May 2018 - Save - Leading The Policy Movement For Fairness and Due Process On Campus

Contact: Christopher Perry

Telephone: 301-801-0608

Sexual Assault: Effort to Restore Due Process on Campus Gains Traction

WASHINGTON / May 14, 2018 – Over the past seven months, leading liberal and conservative voices have worked to restore due process and fairness in campus sexual assault policies. Such initiatives reveal a growing trend being supported by lawmakers on both sides of the aisle.

Last September, Betsy DeVos, Republican Secretary of the U.S. Department of Education, rescinded the 2011 Dear Colleague Letter, a policy that was widely viewed as infringing on fundamental due process rights of accused students (1). The following month, Democrat Jerry Brown, governor of California, vetoed a bill that would have imposed many of the Department of Education’s anti-due process requirements on California universities (2).

Likewise in Massachusetts, the Democratic-controlled House of Representatives declined to take action on H.632, which had been previously passed by the state’s Senate. Critics of H.632 highlighted the flaws of trauma-informed training for investigators and adjudicators, a provision that had been derided as “junk science.” (3)

The pro-due process trend gathered momentum in 2018, as Supreme Court Justice Ruth Bader Ginsberg offered this commentary: “The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. …There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” (4)

In Maryland, lawmakers took up Senate Bill 607, which required disciplinary proceedings to include a description of the rights for students and specified that an institution may not prevent a student from retaining an attorney. The bill recently passed both the Maryland Senate and House with strong bipartisan support (5).

In Colorado, House Bill 18-1391 was approved in the House. But because it failed to include sufficient due process protections, the bill it was significantly amended by Republicans in the Senate, resulting in the bill’s indefinite postponement (6).

In West Virginia, House Bill 2825, a bill that would have mandated worrisome “affirmative consent” polices at the state’s colleges, was not voted upon prior to adjournment of the state legislature (7).

In Mississippi, House Bill 1438, which was devoid of adequate due process protections, died in the Senate Judiciary Committee (8).

The editorial boards of two liberal-leaning newspapers likewise have called on colleges to involve criminal justice officials to investigate felony-level crimes. In January, the Detroit News opined, “Federal, state and campus policy regarding sexual assault should change to treat it as the serious crime it is, and assure that it is probed by experienced, professional investigators independent of the university.” (9) Last month, the St. Louis Post-Dispatch board issued a similar plea: “The pain lives on at universities whenever sex-abuse cases are handled quietly in-house rather than by competent legal authorities.” (10)

A summary of the current status of the state-level sexual assault bills introduced in 2018 is available on the SAVE website (11). In Congress, both Republican and Democratic lawmakers have spoken out on the need for due process and to strengthen the role of the criminal justice system (12).

SAVE urges state and federal lawmakers to recognize the growing trend for impartial and fair proceedings in campus sexual assault cases. SAVE offers a model bill titled the Campus Equality, Fairness, and Transparency Act (13).

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org

Maarten van Swaay

The phrase ‘trauma-informed’ has a worthy provenance; it has been used for quite some time to describe approaches used to improve communication with children who had suffered from known traumatic events, such as accidents, fire, death of family members, divorce, etc. Such children may withdraw into a shell, possibly to protect themselves from further trauma. Encouraging them to come out of that shell can be very beneficial.

But that is far removed from the current advice to be trauma-informed in the investigation of alleged sexual assault in all the forms for which the term is used today. In that context the aim is not to draw a traumatized person out of her (or his) shell: the aim is to gain evidence that trauma was indeed inflicted. Thus the phrase ‘trauma-informed investigation’ is fatally flawed: it insinuates the very infliction that the investigation is supposed to confirm or find false. Not only that, the presumption of (inflicted) trauma implies a victim on whom the trauma was inflicted. Moreover, these insinuations are planted before any investigation is begun – that makes them very resistant, or possibly even immune, to challenge. Finally, and most invidiously, the approach is designed, not to find facts, but to find a perpetrator, and punish him.

A recent article by Ms. Mangan (1) refers to an event — understandably with a paucity of detail — for which police declined to press charges, for lack of evidence. The article notes that subsequently a panel from Georgia University – ‘trained in the neurobiological effects of trauma’ reached a different conclusion. What that conclusion was, the article does not say, but it notes that ‘the university scheduled a hearing, and the student accused of assault agreed to leave the institution’. Here the narrative becomes disturbingly vague: what conclusion did the Georgia panel reach, and why did the ‘accused’ student leave? The article is silent on both questions, but quite effective at suggesting how readers should answer them.

Similarly disturbing questions arise from a reading of an item far removed from the Chronicle. In 2016, an organization named the Association of Title IX Administrators (ATIXA) published a White Paper under the title “The Seven Deadly Sins of Title IX Investigations” (2). The writers were careful to place occasional laudable phrases in the text, but those do not hide some seriously biased presumptions: “If they made what you think was a poor decision, they’re probably already thinking the same thing. That sense of self-blame won’t help you uncover the real facts, and you should try to help them past it. People can make poor choices and still be victimized.” One wonders what those ‘real facts’ are, and how they might be discovered in any ‘he said – she said’ event. Granted, it may be understandable that administrators charged with dealing with fraught situations will try to make themselves appear capable and indispensable. But integrity is an unforgiving taskmaster.

Elsewhere in the ‘Seven Deadly Sins’ one can read: “Similarly, a sound investigation must actively gather and accumulate information to tell a story.” Do the authors advocate writing a story, or compiling a factual report?

In her article, Ms. Mangan refers to two persons she clearly regards as experts, Mr. Jim Hopper, and Ms. Kimberly Lonsway. At first sight, the credentials of Mr. Hopper appear reassuring, if not impressive. Mr. Hopper teaches at Harvard Medical School and presents himself as an expert on psychological trauma who travels the country training campus officials and others in how to conduct trauma-informed investigations. But the CV maintained by Mr. Hopper (3) reveals some telling aspects. Mr. Hopper earned a PhD. in clinical psychology in 1997, and has held a string of appointments in various teaching institutions, with his current affiliation with Harvard Medical School dating from 2006. None of these appear to be, or to have been, faculty or tenure-track appointments. Nor do they appear to be focused on research. Then comes a long list of lectures, presentations, and training sessions, the titles of which are curiously monotonous. Mr. Hopper appears to spend much of his time expounding his views on invitation, but does not reveal much participation in professional meetings that foster evaluation and challenge. Thus it appears that Mr. Hopper gives himself little opportunity to offer his views for analysis and criticism.

Furthermore, the model presented by Mr. Hopper has been carefully scrutinized by Ms. Emily Yoffe (4), and a response by Mr. Hopper to that critique (5) is considerably less persuasive than what Ms. Yoffe writes.

Then what is the model that Mr. Hopper so eagerly advocates? It rests on claims that traumatic experiences can (and do) release several brain hormones, and that those hormones can have wide-ranging effects, such as garbled and incomplete memories, ‘freezing’, and others. The release of brain hormones can be experimentally demonstrated, but what they do is still difficult to study. Moreover, Ms. Yoffe notes that many of the claims made by Mr. Hopper are at odds with other neurobiological observations. Ultimately, what Mr. Hopper advocates may be summarized by a short statement: if the ‘victim’ can present a lucid account, that makes that account credible. If the ‘victim’ cannot present a lucid account, that failure is itself evidence for inflicted trauma.

When Mr. Hopper was asked to respond to the open letter presented by SAVE early in February 2018 (6) he commented that the letter was ‘misleading and unfortunate’. But he did not find it necessary to explain in what sense the letter was misleading; one would expect a trauma expert to stand ready to deliver more than ‘unfortunate polarization’ as the grounds for his casual dismissal.

Mr. Hopper does have eager followers. Not only is he invited all over the country by police and academic campuses: Ms. Lonsway gushes that: “What’s new is that now, we understand the neurobiology behind it” (7). Ms. Lonsway earned her PhD. (8) with a thesis on the effectiveness of police interrogations; it is not clear how that would give her standing to judge the neurobiology and neuropsychology claimed to support the model of Mr. Hopper.

There are more than a few troubling similarities between the activities of Mr. Hopper and pediatric nurse Susan Kelley, who played a key role in the child abuse drama at Fells Acres some thirty years ago (9). Ms. Kelly was a major interrogator of the children who had been at the Fells Acres school. As she describes her approach, a child who fails to deliver what the interrogator wants to hear is ‘not yet ready to disclose’. In other words, only those statements that are acceptable to the interrogator are accepted and admitted into the record. The Fells Acres affair, and several similar cases, are described in a book by Dorothy Rabinowitz: No Crueler Tyrannies; she earned a Pulitzer prize for her reports in the Wall Street Journal on those cases (10). Among those tyrannies was the imprisonment of Gerald Amirault for 18 years (11), before he was released. Almost all the other convictions described by Ms. Rabinowitz were vacated. Of course none of the children were ever imprisoned, but it is fair to say that most, if not all, of them suffered severe and persistent trauma from the false memories implanted in them.

Ms. Kelley, and others like her, became known as people ‘who could get a conviction’. Mr. Hopper, and those who are in thrall to him, appear to aim to earn the same dubious reputation, by subverting a benign-sounding phrase into a wiccan-hunt, with little regard for justice or for the Constitution.

Maarten van Swaay retired in 1995 from Kansas State University as Professor Emeritus, after serving for 32 years in the departments of chemistry and computer science. In the latter department he developed and managed a course in ethics for more than a decade. He can be reached at vanswaay@ksu.edu.

Citations:

1: Chronicle of Higher Education, “Trauma Informed” Approaches to Sex Assault Are Catching On. They’re Also Facing a Backlash.

By Katherine Mangan. April 05, 2018. https://www.chronicle.com/article/Trauma-Informed-/243049

2: ATIXA: The 7 Deadly Sins of Title IX Investigations: 2016 White Paper. https://atixa.org/wordpress/wp-content/uploads/2012/01/7-Deadly-Sins_Short_with-Teaser_Reduced-Size.pdf

3: James W. Hopper, Ph.D.: Curriculum Vitae. https://www.jimhopper.com/pdf/DrJimHopperCV.pdf

4: The Atlantic: The Bad Science Behind Campus Response to Sexual Assault, By Emily Yoffe, September 8, 2017. https://www.theatlantic.com/education/archive/2017/09/the-bad-science-behind-campus-response-to-sexual-assault/539211/

5: Jim Hopper, Ph.D., Sexual Assault and Neuroscience: Alarmist Claims vs. Facts. Psychology Today, January 22,2018. https://www.psychologytoday.com/us/blog/sexual-assault-and-the-brain/201801/sexual-assault-and-neuroscience-alarmist-claims-vs-facts

6: SAVE: Open Letter Regarding Inequitable Victim-Centered Practices, February 7, 2018. http://www.saveservices.org/wp-content/uploads/Victim-Centered-Practices-Open-Letter-FINAL.docx.pdf

7: Ms. Lonsway, as quoted by Ms. Mangan: “We’ve always known that victims often have certain problems with their statements. They aren’t chronological. They aren’t linear. What’s new is that now, we understand the neurobiology behind it.”

8: Kimberly A. Lonsway, Ph.D. Curriculum Vitae. https://kimlonsway.files.wordpress.com/2017/10/lonsway-cv-10-24-17.pdf

9: Dorothy Rabinowitz: No Crueler Tyrannies: Accusation, False Witness, and Other Terrors of Our Times, March 2, 2004, ISBN 978-0-7432-2840-4

10: Ms. Dorothy Rabinowitz is awarded the Pulitzer for Commentary (2001). http://www.pulitzer.org/prize-winners-by-year/2001

11: Gerald Amirault record. https://en.wikipedia.org/wiki/Gerald_Amirault