Month: October 2019

Training for Title IX investigators lacks tested, effective techniques

Post author By saveadmin
Post date October 29, 2019

Date:: October 28, 2019
Source:: Iowa State University
Summary:: Interviews are the central component of any Title IX investigation, but new research finds the techniques investigators are using may not be the most effective. Researchers evaluated the available training programs for investigators and identified techniques and suggested practices at odds with science-based interviewing strategies.

Interviews are the central component of any Title IX investigation, but new research finds the techniques investigators are using may not be the most effective.

Iowa State University researchers Christian Meissner and Adrienne Lyles evaluated the available training programs for investigators and identified techniques and suggested practices at odds with science-based interviewing strategies. Lyles, associate director of Equal Opportunity, senior deputy Title IX coordinator and associate teaching professor in philosophy at Iowa State, says the findings, published in the Journal of Applied Research in Memory and Cognition, are consistent with her experience.

“The training is not comprehensive. Many of the programs I attended were offered by for-profit companies and law firms,” Lyles said. “The law firms focused on how to avoid litigation and the for-profit companies were very generic and not evidence- or research-based practice.”

Lyles and Meissner, a professor of psychology, started working together to address these weaknesses and recommend a set of evidence-based practices for Title IX investigative interviews. Meissner leads an international research team developing interview methods for the FBI, CIA and other law enforcement agencies to reduce false confessions and effectively gather information. He says the techniques work in any type of investigation.

“The goal of any investigative interview, regardless of who you are interviewing, is to gather a complete and accurate recollection from a subject in a manner that will move an investigation forward,” Meissner said. “These techniques are very effective at providing people an opportunity to tell their story absent any preconceptions or biases on behalf of the investigator.”

Building rapport, trust

Title IX procedures are in place to protect students from discrimination and harassment, Lyles said, and the process and purpose are very different from the criminal justice system. There is a greater focus on education rather than punishment. To ensure due process and neutrality, she says investigators must be impartial when interviewing the complainant, respondent and witnesses. Ultimately, investigators must assess the credibility of a complaint and determine if there is a violation of Title IX policy.

Some of the training programs Lyles and Meissner examined suggest that investigators can determine the veracity of a Title IX complaint by watching the behavior of the respondent during the interview. The researchers say there is no evidence to support the effectiveness of such an approach. They also found no scientific evidence that victims and perpetrators have different neurobiological responses to the same event, as some programs claimed.

Meissner says using evidence-based techniques can help investigators build rapport and trust to elicit as much information as possible and facilitate memory recall. It is important for Title IX investigators to get a complete and detailed account during the initial interview so the individuals involved do not have to tell their story multiple times. By asking the right questions and using evidence strategically, Meissner says they can accomplish those goals.

“By asking open-ended questions, investigators avoid inserting any bias,” Meissner said. “If they have information from social media, video surveillance and witnesses, they can use that evidence strategically to assess credibility of the subject and verify the information they have collected.”

Recommendations for investigators

In the paper, Meissner and Lyles outline the following recommendations for developing evidence-based interviewing best practices for Title IX investigations:

Limit bias during the interview: Investigators should utilize interview approaches to limit biased or leading questions and not presume the respondent engaged in misconduct.
Develop rapport and facilitate cooperation: An empathic, nonjudgmental and collaborative approach can facilitate conversation and reduce reluctance to cooperate.
Enhance retrieval of accurate information from memory: Research has consistently shown the value of open-ended questions, followed by relevant probe questions (who, what, when, why).
Use strategic questions to assess credibility: Asking subjects for verifiable details and using strategic questioning approaches that facilitate memory and reporting can significantly improve assessments of credibility.

Lyles says Iowa State has developed a standard practice guide incorporating science-based investigative interviewing techniques. By sharing this information, she hopes other schools will do the same.

“We’re trying to create some standards for good investigative practice,” Lyles said. “As investigators we are neutral fact-finders. We do not advocate for any party. It is our job to be impartial and unbiased. It is important that the process not advantage or disadvantage any party.”

Story Source:

Materials provided by Iowa State University. Note: Content may be edited for style and length.

VAWA Fresh Start: ‘Trauma-Informed’ Provisions in VAWA are Junk Science

Post author By saveadmin
Post date October 29, 2019

The House version of the Violence Against Women Act reauthorization – H.R. 1585 – features a Demonstration Program on Trauma-Informed Training for Law Enforcement. Section 206 states:

The Attorney General shall award grants on a competitive basis to eligible entities to carry out the demonstration program under this section by implementing evidence-based or promising policies and practices to incorporate trauma-informed techniques.

“Trauma-informed” theorizes that victims of domestic violence and sexual assault are so traumatized by the experience that they are unable to recall key details of the incident, and may offer contradictory accounts.

Despite its intuitive appeal, scientific research reaches a very different conclusion. According to neuroscientists Sujeeta Bhatt and Susan Brandon:[1]

The impacts of trauma on memories and recall are widely variable. The stress accompanying and resulting from trauma may produce strong memories, impair memories, have no effect on memories, or increase the possibility of false memories.

Now, a second article has come out that highlights the dubious science behind trauma-informed. The article is written by Iowa State University researchers Christian Meissner and Adrienne Lyles, who are leading an international research team to develop interview methods for the FBI and CIA to reduce false confessions. The article summary emphasizes:[2]

Rather than relying on hocus-pocus notions of “trauma-informed,” Meissner urges:

By asking open-ended questions, investigators avoid inserting any bias. If they have information from social media, video surveillance and witnesses, they can use that evidence strategically to assess credibility of the subject and verify the information they have collected.

For years, the Violence Against Women Act has been based on unproven criminal justice theories and gender ideology. So it’s no surprise there is no evidence of VAWA’s effectiveness. This time, we have a historic opportunity to take a Fresh Start. We need to assure that VAWA respects Constitutional principles, avoids bias, and is based on solid science.

Citations:

[1] http://www.prosecutorintegrity.org/wp-content/uploads/2019/09/Review-of-Neurobiology-of-Trauma-9.1.2019.docx

[2] Training for Title IX Investigators Lacks Tested, Effective Techniques. Science News. October 28, 2019. https://www.sciencedaily.com/releases/2019/10/191028093945.htm

Title IX

NAS Commends President Trump’s Executive Orders: No More Law by Dear Colleague Letter

Post author By saveadmin
Post date October 22, 2019

Last week President Trump signed two Executive Orders that significantly curb our current rule by bureaucracy – now also known as the Administrative State. The National Association of Scholars commends President Trump for these orders, “Promoting the Rule of Law Through Improved Agency Guidance Documents” and “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.”

The Orders will have implications for colleges and universities and in particular for campus Title IX offices, which have mushroomed alongside expanding governmental agencies.

Title IX refers to the 1972 federal law banning sex discrimination in schools receiving federal funds. Title IX also served as the pretext for vast administrative expansions under the Clinton and Obama administrations. The Clinton administration announced that “nondiscrimination” meant parity in funding for female and male athletics; Obama declared that sexual violence should be treated as sex discrimination. In both instances, these Presidents introduced significant policy changes by administrative fiat, sidestepping the legislature and skirting the formal rule-making process required by the Administrative Procedure Act (the APA)—ultimately avoiding democratic input and accountability.

The Obama Title IX directive was especially egregious: Through a 2011 Dear Colleague Letter, the Obama Education Department effectively ordered campus Title IX Offices to investigate and punish alleged sex offenders without due process protections for the accused. As a result, nearly 500 students denied justice are now filing lawsuits against their colleges and universities, claiming they were wrongly accused and denied their due process rights. President Trump’s Education Secretary Betsy DeVos rescinded the Letter in 2017 and is expected next month to issue new regulations, which did receive public comment and input.

President Trump’s Executive Orders take direct aim at this practice of law by Dear Colleague Letter – or law by any such informal document that skips the steps necessary for democratic legitimacy. The first Order, “Promoting the Rule of Law Through Improved Agency Guidance Documents, requires that any guidance statement from a federal agency be publicly posted and accessible in an online agency database, with the clarification that it is not binding law. The second Order, “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication, allows agency enforcement action only when those affected have had the opportunity to respond to such action and when the public has had prior notice of the agency’s jurisdiction and standards for legal conduct.

Much attention has been paid to judicial activism, where judges read their preferred policies into statutes or the Constitution, resulting in law by judicial fiat. But law by bureaucracy is just as pernicious and perhaps more insidious. The bureaucracy, unlike the judiciary, is often nameless and faceless. The result in both cases is the same, of course: Depriving citizens of a government of, by, and for the people. NAS supports measures to prevent this and thanks President Trump for this executive action.

Violence Against Women Act

The Long March to Turn Every American into a Victim of Domestic ‘Violence’

Post author By saveadmin
Post date October 22, 2019

When the Violence Against Women Act was first passed in 1994, pretty much everybody agreed with the dictionary definition of violence: a “behavior involving physical force intended to hurt, damage, or kill someone or something.” Accordingly, the original version of VAWA defined domestic violence (DV) as “felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim.”

Then the advocates went to work at the state level. Before long, terms like “fearful” and “afraid” began to pop up in statutory definitions. Some states went even further:

New Jersey: Any intrusion into your “well-being”
Illinois: “interference with personal liberty”
California, Delaware, Michigan, Montana, and Virginia: The mere feeling of “apprehension” of harm qualifies you as a victim of domestic abuse

But the victim advocates weren’t satisfied. So they convinced the DOJ Office of Violence Against Women to publish this sweeping definition:

A “pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”

This unauthorized characterization later was removed from the OVW website.

During the 2013 VAWA reauthorization, the DV advocates succeeded in expanding the law’s definition to encompass “dating violence, sexual assault, and stalking.”

But the advocates weren’t done.

During the current VAWA reauthorization, they expanded “domestic violence” even more. H.R. 1585 enumerates the following as types of domestic violence: Verbal abuse, emotional abuse, financial abuse, and technological abuse. “Verbal” and “emotional” abuse are not defined in the bill.

When you think about it, the possibilities are endless. Do a Google search, you’ll find information about “silence abuse.” According to the National Domestic Violence Hotline, “spiritual abuse” is reportedly “no less difficult to endure than any other kind of abuse.”

So what happens when domestic violence becomes so elastic and amorphous that every American becomes classified as a victim?

A serious problem becomes trivialized — if everything is domestic violence, nothing is domestic violence.
Scarce resources become diverted away from the neediest victims.
All-encompassing definitions open the door to government intrusion into trivial matters and encourage false allegations.

As part of the VAWA Fresh Start, we need to consider the harmful effects of the decades-long push to expand and water-down definitions. We need to ponder whether the trend is helping or hurting the real victims of domestic violence.

Title IX

Trauma-Informed Dispute

Post author By saveadmin
Post date October 17, 2019

Investigators of campus sexual assaults usually avoid bluntly asking victims to recall their attacks in vivid detail. This “trauma-informed” approach is used widely in investigations and is based on the belief that officials should not subject rape survivors to reliving such disturbing experiences without an empathetic ear.

The theory of trauma-informed care also offers an explanation as to why survivors might behave oddly in an interview, such as remembering only vivid details or describing them out of order when discussing their assault. Campus administrators say using this investigative practice is the best way to gather information and figure out the timeline of an incident without greatly upsetting a victim.

The association representing college administrators who investigate and adjudicate sexual violence cases on campuses has suggested some officials have taken this approach too far.

The Association of Title IX Administrators — named for the federal law banning sex discrimination on campus — published a statement last month contending that officials have sometimes not conducted thorough investigations into sexual assault claims. ATIXA says there have been cases when officials overlooked a lack of evidence in a sexual assault case because they believe trauma-related symptoms exhibited by a sexual assault victim likely prove the incident occurred.

The association asserts there is insufficient research to definitively prove that memory is affected by a sexual assault and how survivors respond to trauma long-term. ATIXA says administrators have “extrapolated” from existing studies far too much.

ATIXA’s claims have enraged some campus-based officials who specialize in the sex-discrimination law and investigate cases, as well as sexual assault survivor advocates. Those critics say ATIXA’s statement is a publicity grab.

“This represents a fundamental misunderstanding of what trauma-informed practices actually mean,” said Taylor Parker, a consultant with Safety Advisors for Educational Campuses LLC and the compliance coordinator and deputy Title IX coordinator at the Ringling College of Art and Design in Florida.

ATIXA released its seven -page position statement last month after association representatives noticed an “unhealthy direction in the field,” according to the statement. The association publishes these statements infrequently — only as a “nuclear option,” when it wants to send a strong message to the entire field, said Brett Sokolow, the association’s president.

The statement notes that the trauma response to a sexual assault is a particularly controversial subject and cites a highly contentious 2017 article in The Atlantic blasting the work of experts who have studied the neurobiology of trauma and calling it “junk science.”

ATIXA’s statement said studies of the trauma-informed approach are incomplete.

“They are interesting to hear and definitely worth our time and thought, but they are perhaps like Copernicus, who asserted the Earth revolved around the sun long before there was any proof that it actually did,” the statement says of researchers focused on neurobiology and trauma. “If you listened to Copernicus in 1514 and decided as a result that heliocentrism was true, you were working off of theory at the time, not empirical science. It would be another 50 years before Kepler and Galileo elevated that theory to an observable working hypothesis. With our current level of neuroscientific understandings of trauma, we essentially are in 1514, and we have a lot of brilliant Copernicans around, but it will be another 50 years until we get to Galileo.”

Activists who defend the rights of those unfairly accused of sexual violence have seized on the Atlantic article and now the ATIXA statement to bolster arguments that the campus processes for adjudicating these cases are biased against the accused and lack due process.

These activists routinely disparage the Obama administration’s 2011 guidance for how colleges should adjudicate sex assault cases. Education Secretary Betsy DeVos rescinded those rules two years ago.

Sokolow said he hasn’t paid attention to responses from these groups, which include Stop Abusive and Violent Environments, or SAVE, and Families Advocating For Campus Equality (FACE).

ATIXA isn’t completely opposed to trauma-informed approaches, Sokolow said, But he’s concerned that it is routinely being used to supersede the investigative process.

At one university that Sokolow declined to name, a panel charged with making a decision on a sex assault case did not ask any questions of a survivor because the group had been advised that doing so would “re-traumatize” her. The accused student was found responsible for the assault but was not punished because he appealed, Sokolow said.

“We don’t want a trauma-informed approach to get in the way of learning evidence,” he said.

Sokolow said association members largely agree with the statement, which was vetted and voted on by ATIXA’s 20-member advisory board before being made public. But Title IX coordinators also believe the statement is “piling on,” Sokolow said.

These coordinators are frequently accused by survivor advocates and due process organizations of botching sexual assault investigations. They’ve also been involved in more court battles as Title IX-related lawsuits have skyrocketed, Sokolow said. This difficult work environment has resulted in high turnover in the profession. About two-thirds of Title IX coordinators have been in their positions for less than three years, according to a 2018 ATIXA survey.

Parker, the Title IX coordinator from Ringling College, didn’t think the statement was a matter of “right message, wrong time,” as Sokolow described it. She said she was angry.

“This is a publicity stunt,” she said, adding that she was not speaking on behalf of the college. “They want to find the next controversial statement and chisel out an area in the market. I think they are creating a problem that doesn’t exist so they can fix it.”

ATIXA’s statement includes a footnote saying that an association kit containing “best practices” for trauma-informed interviews can be purchased by members for free or at a discount. It can be purchased online by nonmembers for $499.

Laura Dunn, founder L. L. Dunn Law Firm PLLC and the survivor advocacy group SurvJustice, also dismissed the report as a publicity stunt.

Dunn said trauma-informed practices can counteract the often discriminatory tactics law enforcement uses to unearth details about sex assaults. The Justice Department outlined bias in the questioning of sexual assault and domestic violence victims during police investigations in a 2015 report.

Dunn said she did not agree with relying solely on victims’ behavior as a way to corroborate that a sexual assault occurred, but that behavior should be noted in an investigation.

“Perhaps ATIXA wants to seem reasonable and middle-of-the-road in issuing this statement, but its drafting and tone are unprofessional and at times pretentious,” she said.

Trauma Informed

Trauma and the Daubert Standard

Post author By saveadmin
Post date October 10, 2019

Plaintiffs claiming they were wrongly expelled for false allegations of sexual misconduct in colleges and universities have repeatedly challenged so-called “trauma informed” interview techniques. Their challenges most often fail: three times in the Federal District Court of Colorado and once each in the Southern District Court of Iowa, the Southern District of Ohio, and District of New Jersey.[1] Even where students achieve some measure of success, courts have warned, “To the extent that … bias against plaintiff stemmed from a purely ‘pro-victim’ orientation [in methods such as ‘trauma-informed’ techniques], that bias did not violate Title IX or the Equal Protection Clause.”[2]

Trauma Informed Methods and Evidence

“Trauma-informed” interview techniques, also sometimes called “cognitive interviewing techniques” or “forensic experiential trauma interview,” are extremely controversial. They were widely adopted by the early 2010s in the military, in law enforcement, and among college administrators.

The champions of these techniques claim that trauma alters human memory: If you’ve experienced “trauma,” you may not have coherent memories and should be treated differently as a witness. As a court summarized one social worker’s claims of expertise in this area:

Faced with trauma, victims go into survival mode and other parts of the brain shut down. Normal questioning is linear and works on the cognitive part of the brain and is based on cause and effect from the beginning of an event to the end. When somebody has been traumatized, … [u]nfortunately, when memory is stored in that way, it is being stored in a fragmented fashion. An initial statement can therefore be fragmented and a victim will fill in the blanks later.[3]

But how to tell “fragmented” memory from evasive, untruthful testimony? Or “filling in the blanks” from “making stuff up”?

Training slides from the University of Mississippi allegedly instructed Title IX officers: “when Complainants withhold exculpatory details or lie to an investigator or the hearing panel, the lies should be considered a side effect of an assault.”[4] This is a recipe for transforming evidence of innocence into its opposite. It is also outright suppressing evidence.

Major Reggie Yager, an Air Force Judge Advocate who took part in the creation of military Special Victim’s Counsel, argues that this also confuses treatment and justice. There is a difference when it comes to the task of caring for alleged victims and the task of justly condemning an accused.[5] Someone seeking help at a crisis center should undoubtedly be met with a presumption of belief. Every effort should be made to “err on the side of caution and be more inclusive.”[6] But tribunals of judgment cannot serve as adjuncts to victim support services and treatment. They must abide by “standards … for punishing people”—among others, the presumption of innocence.[7] Presuming accusations are true is the opposite. Excusing or excluding exculpatory evidence has no place.

Critics of trauma-informed approaches take a more straight forward approach. They simply condemn it as junk science.[8]

Putting Trauma-Informed Techniques to the Daubert Test

Courts have rarely tested “trauma-informed” techniques under the standards required for expert testimony, known as “Daubert” standards.[9] These standards are not very rigorous. Experts usually must be very, very bad for a court to throw them out.[10]

At least one court has expressed skepticism about broad claims made about “trauma” and the human brain. In a putative class action against a Los Angeles school district, the named plaintiffs had suffered undeniably heart-breaking, violent tragedies, and they alleged additional trauma from “extreme poverty, homelessness, and other socioeconomic hardship; and discrimination and racism” (among other sources). Trauma, they argued, caused underperformance in school, and they demanded a court order to force their school system to train all teachers and staff about how trauma affected their “ability to learn, think, read, concentrate, and communicate.”[11]

The court rejected their request. An expert in the neurological effects of trauma supported their demand, but the court remarked only that this was “somewhat novel” and doubted whether “trauma-informed” theories could support disability-rights claims.[12]

On the other hand, the California Court of Appeal affirmed a guilty verdict for crimes arising from spousal abuse and methamphetamine possession after an expert had testified about trauma-informed techniques. The defendant objected to the expert’s reliance on the “trauma-informed” method known as FETI (Forensic Experiential Trauma Interview).[13] The court brushed the objection aside but did not endorse FETI. The victim had “not substantially change[d] her account … did not recant her story, and … was largely corroborated by her eldest daughter.”[14] Whatever the expert’s commitment to trauma-informed method, the actual evidence did not support one of its basic premises—that trauma of the victim impairs the ability to tell a coherent truth. This witness did not need to “fill in the blanks.”

Dueling Experts on Trauma?

Throwing out an expert completely is very difficult. Usually, most parties therefore rebut dubious expert testimony with an expert of their own. This is sometimes called “dueling experts.” One problem, however, is that there is almost no way to challenge the purported expertise that a campus court might invoke.

At the University of Oregon, college administrators relied on expert reports in a case of escalating and changing allegations of misconduct against the accused. One expert supposedly explained how “trauma can affect victims’ memories in a way that could explain the inconsistencies.”[15] The campus judiciary did not allow the accused student to see the expert report, let alone refute it.

An example of dueling experts is a Pennsylvania case currently addressing “trauma-informed” theories of memory and historical sex abuse. Campers at a Cape Cod summer camp have sued as adults, alleging that the camp permitted them to be sexually abused by an older boy. The case will turn on the credibility of plaintiffs’ testimony about events from many years in the past.[16]

Both sides are calling experts. The plaintiffs called a Dr. Pittman, who is expected to testify that sexual trauma may cause Post Traumatic Stress Disorder (which few would find remarkable). But he is also expected to testify about some of the most controversial “trauma-informed” approaches to evidence, for example that the plaintiffs’ allegedly inconsistent account of events can be explained by their trauma.

The court refused to exclude Dr. Pittman, but it also strictly disallowed him from opining about the credibility of specific factual allegations.[17] In addition, the court emphasized that the summer camp could call its own rebuttal expert, who is expected to refute “the idea that traumatic memories may be subconsciously suppressed but accurately recovered many years later.”[18] The plaintiffs, for their part, moved to exclude him.

The court has set up what is called a “Daubert hearing” to decide the parameters of what these experts may testify to and what they may not in front of the jury. The court’s eventual decision may be the first to squarely addresses both the exclusion or admissibility of expertise on “trauma-informed” approaches to testimony and evidence.

Citations

[1] Rossley v. Drake Univ., 342 F. Supp. 3d 904 (S.D. Iowa 2018); Norris v. Univ. of Colo., 362 F. Supp. 3d 1001, 1013 (D. Colo. 2019); Doe v. Univ. of Denver, Civil Action No. 17-cv-01962-PAB-KMT, 2019 U.S. Dist. LEXIS 141523 (D. Colo. Aug. 20, 2019); Messeri v. Univ. of Colo., Civil Action No. 18-cv-2658-WJM-SKC, 2019 U.S. Dist. LEXIS 162010 (D. Colo. Sep. 23, 2019); Doe v. Univ. of Cincinnati, No. 1:16cv987, 2018 U.S. Dist. LEXIS 51833, at *8 (S.D. Ohio Mar. 28, 2018); Doe v. Rider Univ., Civil Action No. 3:16-cv-4882-BRM-DEA, 2018 U.S. Dist. LEXIS 7592, at *29 (D.N.J. Jan. 17, 2018). Doe v. Syracuse Univ., No. 5:18-CV-377, 2019 U.S. Dist. LEXIS 77580, at*20 (N.D.N.Y. May 8, 2019), Norris v. Univ. of Colo., 362 F. Supp. 3d 1001, 1012-13 (D. Colo. 2019), and Doe v. Univ. of Or., No. 6:17-cv-01103-AA, 2018 U.S. Dist. LEXIS 49431, at *47 (D. Or. Mar. 26, 2018). In two of those cases, the court clearly warned that showing bias in favor of alleged victims is not the same as gender bias are exceptions (indicating weakness in the plaintiff’s case for any eventual summary judgment). In Doe v. Syracuse Univ., No. 5:18-CV-377, the Plaintiff on a motion to dismiss had put in his complaint OCR training materials from 2014 promoting trauma-informed techniques to ensure ” to ensure “the protection of girls and women”—i.e., not only to protect alleged victims in gender neutral terms.

[2] Doe v. Univ. of Or., No. 6:17-cv-01103-AA, 2018 U.S. Dist. LEXIS 49431, at *47 (D. Or. Mar. 26, 2018).

[3] People v. Gonzalez, 2018 Cal. App. Unpub. LEXIS 2756, at *9 (Cal. App. 5th Dist. April 24, 2018)

[4] John Doe v. University of Miss., No. 3:18-cv-00063 at *19 (S.D.Miss. Jul. 24, 2018)

[5] Reggie Yager, What’s Missing from Sexual Assault Prevention and Response, 68, avail. at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2697788.

[6] Id.

[7] Id.

[8] Emily Yoffe, The Bad Science behind Campus Response to Sexual Assault, The Atlantic, September 8, 2017, available at https://www.theatlantic.com/education/archive/2017/09/the-bad-science-behind-campus-response-to-sexual-assault/539211/; Sujeet Bhatt and Susan Brandon, A Review of ‘Understanding the Neurobiology of Trauma and Implications for Interviewing Victims:’ Are We Trading One Prejudice for Another? http://www.prosecutorintegrity.org/wp-content/uploads/2019/09/Review-of-Neurobiology-of-Trauma-9.1.2019.docx.

[9] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993)

[10] The Supreme Court has said that where “experts testimony lies within the range where experts might reasonably differ … the jury must decide among the conflicting views of different experts.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153, 119 S. Ct. 1167, 1177 (1999)

[11] P.P. v. Compton Unified Sch. Dist., 135 F. Supp. 3d 1126, 1130-1133 (C.D. Cal. 2015).

[12] Id. at 1142-1148.

[13] People v. Gonzalez, No. F073128, 2018 Cal. App. Unpub. LEXIS 2756 (Apr. 24, 2018).

[14] Id. at *13, *15.

[15] Doe v. Univ. of Or., 2018 U.S. Dist. LEXIS 49431 *, 2018 WL 1474531 (D. Or. March 26, 2018)

[16] R.D. v. Shohola, Inc., 2019 U.S. Dist. LEXIS 136556 (M.D. Pa. August 13, 2019).

[17] Id. at *19.

[18] Id. at *24.

Violence Against Women Act

Clery Act Prohibits Unilateral Changes To Sexual Violence Disciplinary Results

Post author By saveadmin
Post date October 5, 2019

One of the fundamental tenets of the 2013 Violence Against Women Act (VAWA) amendments to the Jeanne Clery Act is that participants in “dating violence, domestic violence, sexual assault, or stalking” disciplinary proceedings should never be surprised that an action is being taken by an institution of higher education. Just like a respondent should never be in the dark about when or if their appeal will be heard, for example, no complainant should receive notice of a change in the outcome of their case they had no idea was coming as a result of extraordinary action being taken.

While the changing of results in response to legal challenges or new evidence isn’t new, with the hundreds of cases brought by respondents in recent years it is becoming more common. In addition to being an important reminder why it is critically important to get these cases right in the first place, it also puts the focus on one of the less well understood VAWA requirements that effectively precludes leaving the complainant out of the loop in these cases.

Under Clery regulations which took effect in 2015, at 34 CFR §668.46(k), institutions are afforded very wide latitude in how they resolve sexual violence allegations, and as a result the definition of “Proceeding” is very inclusive. It “means all activities related to a non-criminal resolution of an institutional disciplinary complaint, including, but not limited to, factfinding investigations, formal or informal meetings, and hearings.” An administrative action, including those that are extraordinary, to change the resolution of a disciplinary complaint readily meets this definition.

Clery regulations apply to the entire process, providing specifically that “a prompt, fair, and impartial process from the initial investigation to the final result” is required. “Result”, as a pertinent example, is a fluid term that covers “any initial, interim, and final decision by any official or entity authorized to resolve disciplinary matters within the institution.” If a proceeding is reopened for any reason the Clery regulations continue to apply if there is the potential for a new “final result”.

The principal requirement at issue then is that in order to be “fair” proceedings must be “transparent to the accuser and accused” (the Clery statute uses these terms which are generally understood to be equivalent to complainant and respondent respectively). As part of this both parties and any decision maker must be provided with “timely and equal access…to any information that will be used during informal and formal disciplinary” proceedings. Additionally, institutions must provide “timely notice of meetings at which the accuser or accused, or both, may be present” if any.

While this does not preclude an institution from taking steps to remedy potential procedural or factual deficiencies that may be identified through a legal action or other means it does mean that such action may not be taken unilaterally without notice to both complainant and respondent that includes access to “any information” to be used. While, consistent with the broad latitude under Clery, there is no set framework for what this must look like it should be “consistent with the institution’s policies”.

If proceedings are reopened then both the complainant and respondent should be afforded an opportunity to examine the information to be used and a meaningful opportunity to be heard in a manner consistent with the institution’s policies. While following Clery guidelines in the first place should generally limit this type of occurrence from ever happening, any exceptional means used to deal with them should be written into policy and disclosed as part of the Clery Annual Security Report policy statements to ensure that institutions have the authority to meet these Clery obligations.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.

https://safecampuses.biz/clery-act-prohibits-unilateral-changes-to-sexual-violence-disciplinary-results/

This is the Clery Handbook Alison referred to.

Chapter 8 in the Clery Handbook:

https://www2.ed.gov/admins/lead/safety/handbook.pdf

Title IX

School rewrites apparent female-only scholarship advertisement after College Fix inquiry

Post author By saveadmin
Post date October 5, 2019

It was purportedly an ‘editorial error’

A majority-women private college recently advertised a new scholarship as being only available to females before claiming that the single-sex designation was a mistake. When pressed, the school would not explain how the mistake was made and whether or not it was wrongly advertised elsewhere.

Ursuline College, a Roman Catholic school located in Ohio, boasts that more than 90 percent of its undergraduate students are female. It offers a variety of scholarships to undergraduate students. The school advertised what appears to be its newest scholarship, Say Amen to College, on Sept. 19 on its website.

The original press release, a screenshot of which The College Fix archived, stipulated that it would be awarded to “female graduates of five Greater Cleveland Catholic high schools.” Recipients receive full tuition for the college’s 2020-2021 school year. The scholarship is renewable for up to three years.

The College Fix reached out to the college to inquire about the legality of the scholarship, asking if the school had any concerns that it violated federal Title IX regulations, which prohibit sex discrimination. A recent study found that a majority of American colleges and universities “facially violate” federal law by offering female-only aid.

Campus spokeswoman Ann McGuire responded by stating that The College Fix had “uncovered an editorial error on my part.”

“Ursuline College’s Say Amen scholarships are indeed available to students from the five high schools listed, who meet the requirements, regardless of gender,” she said. McGuire told The Fix that she had edited the press release to reflect this.

“Ursuline prohibits harassment and discrimination on the basis of certain characteristics, including sex, gender identity or expression, sexual orientation, or any other basis prohibited by federal, state, or local laws,” McGuire continued, adding: “Ursuline is a women focused college, meaning we accept men but, for our undergraduate program, we direct our marketing efforts at women. We do not have special outreach programs for male students but we do market our graduate programs to both women and men.”

Pressed further on why she had initially believed “Say Amen to College” was a female-only scholarship, as well as whether or not the scholarship was advertised as female-only anywhere else, McGuire replied: “Alas, it was my mistake in the news release. All corrected now.”

McGuire did not respond to multiple follow-up emails concerning the scholarship. Deborah Kamat, the school’s Title IX coordinator, eventually responded via email: “As noted, your question has been asked and answered. The College has no further response to provide to you at this time.”

McGuire had also dodged Fix inquiries regarding another Ursuline scholarship that looks to be reserved for females, the “Alumnae Scholarship.” The grant, providing up to $1000 in financial aid, stipulates in its description that the recipient “must be the child or niece of an Ursuline College or St. Johns College alumnae.” The word “alumnae” is the plural of “alumna,” meaning a female graduate.

The Fix‘s report on the recent study of purported Title IX violations involving female-only scholarships found far more gender-specific scholarships are reserved for women than men. For instance, of the 36 states reviewed in that report, Arizona had 161 female-only scholarships, while only three were reserved for men; California had 117 women-only grants, and four for men; and Florida had 112 female-only scholarships and seven male-only ones.

In total, only 16 percent of the schools studied were considered “non-discriminatory.”

Title IX

More Title IX Lawsuits by Accusers and Accused

Post author By saveadmin
Post date October 3, 2019

Istockphoto.com/LIgorko

Universities and colleges are increasingly experiencing legal challenges to their institutions’ Title IX enforcement processes, a trend that higher education law experts say is a natural reaction to proceedings that declare “winners” and “losers.”

The societal pressures from the Me Too movement and repercussions from the Obama administration’s 2011 guidance for how colleges should adjudicate sex assault cases have led to more civil complaints from both alleged victims and accused perpetrators of sexual misconduct who feel they were treated unfairly during Title IX hearing processes. Legal challenges in federal courts exploded following the guidance, which called on universities and colleges to vigorously root out campus sexual assault and harassment with a preponderance of evidence standard, leaving officials to determine if “it is more likely than not that sexual harassment or violence occurred.”

More than one-fourth of 305 Title IX claims analyzed in a 2015 study by United Educators (UE) were challenged by students who either filed lawsuits in the federal courts or lodged complaints through the Department of Education’s Office for Civil Rights (OCR). There’s a consensus among higher education and legal experts that students are increasingly claiming flawed hearings or unfair disciplinary sanctions as a result of procedural failings at their universities, said Jake Sapp, Title IX coordinator and institutional compliance officer at Austin College in Sherman, Tex.

UE, one of the largest insurance providers for postsecondary institutions, also reported that sexual assault was the top liability for colleges and universities in 2018. Payouts resulting from Title IX procedural challenges, which went primarily to victims of sexual assault, surpassed the legal costs of large risks such as wrongful death or negligence and wrongful termination, according to the report.

“Across the board, you have to think that it’s in the back of every administrator’s mind,” Sapp said. “It would be negligent to not be thinking, ‘Am I following the law?’ Especially in such a gray area … If they’re not thinking about lawsuits, they ought to be.”

Civil Claims

Accused students in particular are more frequently turning to federal courts to claim due process violations during Title IX proceedings at public institutions, Sapp said. He noted that while students at publicly funded universities have due process rights in Title IX proceedings and can sue the institutions for violations, students at private institutions don’t have much chance of success at making such claims.

Other accused students have filed suit because of an “erroneous outcome” in their hearing because a disciplinary panel was allegedly biased against them. The students sometimes cite the Obama-era guidance itself, or societal pressures from the Me Too movement as the bases of the bias. Some students file what Laura Dunn, a renowned attorney for campus sexual assault survivors, called a “reverse Title IX” gender-discrimination claim, where male students will argue their university’s process is biased against men. Nearly all accused students in the 2015 UE report were male.

Language in Education Secretary Betsy DeVos’s proposed Title IX rule changes, which were published in November 2018 and are awaiting release, would allow for more of these types of civil lawsuits brought by accused students, said B. Ever Hanna, policy director for End Rape on Campus, an advocacy organization for survivors of sexual violence.

The proposed regulations say that Title IX administrators’ “treatment of both complainant and respondent could constitute discrimination on the basis of sex” and “a respondent can be unjustifiably separated from his or her education on the basis of sex, in violation of Title IX, if the recipient does not investigate and adjudicate using fair procedures before imposing discipline.”

Josh Richards, an attorney who represents colleges and universities in Title IX matters, said legal challenges are inevitable in such emotionally fraught proceedings.

“When you make a campus responsible for adjudicating a dispute between two students, you set up a system where there’s a winner and loser … the loser seeks to vindicate the rights that they feel the school did not vindicate in court,” he said.

In the wake of the shifting Title IX rhetoric of the Trump administration, which rescinded the Obama-era guidance in 2017, more students are aware of Title IX and the ways it can be enforced, said Michael Dolce, a Florida-based attorney who represents victims of sex crimes. With more accused students looking to turn to the courts, there’s also been increased demand for attorneys to defend them, Dolce said.

“A lot of criminal defense lawyers are specifically advertising that they represent the accused in Title IX cases,” he said. “Pick any university in the country and go five miles from there, and you will find lawyers who advertise defending the accused. That wasn’t the case 10 years ago.”

Settling complaints from alleged victims in court cost colleges and universities an average of $350,000 in the years following the Obama guidance, and some settlements reached $1 million, UE reported in an analysis of Title IX claims from 2011 to 2015 at 1,600 institutions. This does not include legal defense expenses, which can cost colleges and universities millions before settlements are even reached, according to UE’s 2015 report.

Claims settled with a student accused of sexual misconduct cost universities less in damages on average — around $20,000 to $30,000, Dunn said. These settlements typically cover the accused student’s losses in tuition and housing from periods when they were suspended or expelled from the institution, whereas a sexual assault victim could claim more monetary relief for the loss of educational access and post-traumatic stress, she said.

The high cost of addressing sexual misconduct on campus has become a lose-lose situation for universities and can even possibly put some institutions out of business, said Peter Lake, director of Stetson University’s Center for Excellence in Higher Education Law and Policy.

“If you don’t deal with sexual violence, you’re going to get sued. If you deal with sexual violence, you’re going to be sued,” Lake said.

Richards said most of these lawsuits are dismissed by federal judges early on in the process if a judge concludes that the university did follow Title IX procedures under its own written rules and Department of Education regulations, and they very rarely proceed to trial.

Some lawsuits challenging Title IX procedure result in a “redo” of the hearing process led by the university if a judge finds that there was gender discrimination against either student, Dunn said.

But fewer cases brought by the accused are being dismissed due to the “judicial activism” of some judges, Lake said.

“Federal courts are being very activist now in asserting themselves as the courts of appeal over the college court — whether they want to admit it or not,” he said.

Undisclosed Settlements

A consequence of this new legal landscape is that universities are settling civil lawsuits filed by students accused of sexual harassment. The settlements are not typically publicized. The identities of students involved in Title IX proceedings are protected by the Family Educational Rights and Privacy Act. The federal law, commonly known as FERPA, also prevents students’ disciplinary records from being shared without their consent, but Title IX requires that the victims of sexual violence and harassment are made aware of sanctions against the perpetrators.

One lawsuit filed against Yale University by a student accused of sexual misconduct was dismissed by a judge in the U.S. District Court of Connecticut on April 25, 2018, after the two sides reached an undisclosed agreement. The student, who was identified in news reports as Daniel Tenreiro-Braschi, was suspended for two semesters after being accused of sexual assault. Yale’s University-Wide Committee on Sexual Misconduct determined he groped two female students in 2016 and was “creating a hostile academic environment,” according to the 53-page complaint.

Tenreiro-Braschi claimed an unfair hearing and bias on the part of the committee. He maintained that members of the committee had professional connections to the accusers’ parents, who were Yale faculty and notable alumni. His suit also claimed the independent fact finder assigned to his case included “unrelated hearsay and derogatory character statements” in her investigation and that the two accusers had listened to each other’s testimony and coordinated responses to the committees’ questions.

Tenreiro-Braschi, a junior at the time, demanded to be “reinstated as a student in good standing and permitted to begin classes during the spring 2018 semester … [and his] disciplinary record be expunged; the record of expulsion be removed from his education file; and any record of the complaint be permanently destroyed,” the complaint states.

Tenreiro-Braschi was listed in the Yale College 2019 graduation ceremony program, the New Haven Register reported.

“Yale doesn’t comment on or acknowledge the existence of sexual misconduct cases,” wrote Yale director of media relations Karen Peart in an email. “All decisions regarding discipline are based on the facts known at the time.”

While the terms of any settlement Tenreiro-Braschi may have reached with Yale are unknown, lawsuits that end in private settlements do occur, Hanna said. And despite guilt or innocence, an accused student could be reinstated at the university without the knowledge of their accuser, Hanna said.

“When there are settlements, the hoarding and sealing of that information makes it hard for victims,” Hanna said. “The community can’t be informed about what happened. Anecdotally, we’ve heard from people who are survivors [that] the person who harmed them does go through this process and is permitted to come back on campus and permitted to graduate, and the survivor doesn’t even know about it.”

The Title IX procedures in place on campuses that attempt to provide victims an alternative to the often slow-moving and strenuous criminal justice system are leading to an even more strenuous process for all parties involved in the federal courts, Lake said.

“The pressure now is to avoid getting in situations where [institutions] go before the court,” Lake said. “If colleges get into too many situations where they have to litigate, they’ll go out of business.”

Some institutions offer “alternative” or “early” resolution models for victims of harassment, which could entail the accused student and accuser mediating the issues or incident that caused the Title IX complaint, Sapp said. These are informal procedures for violations that fall short of sexual violence and could provide a “learning experience” rather than sanctions for the accused, he said. There is a consensus that resolution models should not be used in cases of sexual assault, Hanna said.

In some cases, restorative justice works with certain students, Dolce said.

“It could be immaturity or bad cultural upbringing that leads to harassment,” he said. “There’s a world of difference between that and the ability to lay hands on somebody.”

RAINN’s position is that “restorative justice” options are an easy out for universities and allow perpetrators to avoid actual consequences for their actions, said Camille Cooper, vice president of public policy for RAINN, the Rape, Abuse and Incest National Network and sexual assault hotline. End Rape on Campus argues that the process can work for students who were harassed but not assaulted, Hanna said. Both organizations agree that universities should tread carefully when offering alternative resolution methods so as not to coerce victims to accept a process they are not comfortable with, or that could retraumatize them.

“Resolutions are one thing that can work,” Hanna said. “They don’t always, and we have seen and heard many times about survivors feeling pushed into mediation or resolution. We’ve heard stories of Title IX coordinators or advocates saying, ‘This is going to be the only way to get what you want.’”

These methods provide a way for colleges and universities to avoid civil litigation challenging Title IX proceedings and could end up being positive for all parties, Richards said.

“Many schools are setting up these models … because they’ve had the time to see how these adversarial models play out,” he said. “They’re agreed upon by the parties and don’t result in these sorts of winners and losers scenarios.”

Wrongful Convictions

On Wrongful Conviction Day, CPI Calls on Lawmakers to Address the Root Causes of a Travesty of Justice

Post author By saveadmin
Post date October 1, 2019

Contact: Rebecca Stewart

Telephone: 513-479-333

Email: info@prosecutorintegrity.org

On Wrongful Conviction Day, CPI Calls on Lawmakers to Address the Root Causes of a Travesty of Justice

WASHINGTON / October 2, 2019 – Today is Wrongful Conviction Day, and over 30 events are being held around the country to highlight the plight of persons who have been convicted of a crime they did not commit (1). To date, 2,499 persons have been exonerated in the United States. The most recent exoneree is Larry Roberts, convicted in 2007 for murder and sentenced to life without parole. Two weeks ago, Roberts was acquitted by a jury, based on evidence of witness misidentification, and immediately released from confinement (2).

Last December, Congress enacted the First Step Act, breakthrough legislation that was designed to reduce lengthy sentences for persons who had committed a non-violent crime. But far less attention has been paid to addressing the root causes of wrongful convictions in order to prevent such problems.

The National Registry of Exonerations has identified five factors that are known to contribute to wrongful convictions (3):

Perjury or False Accusation – Present in 58% of wrongful conviction cases
Official Misconduct by prosecutors and law enforcement – 54% of cases
Mistaken Witness Identification – 28% of cases
False or Misleading Forensic Evidence – 23% of cases
False confession – 12% of cases

Underlying these factors is a problem known as “confirmation bias,” in which investigators, prosecutors, and jury members reach a premature and faulty determination of guilt (4).

Confirmation bias is worsened by new investigative approaches that are known as “Start By Believing” and “trauma-informed.” Start By Believing instructs detectives to begin with a presumption of guilt; and trauma-informed posits that a complainant’s testimony is presumptively truthful, even when it defies plausibility or contradicts other persons’ testimony (5).

The Center for Prosecutor Integrity (CPI) urges lawmakers to enact legislation to restore fairness, due process, and the presumption of innocence to our criminal justice system.

Citations:

Release posted here: http://www.prosecutorintegrity.org/pr/on-wrongful-conviction-day-cpi-calls-on-lawmakers-to-address-the-root-causes-of-a-travesty-of-justice/