Category: Believe the Victim

Telephone: 301-801-0608

Email: info@saveservices.org

Legal Experts and Professors Join Forces, Endorse Letter Opposing Biased Investigation Practices

WASHINGTON / July 23, 2018 – Over 150 criminal attorneys, law professors, and scholars across the country who are concerned about widespread bias in sexual assault investigations have signed an Open Letter denouncing inequitable and unfair “victim-centered” investigative practices.

The letter concludes, “By their very name, their ideology, and the methods they foster, ‘believe the victim’ concepts presume the guilt of an accused. This is the antithesis of the most rudimentary notions of justice. In directing investigators to corroborate allegations, ignore reporting inconsistencies, and undermine defenses, the ‘believe the victim’ movement threatens to subvert constitutionally-rooted due process protections.”

Many of the victim-centered practices discussed in the Letter have become widely utilized by college administrators, drawing the ire of judges in both state and federal courts. “[I]n a stunning collective judicial rebuke to many campuses’ unfair treatment of students accused of sexual misconduct, courts have issued at least 102 rulings against universities since 2011 compared with 88 rulings in their favor.” (1)

Victim-centered practices, sometimes referred to as “Start by Believing,” are becoming widespread in the criminal justice system, as well (2). In 2016 an Arizona governor’s commission issued a letter advising the state’s criminal justice agencies to reject “Start by Believing” investigative methods because their use “creates the possibility of real or perceived confirmation bias.” (3)

These legitimate concerns have already manifest in actual cases. (4) Defense attorneys will likely begin to expose the biased training to the fact finders.  As for institutions of higher education, journalist Emily Yoffee suggests that faculty members “should also model for their students how an open society functions, and how necessary it is to protect the civil liberties of everyone.” (5)

The Open Letter is available at http://www.saveservices.org/wp-content/uploads/VCI-Open-Letter-7.20.18.pdf.  For a list of the 20 editorials published in 2018 critical of the ‘believe the victim’ approach, visit http://www.saveservices.org/sexual-assault/investigations/.

Citations:

(1) https://regproject.org/wp-content/uploads/RTP-Race-Sex-Working-Group-Paper-Campus-Misconduct-Proceedings.pdf

(2) http://dailycaller.com/2018/06/07/start-by-believing-program/

(3) http://www.phoenixnewtimes.com/news/duceys-faith-office-assails-start-by-believing-advocacy-program-for-rape-victims-8896373

(4) https://newsinteractive.post-gazette.com/blog/lies-jail-and-false-charges/ & https://blog.simplejustice.us/2018/03/16/no-reason-to-investigate-if-you-believe-the-victim/

(5) https://www.theatlantic.com/education/archive/2017/09/the-uncomfortable-truth-about-campus-rape-policy/538974/

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

Telephone: 301-801-0608

Email: info@saveservices.org

 

Lesson from the Michigan Sex Abuse Case:

Campus Investigators Should Not Be Handling Felony Crimes

WASHINGTON / February 5, 2018 – In the wake of the January 24 sentencing of Lawrence Nassar on multiple charges of sexual abuse of young gymnasts, SAVE is calling for an end to the practice of campus investigators handling felony level crimes. Such persons lack the training, expertise, and independence necessary to conduct such complex investigations.

Nassar was sentenced to 40 to 175 years in prison for sexual abuse. The seven-day hearing leading to Nassar’s sentencing brought more than 150 young women who publicly confronted him and spoke of their abuse (1).

According to an article published last week in The Atlantic, a credible allegation of sexual abuse was made to Michigan State University officials by former MSU student Amanda Thomashow in 2014 (2). She alleged that Nassar massaged her breasts and vaginal area during medical examinations to the point of sexual arousal. Such actions represent criminal activity under Michigan law.

But rather than referring the case to criminal investigators, the allegation was handled by the MSU Title IX coordinator, Kristine Moore. As part of its internal investigation, Moore sought out the opinions of four medical experts. All four had close ties to the university and Nassar.

At the conclusion of her interviews, Moore completed two reports. The first report, written for university administrators, cleared Nassar of the sexual harassment charge but concluded he was inflicting “unnecessary trauma” on his patients. The second report, provided to Thomashow, made no mention of the “unnecessary trauma” finding.

The Atlantic article concludes, “Because the 2014 investigation was conducted internally, conflict of interests may have influenced the outcome, allowing Nassar to continue his abuse for two more years.”

The MSU investigation came three years after the federal Office for Civil Rights issued a Dear Colleague Letter directing colleges to handle all allegations of sexual misconduct. Federal lawmakers have sharply criticized campus adjudications for shortchanging complainants and accused persons alike (3).

A recent Department of Education probe of MSU Title IX cases found that a “significant number of files” lacked investigative reports. In these cases, the federal probe couldn’t determine whether an investigation was completed or if MSU acted on the findings (4).

SAVE notes that investigations of alleged sexual offenses are fraught with complexities associated with the collection, analysis, and synthesis of sometimes conflicting information obtained from multiple sources. Many campus investigators only attend a weekend training course, leaving them woefully unqualified to handle such cases.

SAVE has developed a model bill, the Campus Equality, Fairness, and Transparency Act, which encourages the referral of campus criminal cases to law enforcement authorities (5).

Links:

1. https://www.nytimes.com/2018/01/24/sports/larry-nassar-sentencing.html
2. https://www.theatlantic.com/education/archive/2018/01/the-nassar-investigation-that-never-made-headlines/551717/
3. http://www.saveservices.org/sexual-assault/lawmakers/
4. https://www.lansingstatejournal.com/story/news/local/2016/12/15/michigan-state-sexual-assault-harassment-larry-nassar/94993582/
5. http://www.saveservices.org/sexual-assault/cefta/

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

Stop Abusive and Violent Environments

Trauma-informed behavioral theories of sexual assault originated with anecdotal reports of how victims of forcible rape responded to their experiences. The concept of “rape trauma syndrome” (RTS) stemmed from a 1974 survey of 92 forcible rape victims’ self-reported symptoms.[1] Authors of the survey classified the symptoms into two stages: “fear or terror,” followed by efforts to “reorganize” their lives.[2]

The 1974 survey has been the focus of sharp criticism, highlighting “definitional problems, biased research samples,” and unreliability because “the inherent complexity of the phenomenon vitiate all attempts to establish empirically the causal relationship implicit in the concept of a rape trauma syndrome.”[3] The survey’s credibility is also compromised by its “failure to distinguish between victims of rapes, attempted rapes, and molestation.”[4] One legal expert concluded rape trauma syndrome is not “generally accepted by experts.”[5] Another found it “troubling” that theories of traumatic memory “continue to thrive as tenacious cultural memes” despite “very minimal” scientific support.[6]

But these criticisms have not deterred the accretion of even more symptoms putatively encompassed by “rape trauma syndrome,” creating a veritable chicken soup of quasi-diagnoses like “tonic immobility,” “fragmentation of memories,”[7] and “factual inconsistencies.”[8] One author predicted, “[i]f virtually any victim behavior is described as consistent with RTS, the term soon will have little meaning.”[9]

Despite research concluding that extreme stress may actually enhance the subsequent recall of stressful incidents,^[10] rape trauma theories have spawned an industry to teach investigators “trauma-informed” approaches. Rebecca Campbell, PhD, long-time victims’ advocate and psychology professor at Michigan State University, has popularized the “trauma-informed” approach through numerous publications^[11] and presentations to professional audiences across the country.

Campus investigators stand at the epicenter of trauma-informed concepts. Guidance from the Department of Education’s Office for Civil Rights directed Title IX training to include “the effects of trauma, including neurobiological change”[12] — a phrase pregnant with hidden meaning. Although this guidance has been rescinded, many college Title IX programs continue to follow its admonitions.

The illusory evidence for trauma-informed theory is found in various training regimes, including a program on trauma-informed sexual assault investigation offered by the National Center for Campus Public Safety (NCCPS).[13] NCCPS’s Why Campuses Should Conduct Trauma-Informed Sexual Assault Investigations webinar repeats the same unsupported “trauma-informed” theories on memory fragmentation, and suggests it is normal for “victims” to engage in counterintuitive victim behavior such as communicating and “consensual sexual or social activities” with the alleged perpetrator.[14]

Journalist Emily Yoffe has characterized trauma-informed approaches as emblematic of “junk science:”

The result is not only a system in which some men are wrongly accused and wrongly punished. It is a system vulnerable to substantial backlash. University professors and administrators should understand this. And they, of all people, should identify and call out junk science.[15]

Harvard law professor Janet Halley has ridiculed the trauma-informed training employed by her university, noting the materials provide a “sixth grade level summary of selected neurobiological research” and are “100% aimed to convince them to believe complainants, precisely when they seem unreliable and incoherent.”^[16]

In sum, under the umbrella of “trauma-informed” theories, victims’ advocates not only recommend disregarding complainants’ inconsistencies or behavioral anomalies; they also insist such inconsistencies should be viewed as probative evidence of trauma. Illogically, this interpretation precludes consideration of a complainant’s incongruous statements or inconsistent behavior as evidence, resulting in an irrefutable argument that the victim’s fragmented or lost memories are certain evidence of trauma, with the implication that therefore the allegations are true.

[1] Ann Wolbert Burgess & Lynda Lytle Holmstrom, Rape Trauma Syndrome, 131 Am. J. Psychiatry 98 (1974).

[2] Julian D. Ford, Christine A. Courtois, Rape Trauma Syndrome, Prevention of PTSD, Posttraumatic Stress Disorder (2015) http://www.sciencedirect.com/topics/medicine-and-dentistry/rape-trauma-syndrome

[3] Giannelli, Paul C., Rape Trauma Syndrome, Faculty Publications, Paper 346, p. 271 (1997). http://scholarlycommons.law.case.edu/faculty_publications/346

[4] Robert R. Lawrence, Checking the Allure of Increased Conviction Rates: The Admissibility of Expert Testimony on Rape Trauma Syndrome in Criminal Proceedings, 70 Va. L. Rev. 1657, 1678-1680 (1984)

[5] William O’Donohue, Gwendolyn C. Carlson, Lorraine T. Benuto & Natalie M. Bennett, Examining the Scientific Validity of Rape Trauma Syndrome, University of Nevada, Reno, Psychiatry, 21 Psych. & Law, Issue 6, 858-876, 860 (2014).

[6] Robert A. Nash and James Ost, ed., Concluding Remarks; Malleable knowledge about malleable memories, False and Distorted Memories, p. 159, Psychology Press (2016).

[7] Stephen Porter and Angela R. Birt, Is Traumatic Memory Special? Appl. Cognit. Psychol. 15 S101-S117, S101 (2001).

[8] Joanne Archambault (Ret.), Understanding the Neurobiology of Trauma and Implications for Interviewing Victims, p. 25 (2016) https://www.evawintl.org/Library/DocumentLibraryHandler.ashx?id=842.

[9] Frazier and Borgida, Rape Trauma Syndrome: A Review of Case Law and Psychological Research, 16 Law & Hum. Behav. 293, 304-305 (1992).

[10] Richard McNally, Pres. and Fellows Harvard Col., Remembering Trauma, Harvard University Press, p. 180 (2005).

[11] See, for example, Campbell, R., Shaw, J., & Fehler-Cabral, G., Evaluation of a victim-centered, trauma-informed victim notification protocol for untested sexual assault kits (SAKs), Violence Against Women (April 24, 2017).

[12] Department of Education Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence, p. 40 (2014), withdrawn by 2017 Dear Colleague Letter, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf; see archived 2014 Questions and Answers, https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf

[13] National Center for Campus Public Safety, Not Alone Report, https://www.nccpsafety.org/resources/library/not-alone-report/.

[14] Jeffrey J. Nolan, J.D., Why Campuses Should Conduct Trauma-Informed Sexual Assault Investigations (webinar) Trauma-Informed Sexual Assault Investigation and Adjudication Institute, Slides 23, 24 (2016). https://www.nccpsafety.org/training-technical-assistance/webinars/why-campuses-should-conduct-trauma-informed-sexual-assault-investigations#embeds

[15] Emily Yoffe, The Bad Science Behind Campus Response to Sexual Assault, The Atlantic, (Sept. 8, 2017) https://www.theatlantic.com/education/archive/2017/09/the-bad-science-behind-campus-response-to-sexual-assault/539211/

[16] Janet Halley, Trading the Megaphone for the Gavel in Title IX Enforcement, Harvard Law Review 128 Harv. L. Rev. F. 103 (Feb. 18, 2015) https://harvardlawreview.org/2015/02/trading-the-megaphone-for-the-gavel-in-title-ix-enforcement-2/