Victim-Centered: Death of Due Process

Due process is a bedrock concept in our nation’s legal system. The words “due process” appear twice in the Constitution — in the Fifth and the Fourteenth Amendments. Both Amendments guarantee due process when someone is denied “life, liberty, or property.” Due process consists of:

Substantive due process: Laws and policies may not contain provisions that result in the unfair, arbitrary, or unreasonable treatment of a person.
Procedural due process: A course of formal proceedings carried out in accordance with established rules and principles.

Judge Henry Friendly has identified key due process protections for a fair hearing. While each element is not mandatory, the list remains highly influential:

An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and the reasons for its decision.

WHAT DOES ‘VICTIM-CENTERED’ MEAN?

“Victim-centered” generally refers to investigative and adjudication methods that:

Presume the guilt of the defendant/respondent and refer to the complainant as a “victim”
Attribute inconsistencies in the complainant’s statements to life-threatening trauma
“Cherry-pick” the evidence in order to increase the likelihood of a finding of guilt.
Avoid asking detailed questions in order to not “retraumatize the victim.”
Write the investigative report in order to portray the sexual contact as non-consensual

Victim-centered approaches are widely utilized in sexual assault and domestic violence cases, especially on college campuses. Victim-centered methods go by a variety of names, including Start by Believing, trauma-informed, and Forensic Experiential Trauma Interview (FETI).

A recent example of a biased investigation involves former Virginia governor Douglas Wilder, right, who was wrongfully found responsible by External Investigator, Jody Shipper, who had been hired by the University’s Equity and Access Services office. Wilder was ultimately found “not responsible” by a four-member panel at Virginia Commonwealth University. The hearing panel rejected the investigator’s finding due to “insufficient evidence.”

On December 2, 2019, Gov. Wilder issued a statement that recounted his ordeal and concluded, “Among those things more needed is the improvement in the administration of justice and equity, and the acknowledgement of the need to make Due Process REAL and not just sloganeering.”

HOW DO ‘VICTIM-CENTERED’ METHODS WEAKEN DUE PROCESS?

Experience with victim-centered approaches in Title IX adjudications reveals they undermine five of the due process procedures listed above:

An unbiased tribunal — The complainant is often referred to as a “victim,” which serves to bias the panel members.
The right to present evidence, including the right to call witnesses — Accused students may not be allowed to call witnesses because their testimony may prove to be “traumatic” to the complainant.
The right to cross-examine adverse witnesses — Accused students often are not allowed to cross-examine the complainant because the questions are considered to be “traumatic” to the complainant.
Opportunity to be represented by counsel — The accused student’s attorney is generally prohibited from engaging in direct cross-examination, in order to avoid “traumatizing” the complainant.
Requirement that the tribunal prepare a record of the evidence presented — Investigative reports based on victim-centered precepts are highly biased and feature erroneous conclusions.

DEBUNKING ‘VICTIM-CENTERED’ IDEOLOGY

Advocates of victim-centered methods claim that victims are so traumatized that they are unable to recall key details of the incident, or even give conflicting accounts of the event. Such claims have been repeatedly refuted:

Center for Prosecutor Integrity: Review of ‘Understanding the Neurobiology of Trauma and Implications for Interviewing Victims’
- “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.”
ATIXA: Trauma-Informed Training and the Neurobiology of Trauma
- “The truth is that we understand perhaps 1/100th of 1% of which we need to know and may someday understand about how the brain responds to trauma…You will need to assess whether you can afford to have a non-empirical, biased training on your resume in this age of litigation.”
United States Air Force: Report on the Use of the Forensic Experiential Trauma Interview (FETI) Technique
- “We believe it would be inappropriate and irresponsible to discontinue the use of a robust, well-studied, effective, and empirically-validated interviewing method that is supported by the latest scientific research (the Cognitive Interview), in favor of an interviewing method that is loosely-constructed, is based on flawed science, makes unfounded claims about its effectiveness, and has never once been tested, studied, researched or validated.”
Christian Meissner and Adrienne Lyles: Training for Title IX Investigators Lacks Tested, Effective Techniques
- “A search of the available research literature yielded no published, peer-reviewed studies on the efficacy or effectiveness of FETI….We know of no scientific studies that support this contention of neurobiological response differences between perpetrators and victims.”
Emily Yoffee: The Bad Science Behind Campus Response to Sexual Assault
- “The spread of an inaccurate science of trauma is an object lesson in how good intentions can overtake critical thinking, to potentially harmful effect….University professors and administrators should understand this. And they, of all people, should identify and call out junk science.”

ACTIONS TO TAKE

SAVE is working to end victim-centered methods in campus adjudications and in the criminal justice system. We are asking persons to:

Sign the petition, “Stop sham ‘Start By Believing’ investigations” — over 3,400 signers to date!
Warn local college administrators about the risk of lawsuits if they continue to rely on victim-centered investigations.
Contact state lawmakers, urge them to enact legislation to assure impartial and balanced investigations — see Section 105 of the model Campus Equality, Fairness, and Transparency Act

RESOURCES

The following SAVE Special Reports document the problem of biased due process procedures on campus:

An interactive spreadsheet that lists many lawsuits against universities with allegations of investigative bias is available HERE.

For information about victim-centered methods in the criminal justice system, visit the web page of the Center for Prosecutor Integrity.

ARTICLE

Alexander Pease: Popular Title IX training techniques ‘are at odds with the available science,’ Iowa State researchers find