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.