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A calm confession may be due to PTSD and not free will

Often unbeknownst to police who are interrogating suspects and extracting confessions or to judges who are ruling on cases involving confessions, suspects may actually be suffering from PTSD, Post-Traumatic Stress Disorder, and this can be wreaking havoc with the justice system and leading to the incarceration of innocent people.

PTSD develops in response to exposure to trauma, defined as, for example, “a threatening or horrific event” or “actual or threatened death, serious injury, or sexual violence”. PTSD can occur even following a single traumatic event such as a car accident or an assault.

A more severe disorder, known as Complex-PTSD (c-PTSD) can result from prolonged exposure to trauma or a situation in which escape is difficult and one’s fate is in the hands of another. Examples may be kidnapping, prisoners of war, or hostages, and was seen in many of the “sex-slave” victims of ISIS. As a method of self-preservation, sufferers of c-PTSD (and PTSD) will often show dissociative symptoms as a means of severing themselves from the trauma and thereby sparing themselves the pain of the trauma. In so doing, a person who is truly in pain and who is suffering and agitated, may simply “turn off” from the surroundings and appear totally calm and at peace, concealing their pained and stormy true inner feelings.

What does this have to do with criminal justice? A great deal! For example, a child victim of long-term sexual abuse, a type of trauma that puts someone at significant risk for c-PTSD, may be in horrific pain and yet when the police interrogate them may appear so calm, as to cause the interrogator to question whether the seemingly calm person in front of them really experienced the trauma they claim.

Another scenario relevant to the criminal justice system is “kidnapping” by the authorities for interrogation. From the perspective of the traumatized individual, it matters little if the “captors” were from an enemy country or the local police doing these harmful actions and threatening him. As a country, we were recently given a shocking window into the interrogation methods used on a well-connected individual in a white color crime investigation when Nir Hefetz described his ordeal as a witness in the Netanayahu trial. He was held for 15 days during which he suffered sleep deprivation, lack of food, unsanitary conditions, and failure to receive medical treatment, as well as untold psychological pressure, such as explicit threats (see e.g. https://www.jpost.com/israel-news/did-israeli-police-interrogating-nir-hefetz-cross-the-line-analysis-687579  and  https://www.timesofisrael.com/high-profile-cases-shine-harsh-light-on-israels-draconian-interrogation-tactics/). Captivity under such conditions can unquestionably lead to c-PTSD.

Studies have shown that the prevalence of c-PTSD after prolonged trauma where one’s destiny is completely under another’s control is over 50%, while the prevalence of only-PTSD in such a scenario is another 23%. Meaning, nearly 3/4 of such people will develop a psychiatric post traumatic condition.

The prevalence of PTSD in various forms and its dissociative symptom is very relevant regarding interrogated suspects and their confession. For decades, Israeli courts have treated confessions as the “Queen of Evidence”. But the law requires that for a confession to be acceptable in court, it must have been given by the defendant’s free will. How do the courts ascertain such a thing? It would make sense to consult with a mental health professional who is an expert in traumatology to help determine if the confession was in fact given out of free will. Sadly, that does not seem to be the practice, and the requirement as stated in the law seems to be for the law books only.

The question that needs to be asked is whether merely watching a video of the confession is sufficient to determine the mental state of the suspect in order to determine whether the confession was truly given of his free-will. Or is it possible that the suspect appears calm but is actually feeling threatened and intimidated and is confessing not out of free-will but out of fear?

There is a high probability that a prolonged interrogation that includes harsh techniques will lead to trauma symptoms, including dissociation. In a dissociated state the ability to resist is greatly diminished to the point of negating the suspect’s free-will. As a result of the numbing of the senses, this distress may not be displayed externally and the person may appear at ease. Furthermore, in a state of dissociation, it is likely that the individual will appear as a calm, freely-cooperating person who does not suffer from PTSD yet is suffering terrible stress.

Although the non-psychologist may be bothered by the counter-intuitive reality that a trauma/torture survivor would display outward serenity or calmness, this is the reality, especially in the presence of a strong trauma reminder. This is because dissociations, a trauma symptom itself, can mask very intense emotions, such that the presenting person comes across as compliant, not-difficult, and even agreeable, self-confident, cooperative, unafraid, and free from emotional constraints. Persons in a dissociative state may even perform actions and/or agree to things to which they are fundamentally opposed, all the while appearing calm.

This issue arises time and again in the Israeli criminal justice system, a system in which interrogation techniques can be draconian, disproportionate weight is given to confessions, and courts do not see videos of the entire interrogation but only of the confession, supposedly given freely.

An instructive, extreme case is currently in front of the Supreme Court and if the court gives weight to the science, it has an opportunity to begin to fix the broken system. Ben Uliel, convicted of the Duma fire-bombing, was held in severe conditions for 17 days and then tortured to finally extract his confession, which was then repeated the following day. The lower court determined that Ben Uliel’s confessions given during the torture were coerced and thus inadmissible, but that those given the next day were given freely. This was despite the fact that they were made following a c-PTSD inducing scenario and in the presence of a “trauma reminder” – the lead shabak interrogator.

How did the justices in the lower court arrive at that troubling conclusion? They claimed that by observing the “calm demeanor” of the defendant in the videotaped confession they could ascertain that he was not stressed and ergo, the confession was given freely. These judges essentially decided that he was not suffering from c-PTSD, was not in a dissociative state, and that the presence of the torturer at the time of the confession did not produce any stress! It may be that they did not even realize that those were the implications of their decision, but their shocking decision is the kind that is eroding public trust in the judicial system. That a person might appear outwardly relaxed and yet actually be feeling threatened and under great stress is well-known in the psychology world, yet the court displayed hubris in their utter indifference to the basic science. The court seemed to understand little about stress, PTSD, dissociation, and other factors at play at the time of those confessions, and yet felt so emboldened by their “robes” that they did not seek a professional consult.

The naïve layman, and that may include the typical judge, might assume that the mental state of a suspect and the degree of his free will can be reliably assessed by watching the confession video. In the Ben Uliel case, the accused suddenly went from a free man to a prisoner with prolonged absence of contact with the outside world, sleep deprivation, fatigue, threats, physical torture/abuse, solitary confinement etc., all of which qualify as trauma exposure. In such a case, the traumatic symptoms, including dissociation, could be reactivated every time the prisoner would be exposed to a “trauma reminder” e.g., an interrogator associated with the trauma. What’s more, both PTSD levels and dissociative state levels have been found to be elevated under conditions where the perpetrator is in an authoritarian relationship with the victim, as in this case. Of note, traumatic symptoms can be activated even by weak triggers. For example, the scientific literature reports a case of a woman raped by a “tall and bald man” who years later saw someone “tall and bald in a restaurant” and displayed activated symptoms.

In the Ben-Uliel case, the lead shabak interrogator was present for the video-taped confession. There can hardly be a stronger trauma reminder for someone who spent 17 days in “regular” shabak interrogation, and several more with “enhanced” interrogation.

It is likely that a traumatized victim in the presence of the trauma reminder will be in a ‘disconnected’, dissociative state, in which they appear calm and compliant and do not outwardly exhibit excitatory emotional states. It is thus unequivocal – it cannot be determined if a confession was given freely by simply watching a video of the confession.

A version of this was published in the Jerusalem Post on January 10, 2022

About the Author
Ari Zivotofsky is a professor of neuroscience at Bar Ilan University. Also trained as a rabbi and shochet, he has a masters degree in Jewish history. He has written extensively on topics of Jewish history, culture, and traditions, in particular in Mishpacha magazine and in his regular column (now running 20+ years) in the OU magazine Jewish Action.
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