of redress for legally actionable racial harassment and racial discrimination.
Social scientists have described the complex set of phenomena that results from race and racism, yet only a few researchers have focused on how to assess, the individual for emotional and psychological harm from racial acts and events. Likewise, legal professionals and social scientists have not offered ways to confront the racism that has been, in my view, consistently effective. To that end, I present and discuss mental health and psychological evidence that has not been employed in the past to document the effects of racism (Carter & Forsyth, 2009; Carter & Pieterse, 2020). Similar to physical health and well-being, mental health is negatively affected by racism whether intentional, negligent, or systemic.
I believe that the assessment of race-related emotional harm will strengthen legal cases by documenting psychological distress and the racial elements associated with a person’s behavior and psychosocial development. I contend that fundamental to understanding racism’s harm is clear and compelling documentation of how it damages people, and I employ methods that assess and illustrate that injury.
Racism is not a practice engaged solely by White supremacists or radical individuals and groups. It is part of our national character and is embedded in our institutions, laws, professions, and traditions. To comprehensively address the race-based structural, organizational, and interpersonal features of our society, I propose mental health approaches that can be applied in civil and criminal cases. Now I describe RBTS.
Race-Based Traumatic Stress
The ideas for the research and theory regarding race-based traumatic stress (RBTS) came about through my involvement as a race and racial discrimination expert in legal cases, that involved bi-racial custody, desegregation, racial harassment in schools, consumer racial profiling, and housing and employment discrimination. More recently, I have applied racial analysis and RBTS to criminal cases, and to mitigation reports for a post-conviction capital case.
It was my involvement in these early cases that led me to investigate whether people are emotionally harmed by racial encounters and racism and if so how. What I discovered was that targets of racially hostile environments experience emotional reactions such as depression, low esteem, self-doubt, psychological distress, and anxiety as well as other symptoms which led to functional impairment.
The psychological and emotional harm targets of racism experience are captured best as stress in the clinical health literature – where stress is defined as person-environment, biopsychosocial interactions, wherein environmental events or stressors are appraised and judged as positive, neutral, or as unwanted and negative. If the judgment is that the stressor is positive or unwanted and negative then some action to cope and adapt is needed. When coping and adaptation fail one experiences more intense stress reactions. Trauma is a distinct form of stress, in that, it is severe stress.
In the mental health, literature Trauma is defined in two ways as Posttraumatic Stress Disorder (PTSD) and as Traumatic Stress. According to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5, 2013), PTSD’s core criteria is:
“exposure to an extreme . . . stressor involving the direct personal experience of an event that involves actual or threatened death or serious injury, or threat to one’s physical integrity . . . that cause fear or helplessness”.
As well as, the specific symptoms such as avoidance, re-experiencing, and arousal.
Traumatic Stress, in contrast, involves as the core criteria or stressor, an experience, that is emotionally painful, sudden, and out of one’s control, that triggers clustered symptoms which include avoidance, arousal, and intrusion, as well as other reactions like anger, depression, and anxiety (see Carlson, 1997; Carter & Forsyth, 2009). The core element of Traumatic Stress is the subjective appraisal or perception that leads to emotional pain or is extremely negative.
In this instance, what makes the event emotionally painful has to do with the psychological meaning of the event to the individual, not the physical consequences of the event. Psychological or emotional pain causes damage to one’s sense of self. If one does not perceive an event as negative it will not produce harm. Another element is that the event occurs suddenly. It is more difficult to adapt to an event that occurs without warning. This is not to say that events that are repeated over time do not produce trauma. An additional element is that the event is seen as uncontrollable. The belief that one has some degree of control over events serves as a form of protection. Trauma is more likely in situations in which one believes that he or she is not able to control the highly noxious event(s).
There are many aspects of racism and racial discrimination at various levels individual, institutional, and cultural that render them, emotionally painful, uncontrollable, and sudden. Researchers (cf, Carlson, 1997) have found that people who experience traumatic stress have reactions that are expressed in multiple ways that is, as physical reactions, in emotions, thoughts, or behavior.
Some of the reactions of traumatic stress are similar to PTSD, such as signs of intrusion or re-experiencing, for example, one might have thoughts or images that “intrude” on daily life. Or one might experience images of the encounter or have difficulty with concentration; and arousal, for instance, one may be anxious or express anger through aggression or hyperactivity. Also, one may experience sleeplessness or startle easily; and avoidance or psychic numbing – one may become distrustful and emotionally detached from people, or become emotionally “numb” losing interest in pleasurable events and activities, one may also deny any connection between their current state and the incident and have some memory loss or is unable to recall the specific elements of the event(s). One may also stay away from the people or the location of the event.
The core reactions of intrusion, arousal, and avoidance may be expressed through other symptoms, such as depression and anxiety. Similarly, one may experience a loss of self-worth and may have difficulty with intimate and interpersonal relationships. Some scholars have referred to self-blame and feeling responsible for racial discrimination, as “internalized racism”.
Furthermore, it should be pointed out that the manner in which a particular person responds to perceived racial hostility depends on the specifics of the event, the nature, and type of support they have, and their own ability to cope. Targets of racism describe feeling shocked, confused, helpless, anxious, afraid, devalued, frustrated, bitter, angry, and enraged, as well as combinations of these feelings. The symptoms and feelings can result in altered social lives.
I have described some of the essential elements of RBTS, in “Measuring the Effects of Racism” and other articles, in which I argue that, the broad definitions of racism are not useful because macro or systemic definitions of racism do not allow professionals or lay people to link its mental health effects to an individual’s emotional and psychological reactions. While, it is important to understand the role that various forms and levels of racism play in our society and in our lives as, individual, institutional and cultural racism, as well as the harm they cause, such as residential segregation, educational, economic, political, legal, and health disparities. These provide adequate evidence of harm to racial groups, at the same time, for a person who has an emotionally painful racial encounter(s), the broader social effects of racism or racial disparities do not allow for a direct connection to how a person was effected by the specific encounter(s) with racism. The larger system effects are described by Williams and Mohammed (2013) when they state that the empirical evidence regarding racism,
“reveals that institutional racism shapes socioeconomic status (SES) and [related factors, like involvement with the criminal justice system]. . . [as well as] cultural racism, with its associated, negative images, stereotypes, and prejudice, can be damaging . . . [and] interpersonal discrimination is a potent psychosocial stressor that has pervasive negative effects on [mental and physical] health” (p. 1153).
Therefore, in addition to the systemic, institutional, and interpersonal forms of racism, we include and use, classes of racism; defined as, hostile, avoidant, and aversive-hostile to connect a person’s emotional and psychological symptoms to specific racial encounter(s). These forms of racism are defined as follows: Avoidant racism, is reflected in how dominant racial group members and institutions segregate non-dominant people to keep them in their place, on the margins of society or outside the mainstream. Acts of avoidant racism range from social exclusion to explicit barriers, such as denying to rent or sell homes or apartments in particular areas, to create segregated neighborhoods and workplaces. Hostile racism is when the power of the dominant group is asserted. George Floyd, clearly, was the victim of hostile racism, what was done to him, communicated to him and other Black people – that he and they were powerless and inferior. Aversive-hostile racism, involves the type of racial discrimination contained in unwritten social and organizational rules, in other words, the social structures that dictate status, or lack thereof. The message to non-dominant people is that even if we let you in, you should stay in your place. The invitation to a seat at the table is revocable, dependent on your compliance with racial rules. I have described some general reactions to racial encounters and must note that a person’s exact symptoms of race-based traumatic stress depend on the person and his/her situation.
We use a racial-cultural framework to document how racism impacts people wherein, decision-makers are able to grasp the ways in which race and racism are not like other stressors, racism is, by its nature inexplicable and therefore difficult to locate in reasonable reflections. It is also the case that incidents of racism and racial discrimination are prevalent and more common regardless of the racial group to which one belongs.
Research on racism has shown that many Americans continue to experience racial discrimination in various areas of life (e.g., housing, school, work and in interactions with the justice system) and see racism as a big problem in this country despite laws that prohibit such discrimination. In general, members of all racial groups report experiencing racial discrimination and feeling stress from such encounters. Whites reported personal discrimination, when applying for jobs (19%), in receiving equal pay or promotions (13%), or when applying to or attending college (11%). For people of Color, the percentages increase, wherein they report a greater frequency of racial discrimination encounters. More than 25-30 percent of Latinos and Asians are indicted being discriminated in applying for jobs and in other areas of life. While for Blacks and Native Americans the frequencies raise to over 50 percent and the areas of life where they report discrimination increase as well. Hundreds of empirical studies, conducted over more than five decades, using a variety of methods and measures of different types of racism and discrimination, with diverse populations, across a number of scientific disciplines, have found that racism has a negative impact on mental and physical health.
In the books, we point out how the legal and mental health disciplines, have failed to provide guidance about how to address or remedy the occurrence of racial discrimination and racism or its psychological effects. We further contend that acts of racism and racial discrimination are external assaults that harm the person such that he or she may be functionally impaired; we state, further that, the person who experiences hurtful racial incidents and has symptoms as a result of it, has been injured.
Typically, mental health professionals participate in legal matters by conducting forensic psychological evaluations and submitting reports on the person’s mental state which usually do not include racial considerations. We think that this approach is limited in matters that involve race. Partly, because issues surrounding race and racism, are often treated as matters of opinion or personal perspective and require considerably more hard evidence to set the proper context regarding the circumstance of the racial incident(s) and the effects of racism. Therefore, we do not adhere to the standard psychological evaluation procedures in forensic psychology. We employ an explicit racial framework of the situations with empirical research, legal evidence, and related studies, coupled with a clinical race-based assessment that can focus on the target of racism and affected family (sometimes across generations). The focus of the report is whether the person was emotionally harmed and impaired by racism and if that harm should be considered in the legal decision-making process.
The report is designed in such a way, that the legal decision makers are given a way to understand how race and racism work and worked, in the specific setting(s) in question –we think it is vital to show in one’s report using empirical research evidence how the situation(s) caused harm, and that its occurrence was not isolated.
I note that there is a practice in the law and mental health, of discounting reports of racism’s effects simply because it involved a subjective element, which is inconsistent with stress and health research since stress researchers and scholars emphasized the power and importance of the subjective appraisal process, therefore, it is wrong to discount perceptions of racism as stressful.
We applied our approach to a criminal case – it was a military court martial: D., a Black man, was charged by the military with two counts of attempted murder regarding a road rage incident.
D., and two passengers were traveling along a highway, in the northwest, when they encountered two White people who D., claimed tried to run him off the road (backing up toward him) at a high rate of speed while yelling racial epithets and D., alleged he acted to defend himself and his passengers by discharging a weapon toward the vehicle, no one was injured or hurt.
We were retained to consider the racial aspects of the incident, the social context of the defendant’s experiences, and to assess whether D., suffered any race-related emotional distress or race-based traumatic stress injuries.
The goal in developing our expert report was to provide the legal decision-makers with a perspective of D.,’s experiences and perceptions. We wanted the jury or judge to understand D.’s experiences and his perspective of the events. To do so, we presented a racial-cultural context of the situation and offered evidence that framed the situation in a race-based context since D., as a young Black male, lived in a racial-cultural world. This fact needed to be clear to the decision-makers. To accomplish our objective we begin the report by setting and defining the social world in the U.S., which we contended influenced the actions, thoughts, and perspectives of the parties involved in the highway incident. Therefore, it was vital that the events in this matter be viewed within the context of race, racism, and racial bias, so we documented and described how race and racial discrimination function in daily life, in particular how these factors influence(d) civilian and military justice systems. We pointed out, that the present, with respect to race and racism, was linked to the past, and that the racial hostility and violence visited upon Black men, is evident in the present, as it was in the past. We indicated that it was critical to consider race-related practices and experiences that are and have been documented by research, scholarship, social, print, internet, and televised media accounts, as well as empirical evidence. It was also vital to document how people in general view and interact with Black people and in particular how law enforcement treats Black people in and out of the military.
We showed the various points of view that people have about race and racism and how these viewpoints and opinions vary by race and the contrast between White and Black Americans. We reminded the decision-makers that justice and freedom for centuries were denied Black people and this accounts, in part, for the presence of racism and racial discrimination in our society, and how come race and racism are embedded into our daily life, in customs, traditions, laws and popular beliefs.
Thus, racism and racial discrimination were defined and associated concepts presented such as bias, individual, institutional, and cultural racism, as well as classes of racism. Once defined we were able to show the evidence of racism’s impact on individuals, through stress reactions from discrimination. We established with empirical studies the harm to physical and mental health that has been documented from encounters with racial discrimination. We presented RBTS and its effects.
Because the incident involved Whites and Blacks we discussed the evidence available about how Whites view Black people. In essence, Whites’s views of Black are often highly negative and they think that Blacks are to blame for violent acts.
In a study of 453 adults examining the role of the race of a victim and of a shooter, on opinions of perceived fault and recommendations for the indictment of the perpetrator, Dukes and Gauthier (2017) found that Blacks, who were victims of a shooting, were perceived as more likely to be at fault and more to blame – when negative stereotypes about the Black victims were presented. We also show the well-documented and fairly large racial disparities across all levels of the civilian and military criminal justice systems. Black defendants/plaintiffs tend to be treated more harshly in criminal and civil cases.
Other sections that set the situation and context for the events in question – included examinations of research literature on Increases in Racial Tensions and Open Expressions of Racist Sentiments by Whites; Psychological Impact of Viral Videos on Black People; Race and Road Rage Incidents: Who are the likely victims? As well as a section about race and racism in the geographic region of the United States where the incident took place. Taken together, this body of research suggested, that it is plausible: for a Black man to be hypervigilant and fearful when followed and called racial slurs by White motorists. That a Black man was justified in perceiving his life was at risk. That Blacks are more likely to distrust institutions and systems (e.g., law enforcement) that have historically retaliated against them. That feelings of cultural mistrust would decrease Black’s confidence that a report of holding a weapon would be met with positive action, particularly due to sensitivity to the social costs of doing so (e.g., being perceived as violent, aggressive, trouble-makers, and prone to criminal behavior). Thus, we demonstrated that given the racial-cultural, as well as the historical racial context, the racial climate in the country and in the region of the country where the incident occurred, and D.,’s personal racial history, his fear of being assaulted by the White couple, in their car was reasonable, and his reaction was one of self-defense. Time prevents me from providing any further details so I will conclude with this.
We described what happened – the White motorist reported that they were shot at – and they left the road incident. We started our opinions and analyses of D., in terms of RBTS. We argued that his claims of self-defense were reasonable in that we could show how come he feared for his and his passengers’ lives. He was convicted of a lesser charge and was sentenced to a short jail term.
RBTS and Mitigation
We also applied our approach to a post-conviction capital mitigation declaration. We were asked to examine the defendants’ psychosocial development throughout their life span. In this matter, we were required to consider a wider range of people and issues, since the report was not about an incident, rather we were tasked with integrating the families and the defendants’ medical, educational, social, occupational, psychological, intergenerational, racial, and other factors that affected the defendants’ emotional, social, psychological, behavioral, and cognitive functioning. We documented any emotional, psychological, physical, and cognitive impairments present during the defendants’ lifetime.
Like in the previous case we used to race, racism, and racial discrimination as our context and primary focus. We organized the records and documents, as well as several historical articles, treatises, empirical research studies, government records, and reports, such that we were able to build concentric circles around the defendant and the family, across multiple generations.
As was the case in the previous case we were asked by the retaining lawyers to present and explain the racial issues in the defendants’ life, that seemed to have been overlooked and to show how race and racism contributed to the defendants’ actions in ways that were never effectively addressed or explained.
We summarized the defendant’s history, as well as the history of the defendant’s family members, where such history was relevant to the defendant’s overall functioning. We highlighted those events and experiences that formed the basis of our assessment of psychological and emotional symptoms and developmental and cognitive impairments for which the defendant was at increased risk and those that were expressed in behavior.
We defined our terms and explained the racial-cultural context and concepts that we employed and how these mattered. We documented how the various issues occurred in the context of race, racial discrimination, and racism and their effects on the defendant and on the defendant’s family. We began with the defendants’ birth and moved out from there to tell the story of the defendants’ life and family, including three previous generations. Consistent with expanding circles we documented the educational, social, and community environments that influenced the defendant and what role the defendant’s parents had in his life and development.
We integrated research and analyses of the impact of race as traumatic stress, both in terms of history but also in terms of the dynamics and effects on the defendant while growing up, as well as, on the family. The inclusion of the family required that we present evidence of intergenerational transmission of racial trauma as well as, physical, and genetic factors, and varied racial climates, such as schools, neighborhoods, counties, and states. We presented evidence of the risks and factors that the defendants’ parents, grandparents, and great-grandparents were exposed which affected the defendants’ development and any emotional symptoms and reactions that interacted with and/or inhibited the defendant’s biological and psychosocial development.
Regardless of the form it takes, racism and racial discrimination are significant biopsychosocial stressors with well-documented empirical research evidence demonstrating their adverse physical and mental health effects on Americans. It is important to note, as have many researchers and scholars, that racial discrimination in the lives of most people is neither aberrant nor random; it has existed for centuries and affected numerous generations in the United States. How racial discrimination and racism occurred in the past, connects race and racial discrimination to the present. In particular, we described how various aspects of racism and racial discrimination operated in the defendant’s and other family members’ lives, in direct and indirect ways that significantly hampered or hindered the defendant’s developmental course. We highlighted how consideration of the impact of racial issues was absent in the previous legal proceedings that had taken place.
In our books and articles, we show how lawyers and mental health professionals can work together and use – RBTS forensic assessments to document the varied effects of racism and the presence of race-based emotional and psychological harm. We think our combined legal and mental health strategies are viable and fruitful for Measuring the Effects of and for Confronting Racism.
Thank you for your attention