Month: April 2019

Categories
Domestic Violence Violence Against Women Act

Everything You’ve Heard About Domestic Violence is One-Sided, Misleading, or Completely False

Certain groups in our society like to create a narrative and then run with that narrative, regardless of the facts of the issue. Domestic violence is perfect example of this phenomenon. Practically everything you’ve heard about domestic violence over the past 20 years is one-sided, misleading, or simply false. Here are three of those myths:

1. “Domestic violence is all about men beating up their wives.” Not true. According to the latest Centers for Disease Control report, men are more likely than women to be victims of physical abuse in the past year:[1]

Level of Violence – Previous 12 Months Men Women
Physical violence – overall 3.8% 2.9%
Slapped, pushed, or shoved 3.4% 2.6%
Any severe physical violence 2.0% 1.9%

2. “Abuse is not a problem among lesbians, because women never abuse.” Again, not true. According to the CDC, lesbian couples, indicated in bold in the table, experience higher rates of abuse than among homosexual couples or heterosexual couples:[2]

MALES – Lifetime Gay Bisexual Heterosexual
Slapped, pushed, or shoved 24.0% 27.0% 26.3%
Any severe physical violence 16.4% [Number too small to report] 13.9%
Total 40.0% 27.0% 40.2%
FEMALES – Lifetime Lesbian Bisexual Heterosexual
Slapped, pushed, or shoved 36.3% 55.1% 29.8%
Any severe physical violence 29.4% 49.3% 23.6%
Total 65.7% 100.0% 53.4%

 

3. “Domestic violence is caused by men seeking to uphold their patriarchal power and control.” This statement is not only wrong, it’s ridiculous. The U.S. Centers for Disease Control has identified over 25 different causes of domestic violence.[3] These include individual, relationship, and community factors. Substance abuse, marital instability, psychological disorders, and other factors are known to often lead to domestic violence incidents.

 

Another common domestic violence myth is that the problem only involves Partner A hurting Partner B. But in 58% of cases, the abuse is mutual and bi-directional, such as, The woman slaps the man, and he shoves her back.[4]

SAVE has developed a Fact Sheet on Seven Key Facts About Domestic Violence.[5] SAVE also has published two Special Reports that further explore the problem of domestic violence myths:

  • Most DV Educational Programs Lack Accuracy, Balance, and Truthfulness[6]
  • Fifty Domestic Violence Myths[7]

Domestic violence programs and services need to be based on sound research and good evidence, not on ideologically driven myths.

 Citations:

[1] Centers for Disease Control. National Intimate Partner and Sexual Violence Survey: 2015 Data Brief – Updated Release. Tables 9 and 11. https://www.cdc.gov/violenceprevention/pdf/2015data-brief508.pdf

[2] CDC NISVS: 2010 Findings on Victimization by Sexual Orientation. Tables 6 and 7. https://www.cdc.gov/violenceprevention/pdf/nisvs_sofindings.pdf

[3] Centers for Disease Control: Intimate Partner Violence: Risk and Protective Factors. http://www.cdc.gov/ViolencePrevention/intimatepartnerviolence/riskprotectivefactors.html

[4] Jennifer Langhinrichsen-Rohling. Rates of bi-directional vs. uni-directional intimate partner violence: A comprehensive review. Partner Abuse Vol. 3, No. 2, 2012. http://www.springerpub.com/content/journals/PA-KnowledgeBase-41410.pdf

[5] http://www.saveservices.org/wp-content/uploads/Seven-Facts-About-DV-2.5.2019.pdf

[6] http://www.saveservices.org/downloads/SAVE-DV-Educational-Programs

[7] http://www.mediaradar.org/docs/RADARreport-50-DV-Myths.pdf

Categories
Violence Against Women Act

Growing Consensus that VAWA’s Criminal Justice Approach Isn’t Working

For years, the focus of the Violence Against Women Act (VAWA) has been ramping up the criminal justice response — more restraining orders, more arrests, more prosecutors, more incarcerations. But this approach does not address the underlying causes of domestic violence: alcohol abuse, marital discord, and childhood emotional trauma.

SAVE has published numerous Special Reports that document the numerous fallacies and flaws of our current approach to domestic violence: http://www.saveservices.org/reports/

Now, that message is sinking in. Recently the HuffPost published an article expressing deep reservations about VAWA’s strong focus on criminal justice measures: https://www.huffpost.com/entry/joe-biden-violence-against-women-act_n_5c7d4097e4b0614614dd02b8

The article quotes University of Maryland law professor Leigh Goodmark:

“No reliable social science data ties the drop in the rates of intimate partner violence to criminalization or to increases in [VAWA] funding. Crime has declined and the funding to address intimate partner violence has increased, but the problem persists.”

SAVE invites you to read the HuffPost article and let your senators know your views on the issue — call the Capitol Switchboard at 202-224-3121.

Categories
Sexual Assault

Will AG William Barr Uphold Fair Investigations in Sexual Assault Cases?

Advocates of due process look hopefully to Attorney General William Barr to stop law enforcement’s recent drift away from traditional protections of Western jurisprudence. The spotlight is on one particular campaign.

Start by Believing Day was observed on April 3rd—the first Wednesday of every April. Start by Believing is a Department of Justice (DOJ) funded drive to transform American police procedure so that accusations of sexual abuse are met with belief and those accused are not presumed innocent until proven guilty. The attitude of “believe the victim” has ruled campus hearings on sexual assault for decades. It is spreading to police departments. This is a logical progression as campus hearings commonly share proceedings in which an accused has received no due process with prosecutors who pursue criminal charges.

Matt Rolph dramatizes the impact on real human beings. The 22-year-old sobbed as he spoke to the New York state paper that independently investigated an accusation of rape against him. The paper and a jury found him not guilty. But the campus hearing, at which he was refused the presence of a lawyer, found him guilty. “It hurts so much that anyone can just google my name and think that I’m a monster,” Rolph declared, “because they don’t know that there was no evidence.” On course to graduate within a few months, Rolph was expelled from Hobart College due to a complaint by an accuser whose identity remains confidential. He is a broken young man.

The underlying issue in cases like Rolph’s is due process. It is jeopardized, if not destroyed, by expanding the “guilty until proven innocent” approach into police departments and courtrooms. Those who champion due process have reason for optimism, however. The recent appointment of Barr as AG has raised hopes that the DOJ will reaffirm traditional principles of justice, especially the presumption of innocence. Start by Believing is a test case.

The program is administered by End Violence Against Women International (EVAWI)–an organization supported by the DOJ’s Office on Violence Against Women. It has received over 20 DOJ grants for a total of about 9 million dollars, with the last grant of $400,000 occurring last fall. But opposition mounts. A headline in the academic watchdog The College Fix announced “Due-process group kicks off campaign to expose flaws of ‘Start by Believing’.” The due process group is Stop Abusive and Violent Environments (SAVE).

To what does SAVE object?

Start by Believing’s victim-oriented approach is embodied by campaign’s Law Enforcement Action kit, which aims at restructuring the framework of police ethics and procedure. The kit’s core is the manual “Effective Report Writing: Using the Language of Non-Consensual Sex.” It is a game-changer for police investigations and for due process. Police are admonished to believe all sexual abuse accusations and to “recreate the reality of the sexual assault from the victim’s perspective” without heed to “changing statements” about the alleged crime.

The International Association of Chiefs of Police code currently states, “The law enforcement officer shall be concerned equally in the prosecution of the wrong-doer and the defense of the innocent. He shall ascertain what constitutes evidence and shall present such evidence impartially and without malice.” And police traditionally seek both inculpatory and exculpatory evidence, including shifts in statement, which is made available to both the prosecution and defense.

Under EVAWI guidelines, however, the police become agents of the prosecutor, not independent fact finders. The manual’s stated goal for an investigation is a “successful prosecution,” which means “an effective report must be prepared by the investigator in anticipation of potential defense strategies,” and it must include “the information necessary to undermine them.”

The most effective evidence of the bias is simply to quote the manual:

  • Page 5: “Record witness statements, especially those that corroborate the victim’s account.” And “document suspect statements, especially those that corroborate the victim’s account.”
  • Pages 15-16: “Another crucial strategy is to always use the language of non-consensual sex when writing a sexual assault report.” And “to recreate the reality…from the victim’s perspective, ‘word pictures’ in a written report must rely on the language of non-consensual sex.”
  • Page 22: “[I]investigators can elicit a detailed description…which provides clues about what the victim was experiencing. This is especially important when the description matches up with the victim’s account of events, including everything that the victim was thinking and feeling at the time.”
  • Page 34: “[I]nvestigators can minimize the risk of contradiction by not writing a detailed report for any victim or witness who has already provided a detailed, written summary of events.”

In short, the manual advises police to slant the report, cast the encounter as non-consensual, emphasize subjective factors, and conceal inconsistencies—all the while considering how to counter defense strategies.

EVAWI manifests a combination of “victim-centered” and “trauma-informed” approaches which, in a 2018 Open Letter, over 150 professors and legal experts called a “virtual chicken soup of quasi-diagnoses such as…‘fragmentation of memories’.” A current petition seeks to return police investigations to fact and away from selective and biased reports.

The DOJ is changing. The Mueller report and growing calls for internal investigations may occasion more shifts away from FBI methods that arouse accusations of bias. As part of that shift, the DOJ’s funding of a project that rejects due process should be abandoned.

Categories
Uncategorized

Victim-Centered, Trauma-Informed Approach Defies Requirements for a Fair and Impartial Title IX Process

VICTIM-CENTERED, TRAUMA-INFORMED APPROACH DEFIES REQUIREMENTS FOR A FAIR AND
IMPARTIAL TITLE IX PROCESS By Margaret Valois, Esq.

During a Title IX investigation on college campuses, accused students must
bear the lion’s share when dealing with ambiguous and contradictory policies
and procedures. For example, the University of Virginia promises accused
students a “thorough, fair, and impartial investigation.” The sexual
misconduct policy goes on to explain that the investigation will be carried
out by an investigator who also “protects the safety of Complainants and the
University community while promoting accountability.”

In practice, the only party being held “accountable” under this policy is
the accused student. Unfortunately, the average student is not sophisticated
enough to decipher the contradictory promises being promulgated by their
school.

Accused students may receive notice that they have been named in a complaint
via an informal text message. Invited to come by the Title IX office and
discuss the events of a certain evening, an unsuspecting student will likely
go alone to discuss the allegations levied against him, trusting in a
process promised to be fair and respectful for both accusers and the
accused.

What colleges are not sharing with accused students is that the deck is
stacked against them from the minute the complaint is filed. Many schools
subscribe to an increasingly popular approach to sexual misconduct
investigation and adjudication known as “victim-centered” or
“trauma-informed.”

What is a “trauma-informed” investigation? A presentation titled “What It
Means to Be “Trauma-Informed” instructs university investigators, counselors
and hearing panel members to rationalize contradictory statements, memory
gaps, and inconsistent behavior exhibited by complainants as symptomatic of
life-threatening trauma. As a result, all scrutiny is applied to the accused
student.

This approach was promoted by the Obama administration in its 2014 Questions
and Answers on Title IX and Sexual Violence, and in 2015 the Office of Civil
Rights reached a Resolution Agreement with the University of Virginia. This
agreement delineated that institutions are required to provide
trauma-informed training for all parties involved in investigating and
adjudicating sexual misconduct complaints. Failure to do so could result in
the loss of federal funding (i.e., student loan dollars).

Organizations such the Association of Title IX Administrators (ATIXA)
provide training based on trauma-informed ideology. Its guide, The 7 Deadly
Sins of Title IX Investigations, identifies a trauma-informed approach as
the first rule of an effective Title IX investigation. The report identifies
ways in which investigations should support complainants, going so far as to
suggest stress-balls and stuffed animals as therapy for dealing with the
stress of answering questions about the allegations made.

In its victim-centered rush to support complainants, the ATIXA report fails
to explain the real purpose of an investigation: to discover, what, if
anything, occurred that violates the school’s sexual misconduct policy. If
an investigation is approached from the position that a traumatizing event
has occurred and that the accusing student is the person who is traumatized,
then the accused student is already presumed to have caused that trauma.
This model flies in the face of Title IX , which requires “equitable
resolution” of complaints of sexual misconduct.

Consistent with victim-centered ideology, Title IX investigators are known
to include false or misleading information in their reports, in order to
enhance the purported trauma suffered by the complainant, thereby making the
accused student appear guilty. Here’s an example that recently came to my
attention:

During an investigation at a large university in the in the Southeast, the
Title IX investigator included fourteen times in her report that the
Respondent admitted to pinching the Complainant’s nipple. Upon review of the
entire audio recording of the initial interview, it was revealed that the
Respondent never once said the word, “nipple.” The investigator was forced
to correct her report. The investigator also omitted that the Complainant
had kneed the Respondent in the crotch, inflicting serious pain and
humiliation.

“Victim-centered” and “trauma-informed” approaches foster a practically
insurmountable presumption that the complaining student is a victim who must
be treated deferentially so as not to inflict more trauma than what they
have already endured. In contrast, Title IX requires “equitable resolution”
of complaints of sexual misconduct. But as schools are increasingly
employing trauma-informed techniques, that requirement is becoming
unattainable. Only when there is a return to the presumption of innocence
and investigations are carried out to discover the facts and not to protect
purported victims can the Title IX requirement be met.

Margaret Valois is a Virginia-based attorney who has advised both accused
students and complainants in Title IX adjudications.

Categories
Campus Sexual Assault

Victim-Centered Investigations in Title IX Disciplinary Proceedings: A Litigator’s Perspective

Since 2011, I have represented upwards of 100 falsely accused students in Title IX disciplinary procedures at universities across America. I also have filed over 20 lawsuits against Universities that erroneously suspended or expelled students who were alleged to have engaged in sexual misconduct.

These lawsuits have a common thread shared by hundreds of other lawsuits, including two by parents of students who committed suicide. That common thread is the denial of basic due process protections that any person accused of sexual misconduct in America would expect. These lawsuits document how basic due process protections have been removed by University investigators and adjudicators who stack the deck in favor of accusing students.

This favoritism towards accusing students often springs from Title IX training materials provided to investigators and adjudicators. I know because I see these training materials in my clients’ lawsuits. The training materials teach Title IX staff that from the very beginning of the process, they should favor accusing students over accused students by implanting concepts such as:

  • Start by Believing
  • Victims Don’t Lie
  • How to conduct ‘victim-centered’ investigations

It is important to note that I am a reluctant advocate for accused students. I spent five years as the executive director of a Christian non-profit organization bringing micro-finance and fair-trade programs to sex trafficked women and at-risk women and girls in Asia, Africa, and North America. My experience working with the women, some in their early teens, caused me to have zero tolerance for sexual exploitation of females.

My experiences in some of these countries also caused me to observe the adverse impacts these women experienced as a result of the powerful forces that worked against them.

The Start by Believing training materials that I’ve seen trigger harmful, predetermined outcomes of a different sort. This is because University policies promise fair and impartial proceedings with cross-examination and the ability to present exculpatory evidence. But in reality, these rights are routinely denied.

I want to provide two examples how Start By Believing training  programs have caused college investigators and adjudicators to violate our most fundamental  ideas of due process, by excluding evidence  that proves the accusing students’ allegations are false.

In the first case, a hearing panel of university employees rejected every one of the 264 cross-examination questions that the accused student sought to ask his accuser and the university’s witnesses, even though the university’s handbook allowed for such questions.

When asked why the panel didn’t ask any of the 264 questions, the hearing panel admitted, The questions didn’t matter because the answers would not change their mind that the accused student was guilty.

How did the hearing panel know that none of the yet-to-be-given answers to the 264 questions would have changed their minds? As detailed in the lawsuit that followed, the reason was a belief that the university must favor the accusing students regardless of whether the accused student was innocent.

In a second case, a student was accused of engaging in sexual misconduct. During the course of the investigation he presented:

  • Polygraph expert testimony that he never engaged in the sexual misconduct alleged.
  • Toxicologist expert testimony that proved it was impossible for the accusing student to have been in the incapacitated state she claimed was in when she engaged sexually with the accused student.

Nonetheless, the university panel refused to ask any of the cross-examination questions that the accused student proposed. The hearing panel later found him “responsible” and suspended him.

Why did a hearing panel that was charged with administering justice in a fair and impartial way reject facts proving the accused student was innocent?  My experience pointed to one very clear conclusion: that no amount of evidence was going to change their predetermined position that they must believe the accusing student.

Unfortunately, these two cases are not isolated instances of how Start by Believing training has caused college investigators and adjudicators to violate our most fundamental ideas of fairness.

I know this because on multiple occasions, my clients have asked hearing panel members if they received Start by Believing training on how to conduct hearings that will not “re-traumatize” the accusing student. And on far too many occasions, hearing panel members admit they have been trained in ways that protect accusing students from having to respond to questions or evidence that prove he or she is lying.

And until these practices are reversed, there will more suicides, destroyed lives, and needless lawsuits. I hope others will join me in looking for solutions that treat both accusing students and accused students in a fair and impartial manner.

Categories
Uncategorized

A High-Ranking Police Officer Looks at Sexual Assault

The Kavanaugh hearings drove the problem of sexual assault way up on the national agenda.  Should we believe women complainants and thus disbelieve accusee men?  Start By Believing, an activist group with cells all over the country, would seem to hold yes. A prominent law academic is explicit on this matter.  A sexual assault complaint, writes Professor Sherry Colb, “is an eyewitness account of a credible person. The denial of the accused rapist, by contrast, is entitled to little evidentiary weight as it is fully explained by a desire to avoid conviction.”  If complaints result in shockingly few arrests and convictions, the argument goes, it is rank misogyny in police and DA offices that is responsible.

I have engaged these arguments in a recently published piece entitled “Why Not Believe Women in Sexual Assault Cases?”  (Touro L. Rev. 2018 v. 4 p. 101)  So I limit myself here to just mentioning a few of the unique factors at play in the sexual domain, especially the guilt, regret, and fear of a romantic partner’s wrath that make evaluating a sexual assault charge far more difficult than, say, one of robbery.

My piece relied largely on writing by academics, with my principal source being law professor and former dean Joan Howarth, who has had extensive first-hand experience sitting on assault tribunals at the university level. Because of the emotional immaturity of an appreciable number of young women, she warns, “`we believe you’ does not translate fairly into individual adjudications.”

To my great surprise, given the volume of work on sexual assault, I found no other professorial opinion founded on such hands–on experience. I was more perplexed to find no accounts by police or DAs, since they, arguably, have the best purchase to speak to complainant credibility.

I think I know why. While drafting my article, I looked for higher-ups among these groups–as well as decision-makers in college sexual assault proceedings–to test my thinking against that of investigators. In every case but one, I was stonewalled; either they simply would not talk to me or they told me candidly that such conversations were not authorized.  I can only conclude that charges of sexism are so explosive in our #MeToo world that a code of silence has to be imposed–anything to minimize the risk that a loose-tongued employee will question the reliability of complainant accounts, an opinion that were it to  appear in blogs or on the front pages, could bring down an organization’s leadership.

Fortunately, I found someone willing to stand up and speak frankly. A high-ranking police officer in a major metropolitan area, this interlocutor has supervised hundreds of sexual assault investigations by more than 30 police officers over a number of years.

The following interview took place over about two hours earlier this winter and was preceded and succeeded by a number of phone conversations.  The material below is not a verbatim account; I have had to rearrange the free-floating dialogue for clarity of exposition. But what follows is as fair and comprehensive account of the interview as I can manage, given that I did not tape it out of fear that the conversation would be stilted.  To make sure that I got it right, I asked my interlocutor to look over my draft.  No one in the law professoriate can fail to understand why the servant of the people does not want to be identified.

——————————————–

Who are the complainants demographically?

They run the gamut of race and class, the numbers being proportionate to the population at large. In age, they run from 18 to 40. Eighty percent or so are by people who are known to one another; 20% are by strangers. The latter are the easy cases once we find the culprit.  

Let’s focus on the harder cases.  Do students make up a share of the complaints you see?

Mostly not.  Those cases seem to be handled by the universities, at least in my jurisdiction.

How exactly do these cases come to you?

Quite often after the Event the woman does not know what to do. She wonders whether she made some bad decisions long the way. Should she have posted risqué pictures on social media? Made a Tinder date at the man’s apartment or her own?  Likely, she says nothing except to those very close to her. Through our new FETI program (Forensic Investigation Training and Interviewing) program, we are trying to get these women to go public quickly.  Often, however, complaints are filed days, weeks, months, and in some cases years later, when one or more friends or an anti-rape activist convinces her that she was assaulted and that it is her duty to come forward. The woman will often yield to this kind of pressure, among other reasons, because, sad to say, she seeks the psychological comforts of victimhood, of survivor status, where she is not alone in her predicament and has a cause to rally around.         

What a story.  What happens after a woman files a complaint with your office?

We take these complaints seriously; there are a lot of bad actors out there. We open a file and take down the information, asking specifically about marks left on the body and about witnesses.  Most often there are none of either.  We then grill the accused. We search databases for a criminal record. We want to get at the truth. You might be interested to know that it is not unusual for us to send a detective across the country to interview the accused.

What does the accused say?

He will most frequently, and not incredibly, claim that the sex was consensual. Since intercourse is most often preceded by consensual play, this puts us in a difficult position. Rape kits have proved helpful in a number of cases, but the existence of semen says nothing about whether the sex was consensual.

And if there is no corroborating evidence?

This happens most of the time because sex takes place in private and no bruises or other indicia of assault are present. We try to set up a “controlled call” with the accused. This requires the woman to phone the accused and try get him to implicate himself. Sometimes this works, but sometimes the woman refuses to go along. This gets in the way of our investigation.  Other times the man insists on a meeting. We are cautious here; we are concerned that the woman will be hurt. But we do this because there is no other way. In such cases the woman goes wired up.     

What happens if in the end the investigation is stymied?   

Absent peculiar circumstances, we have to explain why we cannot go forward. This is sometimes hard on complainants, but they usually see that we have tried.

Really?  How many complaints would you say end up in arrests?

Maybe 30%.

You know that the law does not require corroborating witnesses.

Of course, but some kind of corroboration is necessary when a man presents credible evidence of consensual sexual play, say through TV monitors or witnesses. We cannot arrest the accused on just the woman’s say-so.    

Is this why cases attrit to the extent they do?

There is more. A large number of women complainants simply do not understand the legal system in general or the requirements for sexual assault, in particular, including the difference between pressured and forced sex. They often think, for example, that just feeling violated establishes sexual assault. Or that if they have consumed a great deal of alcohol—which they have in maybe two-thirds of cases–they cannot be blamed for having consented. Of course, this is silly. They often drink precisely to get in the mood for sex. The man, moreover, has drunk the same amount as she has. Of course, if the woman has passed out there can be no consent.    

What happens when the woman is determined to press her case?

Many women are shocked to find out that they will have to confront the accused in court and thereby open themselves up to the risk not only of having their views challenged but also of having details of their behavior exposed.  They will then often recant or simply refuse further cooperation. They might do the same when they find out that the accused, whom they know, might be incarcerated. I am not speaking for all women of course. A good number of complainants follow through til the end, hence the 30% data point.  

A feminist might wonder whether you have women investigators on staff and, if so, whether they come down differently in these cases from the men.

We have women detectives, but there are no differences I can think of. Police in this area are so well trained professionally that complainants speak comfortably and candidly to them.

As a follow-up to this interview, I would like to talk to some of these women some time. Would you put me in contact with some of them?

Gladly.

Are there differences between how you look at these cases and how DAs do?

No, we work very closely with them and are almost always on the same page.

Why have you stuck your neck out to talk so frankly to me?

It is important to alert the public to the fact that the sexual assault data—including the one-in-five claim–are wildly inflated. Notwithstanding claims by activists, women need to know that the world is not as harsh as many claim it to be.  There are dangers out there, of course. But to the extent of such danger, women can and have to look out for themselves as when they get intoxicated and are alone with a man in an intimate setting. This raises expectations and this may make the woman feel more guilty if she does not follow through.  We need to educate women that, because of difficulties of proving the case, the authorities may not be able to help much in these cases.

Are you “Blaming the Victim?”  

Not at all; I am saying only that we are helped best when we help ourselves.

 

Source: https://lawprofessors.typepad.com/crimprof_blog/2019/04/guest-post-by-dan-subotnik-a-high-ranking-police-officer-looks-at-sexual-assault.html

Categories
Believe the Victim Campus False Allegations

I Was a Victim of a ‘Victim-Centered’ Investigation

I am a former cadet at the United States Military Academy at West Point, New York. In July 2011, during summer training at Camp Buckner, I was taken to the military police station shortly after arriving back from a rigorous field training exercise. I was dehydrated, sleep deprived, and hadn’t eaten.

I was informed that I had been accused of sexual assault from an alleged incident that had occurred six months before. I then endured a two-year investigation that culminated in a general court martial where I essentially faced life in prison. Although I was found innocent of all the sexual charges, I was kicked out of the Academy in June 2013, the summer preceding my senior year.

While I do not know if West Point had formal victim-centered policies pertaining to sexual assault cases, I believe the Academy engaged in victim-centered practices throughout my investigation.

One of the hallmarks of victim-centered approaches is prioritizing the safety, privacy, and well-being of the “victim.”

Throughout the investigation, my accuser was treated with respect, while I was often treated with hostility. It became apparent early on that my personal well-being was not a priority. My accuser was assigned a victim advocate who escorted her around campus. She was afforded health and welfare checks to ensure that she was coping with the process.

I was never provided such support. In fact, my five-hour initial interrogation took place immediately after a multi-day field training exercise. The investigators essentially took advantage of my weakened state.

While I was afforded a full criminal investigation and trial, it was clear that there was a predetermination of guilt. During my initial interrogation, the interviewing agent was hostile, and used leading questions in an attempt to reshape my statements until they fit his preconceived narrative.

The agent’s questionable conduct was confirmed during the trial by witnesses. In her testimony, one cadet described her interview as a “frustrating and hostile environment.” She testified that “he would ask me what happened, but then he would tell me what to say. I would give an answer, and we would argue with me about my answer…I wanted to get out of there because it was so uncomfortable.” Another cadet stated that “the way [the agent] asked questions was really aggressive. He wouldn’t move on from a subject until he got what he wanted.”

Victim-centered practices often overlook the complainant’s inconsistent or untruthful statements, and attribute such inconsistencies to trauma.

At trial, my accuser committed perjury about the incident, but was later allowed to graduate without punishment. Testifying about the blood she claimed was left in the bedroom after our consensual sexual encounter, my accuser testified, “there were 4 or 5 streaks…24 inches wide, 6 inches deep blood streaks along the side of the bed.” She further testified that her roommates stated that they were “grossed out” by the blood. But all three of my accuser’s roommates denied seeing any blood in the room or making any such statements.

Sexual misconduct investigations are difficult for all parties involved and lives can be ruined if they are not handled properly. This is why it’s important for investigators and adjudicators to treat all parties impartially. Fundamental fairness is a cornerstone of our justice system. But victim-centered practices only focus on the well-being of one individual, the accuser.

The due process rights of accused students have fallen by the wayside because people fail to consider the impact these investigations have on accused individuals. Throughout my investigation I battled severe depression and even suicidal ideations, which continued for years after my investigation. I had to deal with the social stigma attached to my situation because people often presume guilt based on the seriousness of the allegations. I lost a lifelong dream of serving in the Army and the opportunity to finish my degree at a prestigious institution. My friends and family also suffered throughout my ordeal.

Sexual assault investigations should be approached impartially and fairly. While protecting alleged victims is important, it does not mean that we need to compromise the integrity of investigations by providing preferential treatment.

I was lucky to make it out alive. But many individuals don’t have the support network that I had or the resources to combat mishandled investigations. As a society, we should rely on the facts and maintain impartiality because lives are at stake.

Categories
Start By Believing Victim-Centered Investigations

‘Start By Believing:’ Good for Counselors and Therapists, Bad for Detectives and Investigators

Start By Believing is an investigative philosophy that has received millions of dollars in funding from the U.S. Department of Justice over the years.[1] Start by Believing describes itself as a “global campaign transforming the way we respond to sexual assault.”[2] Its basic message is simple: Persons who come forward to report their assault should be treated with courtesy and their complaint taken seriously. And no one would disagree with that admonition.

But Start By Believing also seeks to fundamentally change the way investigators and detectives conduct their investigations. Ethical codes require investigators to approach their work with impartiality, honesty, and fairness.  For example, the code of the International Association of Chiefs of Police states, “The law enforcement officer shall be concerned equally in the prosecution of the wrong-doer and the defense of the innocent. He shall ascertain what constitutes evidence and shall present such evidence impartially and without malice.”[3] [emphasis added]

This article reviews three Start By Believing documents and highlights selected factual and logical flaws.

1. The foundational report of Start By Believing is titled, “Effective Report Writing: Using the Language of Non-Consensual Sex.” Let’s consider the wording of the title: “Using the language of non-consensual sex.” This phrase sends an unmistakable message that the investigator should slant his or her investigative conclusions in order to conform to that ideological imperative.

Accordingly, investigators are supposed to begin with an “initial presumption” of guilt,[4] a step that research has shown to contribute to tunnel vision, faulty investigative conclusions, and wrongful convictions.[5] Investigators are then expected to focus on witness statements that “corroborate the victim’s account” — this phrase is repeated multiple times throughout the Effective Report Writing document.

If the document’s intent still is not crystal-clear, the manual tells investigators to make sure the incident does not “look like a consensual sexual experience” (pages 15-16) by making the complainant “appear more innocent” (page 13). So if it turns out it was the complainant who initiated the sexual encounter, that inconvenient fact might be omitted from the final report.

2. A second report from Start By Believing is titled “False Reports: Moving Beyond the Issue to Successfully Investigate Non-Stranger Sexual Assault.” Just like the “Effective Report Writing” manual, this document’s title betrays its real purpose, which appears to be to:

  1. Dismiss any real possibility that the allegation may be false, and
  2. “Successfully” prosecute sexual assault — “successfully,” of course, is understood to mean a conviction is reached.

In allegations of non-stranger sexual assault, the central issue, in most cases, is whether the sexual encounter was consensual or not. Amazingly, the issue of how to determine the consent of parties to engage in sex is not addressed. Upon reflection, this is not surprising when we consider the title of the first publication, “Effective Report Writing: Using the Language of Non-Consensual Sex.” If non-consensual sex is a predetermined conclusion, obviously there is no need to address the issue in a publication on “False Reports.”

“Confirmation bias” refers to the tendency of investigators to take mental short-cuts and seek out information that confirms their initial “hunch” that a certain suspect is indeed the culprit.[6] The “False Reports” document does concede that investigator confirmation bias can be a problem. But then the document turns truth on its head, claiming that the “reality” of “confirmation bias” is the implicit bias of criminal justice personnel against victims of sexual assault. This surprising conclusion is not backed up not any government survey or research study published in a peer-reviewed journal. Rather, it comes from an opinion piece written by a police captain from West Hartford, Connecticut and published in the Police Chief Magazine.[7]

3. The report, “Understanding the Neurobiology of Trauma and Implications for Interviewing Victims“ endorses the claim from “trauma-informed” advocates that sexual assault claimants may give inconsistent accounts of the incident because of faulty cognitive encoding caused by the “trauma” of the incident (page 31). [8] But neurobiology experts have disputed that claim. For example, Susan E. Brandon, PhD and Sujeeta Bhatt, PhD have written:

“Current data do not support the notion that trauma memories are different from other autobiographical memories – in fact, research shows that trauma and non-trauma memories do not differ, at least in healthy populations…There is some evidence that fear memories are [actually] richer in sensory details.”[9]

The frosting on the cake? All of the Start By Believing documents refer to “victims,” never “accusers” or “complainants.” George Orwell would be impressed.

It is appropriate for counselors and mental health professionals to use Start By Believing methodologies. But detectives and investigators are not therapists; their job is to uncover the truth of the allegation in an impartial and objective manner.

Citations:

[1] https://www.evawintl.org/grants.aspx

[2] https://www.startbybelieving.org/home/

[3] http://ethics.iit.edu/ecodes/node/3352

[4] https://www.startbybelieving.org/wp-content/uploads/2018/08/Military-Action-Kit.pdf

[5] https://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/policy_research/pdf/Macfarlane_Wrongful-Convictions.pdf

[6] https://scholarworks.waldenu.edu/cgi/viewcontent.cgi?article=1406&context=dissertations

[7] http://www.policechiefmagazine.org/implicit-bias-and-law-enforcement/

[8] https://www.evawintl.org/Library/DocumentLibraryHandler.ashx?id=842

[9] http://www.prosecutorintegrity.org/wp-content/uploads/2019/03/AIR-FORCE-FETI-STUDY.pdf , Exhibit C

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Uncategorized

Trump administration is still funding ‘trauma-informed’ pseudoscience in rape investigations

Office of Violence Against Women won’t turn off the spigot

 

The Air Force said there was no “empirical evidence” to back its claims and it was based on “flawed science.” Arizona said it “creates the possibility of real or perceived confirmation bias.”

Nearly 160 scholars and legal experts, including two Harvard law professors and the co-founder of the Foundation for Individual Rights in Education, said it undermines the “objective collection and presentation of evidence in administrative, civil, and criminal sexual assault proceedings.”

Even a California judge scolded the University of California-Santa Barbara for using it in a Title IX proceeding.

Yet the Start By Believing campaign, which uses “victim-centered” investigations, “trauma-informed” theories and “believe the victim” mantras, continues to draw taxpayer money in its quest to predetermine the results of sexual misconduct investigations.

U.S. Attorney General William Barr must turn off the Justice Department spigot toward programs that undercut the professional codes governing these investigators, which require them to conduct their work in “an impartial, unbiased, and honest manner,” the Center for Prosecutor Integrity told the AG in a letter Wednesday.

Barr must step in because the center has hit a brick wall with the DOJ office identified as having jurisdiction over its request: the Office of Violence Against Women, “the same DOJ component that has provided much of the funding for Start By Believing.”

MORE: Judge rebukes UCSB for using ‘trauma informed’ approach in Title IX

The center’s sibling nonprofit, Stop Abusive and Violent Environments, also recently sought to get Barr’s attention by publishing a Change.org petition that demands the revocation of federal money from Start By Believing programs.

The roots of the campaign go back 13 years. Start By Believing’s institutional home, the nonprofit End Violence Against Women International, published a report recommending a stark shift away from conventional interview techniques when the subject is nonconsensual sex.

It emphasized techniques that are likely to lead to conviction, undermine “potential defense strategies,” ignore red flags for false allegations, focus on statements by accused people that “provide an implausible or even absurd version of reality,” and discount inconsistencies in accusers’ statements.

The report goes so far as recommending that investigators avoid writing detailed reports in order to “minimize the risk of contradiction” by accusers, and that they play down exculpatory statements, including anything that makes the incident look like a “consensual sexual experience.”

Start By Believing launched five years later, and the vast majority of its grants have come from the Justice Department, though its nonprofit also received DOJ money in the years before the campaign launched.

“The DOJ continues to provide funding for conferences at which Start By Believing concepts and methods are taught” to criminal justice professionals, the center told Barr, including the trauma-informed methods that have drawn scrutiny from journalists and neuroscience experts as pseudoscience.

MORE: RBG says colleges railroad accused students

The letter cites federal and state scrutiny applied to such science-ish ideas.

An Air Force investigation in 2015 concluded that a technique known as “forensic experiential trauma interview” is not a “viable option” for its investigations. It said FETI supporters make “unfounded claims about its effectiveness” and use “flawed science” to cover up the fact the FETI “has never once been tested, studied, researched or validated.”

It also cites Arizona’s warning to prosecutors in the state in 2016 not to use Start By Believing techniques, because it could ruin their prosecutions if defense lawyers know that investigators are being told to enter an investigation with preconceived beliefs.

If Barr needed any more convincing that Start By Believing has no place among programs supported by the Justice Department, he should look at last fall’s statement signed by nearly 300 law professors, legal experts and scholars on due process in campus investigations.

It noted both the American public and progressive icon Justice Ruth Bader Ginsburg are on the record in support of protections for accused students that colleges largely withhold from them.

Start By Believing methods are appropriate for counselors and mental health professionals, not investigators, the center implores Barr. They contradict the very mission of DOJ, “to ensure fair and impartial administration of justice for all Americans,” and undermine the public trust in the system.

MORE: City pays $85K to accused student for pro-accuser investigation

Categories
Campus Due Process

Tell Sen. Patty Murray: ‘Due process IS America’

Tomorrow  morning, the Senate HELP Committee will hold a hearing on ” Addressing Campus Sexual Assault and Ensuring Student Safety and Rights.” https://www.help.senate.gov/hearings/reauthorizing-hea-addressing-campus-sexual-assault-and-ensuring-student-safety-and-rights

In the past, Sen. Patty Murray, who is the highest ranking Democrat on the Committee, has pushed the “one in five” fake statistic in order to justify the existence of the campus Kangaroo Courts.

Somehow, Murray has forgotten that all Americans, including college students, are guaranteed due process by the Constitution.

So please telephone Murray’s office at (202) 224-2621. Tell her, “Due process IS America!”