WHEN CRIMINAL TRIAL BECOMES A PLACE OF NEW VIOLENCE - Deborah Breda - ETHICA SOCIETAS-Rivista di scienze umane e sociali

Testifying in the Presence of the Offender: Secondary Victimization of Women in the Italian Criminal Justice System

Abstract: The direct experience of a domestic violence survivor inside the courtroom reveals a structural paradox within the Italian justice system: instead of providing protection, the trial can become a site of re-traumatization. Although Article 111 of the Constitution guarantees the right to adversarial proceedings, the presence of the abuser in the courtroom and questioning practices often uninformed by trauma generate a severe form of secondary victimization, in violation of the Istanbul Convention (Art. 31). ISTAT data show a very low reporting rate of only 11.8%. In 2025, despite a 35% decrease in femicides, approximately 75% of victims still did not report the violence, reflecting widespread mistrust in the system. The most frequent forms of abuse are physical and psychological, often involving minor children as witnesses or direct victims. These factors underscore the urgent need to adopt a trauma-informed justice model that safeguards victims, prevents further harm, and effectively balances justice with protection.

Keywords: #DomesticViolence #SecondaryVictimization #PsychologicalTrauma #NeurobiologyOfTrauma #TraumaInformedJustice #VictimBlaming #GenderBasedViolence #VictimProtection #CriminalTrial #DeborahBreda #EthicaSocietas #ScientificJournal #EthicaSocietasJournal #ScientificReview #EthicaSocietasSupli

versione italiana

Introduction: The Paradox of Justice

This first-hand experience offers a direct and unfiltered look at the paradox that characterizes the Italian judicial system in its treatment of victims of domestic violence, revealing how the pursuit of justice can often become a source of further trauma. This explains why the victim, confronted with her abuser in the courtroom, once again felt defenseless and vulnerable, her heart racing and fear overwhelming her thoughts. In that state of extreme fragility, she almost attempted to justify having reported him. When the judge asked why she had made that choice, she responded with pain and urgency: “The officer forced me to do it.”

This article aims to analyze, through a dual psychological and legal perspective, the critical issues within a system that, despite its intention to ensure fairness and protection, risks perpetuating forms of secondary victimization. It focuses in particular on the neurobiological implications of trauma and on procedural practices that may intensify the victim’s suffering.

The Neurobiology of Terror: Why Testifying Becomes a Nightmare

Neuroscientific literature has now clearly demonstrated that exposure to trauma triggers specific neurophysiological responses (Van der Kolk, 2014). When confronted with her aggressor, the victim’s brain reacts with hyperactivation of the amygdala—the fear center. Cortisol floods the system, impairing the executive functions of the prefrontal cortex, which governs narrative memory and logical reasoning.

In reality, it is not a lack of will or cooperation: it is a physiological survival response. The victim who “freezes,” “cannot remember,” or “contradicts herself” in the courtroom is not lying. She is experiencing a neurobiological trauma response—the freeze—which prevents coherent access to memories when under the threatening gaze of the abuser. Expecting a clear, consistent testimony under such conditions is not only ethically wrong—it is scientifically naïve.

Cross-Examination as a Tool of Domination: The Defense Strategy

The physical presence of the defendant is not a mere procedural detail. It represents the continuation of psychological violence through other means. His stare, gestures, facial expressions expressing disbelief or implying that the woman is lying, and his intimidating smirks are powerful forms of nonverbal control that reactivate in the woman’s mind and body the same terror responses experienced during the abusive relationship.

To this, one must add the defense’s procedural strategies, which often exploit gender stereotypes and mechanisms of victim blaming:

“Why didn’t you leave earlier?” (ignoring Battered Woman Syndrome and learned helplessness)
“Isn’t it true that you also raised your voice?” (equating conflict with asymmetric violence)
“It was just a slap, wasn’t it?” (minimizing the abuse)

These questions, though formally legitimate, substantially undermine the victim’s dignity and construct a procedural narrative that shifts blame onto her, transforming her from the injured party into a moral defendant.

Consequences: The Human Cost of an Inadequate System

The impact of this experience is devastating:

Acute re-traumatization: the trial process exacerbates Post-Traumatic Stress Disorder (PTSD).
Institutional betrayal: trust in the justice system becomes irreparably damaged.
Recantations: withdrawing the complaint is not a whim, but a psychological survival mechanism in a system perceived as hostile and ineffective.
Deterrent effect: the message to other victims is clear—“Reporting is useless, it only makes things worse.”

Towards a Trauma-Informed Justice: Critiques of Restorative Justice

As an alternative approach, restorative justice seeks to reduce the traumatic impact of criminal proceedings through less formal methods. However, in cases of domestic violence, it presents significant critical issues:

Domestic violence is rooted in a power imbalance that makes a fair, equal confrontation impossible.
The Istanbul Convention explicitly prohibits mediation or conciliation that may endanger the victim’s safety.
Experience shows that restorative justice can expose victims to further suffering and manipulation by the perpetrator, potentially reinforcing the cycle of violence.
There is a lack of adequate training, protocols and resources to ensure victim safety in such processes.
In many cases, restorative justice can benefit the perpetrator without providing any real advantage to the victim, creating a high risk of secondary victimization.

For these reasons, applying restorative justice in cases of domestic violence requires extreme caution, prioritizing victim protection with rigorous measures and certainty of sanction.

Conclusion: Beyond the Wounds, the Hope of Justice

Asking a woman to confront in court the person who inflicted her suffering—without adequate safeguards—risks turning the trial into a source of new trauma. In a system that defines itself as civil, it is essential not to impose an excessive burden on victims, especially when procedures fail to adequately account for the trauma they have endured.

Justice must be capable of healing, not re-traumatizing—placing human dignity at the center throughout the entire judicial process. It is not a matter of favoring one party over another, but of embracing a fundamental human responsibility.

No woman should ever be forced to choose between the right to a recognized truth and the preservation of her psychological integrity. Genuine justice is that which helps break the cycle of violence without inflicting further pain on those who have already suffered.

REFERENCES

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