Category: Sexual Assault

To Senators Murray, Warren and Gillibrand: Secretary DeVos CAN Multi-task

Post author By saveadmin
Post date April 3, 2020

For over two years, U.S. Senators Patty Murray (D-WA), Elizabeth Warren (D-MA) and Kirsten Gillibrand (D-NY) urged Secretary DeVos and the Department of Education to not create new Title IX regulations, fallaciously claiming victims will be further harmed. The trio jumped on the crowded coronavirus excuse train, and now claim it is unacceptable for the Department to finalize a rule during the coronavirus outbreak.

The Senators urge DeVos “not to release the final Title IX rule at this time and instead to focus on helping schools navigate the urgent issues arising from the COVID-19 pandemic that is top of the mind for all students and families.” [1]

However, the Department’s accomplishments show on March 6, the Department promptly created a coronavirus information and resources website for school and school administrators [2]. Throughout the month they continued this focus on students with disabilities [3], provided student loan relief [4], and announced broad flexibilities for states to cancel testing [5]. There have been multiple task forces, webinars, and conference calls focused on helping schools navigate the urgent issues arising from the corona virus pandemic.

The Senator’s asking Secretary DeVos to suspend due process protections because of the coronavirus is irresponsible, impractical, and unfair to institutions, students and professors.

Ashe Schow, a reporter and columnist, appropriately pointed out in her commentary: “Three Democrat senators are using the coronavirus pandemic to urge Education Secretary Betsy DeVos to delay providing college students their constitutional rights to due process.” [6]

DeVos has shown competing priorities are possible to navigate and combat. She is prioritizing the immediate needs, which include both navigating through this pandemic while ensuring students are given their due process rights.

As students and professors step onto their campuses in August, they will also be stepping into a more fair and equitable and safe environment than they stepped off in March.

Citations:

[1]https://www.help.senate.gov/ranking/newsroom/press/murray-warren-gillibrand-urge-secretary-devos-to-halt-title-ix-rule-focus-on-helping-schools-during-the-covid-19-crisis

[2]https://www.ed.gov/coronavirus?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

[3]https://www.ed.gov/news/press-releases/secretary-devos-releases-new-resources-educators-local-leaders-k-12-flexibilities-student-privacy-and-educating-students-disabilities-during-coronavirus-outbreak?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

[4] https://www.ed.gov/news/press-releases/delivering-president-trumps-promise-secretary-devos-suspends-federal-student-loan-payments-waives-interest-during-national-emergency?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

[5] https://www.ed.gov/news/press-releases/helping-students-adversely-affected-school-closures-secretary-devos-announces-broad-flexibilities-states-cancel-testing-during-national-emergency?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

[6] https://www.dailywire.com/news/three-democrats-use-coronavirus-to-demand-delaying-due-process-rights-for-college-students

Campus Sexual Assault Title IX

AAU Climate Surveys Reveal Fiasco of Campus Sexual Assault Policies

Post author By saveadmin
Post date April 2, 2020

“Climate surveys” of campus sexual assault have long been viewed as a strategy to track the effectiveness of campus policies to crack down on sexual assault and to alert campus officials to emerging problem areas. “Results from the individual universities reveal which institutions are handling sexual misconduct well and which are not,” explains SurvJustice director Katherine McGerald.

The best known climate surveys have been conducted by the Association of American Universities, a coalition of leading American universities. The AAU conducted its first survey in 2015, and again in 2019. The most important question, of course, is whether the surveys show a decline in sexual assault rates. These are the results, as recently reported by the AAU:

“For the 21 schools that participated in both the 2015 and 2019 surveys, the rate of nonconsensual sexual contact by physical force or inability to consent increased from 2015 to 2019 by 3.0 percentage points (to 26.4 percent) for undergraduate women, 2.4 percentage points for graduate and professional women (to 10.8 percent) and 1.4 percentage points for undergraduate men (to 6.9 percent).”

In short, sexual assaults increased for undergraduate women, graduate women, and undergraduate men. Despite enormous expenditures of time and money, the problem got worse over the four-year period.

Oddly, neither the AAU press release or subsequent media coverage mentioned this important fact.

Also disappointing was the finding that among sexual assault victims, only 45.0% said that school officials were “very” or “extremely likely” to take their report seriously. Consistent with that gloomy assessment, campus police were contacted in only 11.2% of sexual assault cases.

These dismal findings didn’t come as a total surprise to many.

In 2017, SAVE published, “Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade,” which documented a five-fold increase in the number of Title IX complaints to the Office for Civil Rights following issuance of the 2011 Dear Colleague Letter. The report also detailed numerous incidents of mistreatment of identified victims by campus officials.

The following year, the American Association for University Women reported that 89% of American colleges had received zero reports of rape incidents in 2016. This surprising finding either means that campus rapes are far less common than claimed, or that victims do not see the campus tribunals as helpful.

Serious shortcomings with campus sexual policies also have been documented for accused students, for faculty members, and by college administrators. The problem is both procedural and strategic. For example, why aren’t colleges doing more to address the root causes of sexual assault, such as widespread alcohol abuse?

The OCR’s Dear Colleague Letter on sexual violence was issued on April 4, 2011. Nine years later, the policy’s controversial approach is viewed by a broad range of stakeholders as broken. The conclusion is evident: It’s time for a major overhaul.

Sexual Assault Sexual Harassment Title IX

Colleges Plead for More Time to Implement New Title IX Regulations

Post author By saveadmin
Post date March 25, 2020

March 20, 5:45 p.m. Colleges and universities have their hands full dealing with the coronavirus outbreak, as they transition to online classes, close campuses and worrying about the health and housing of their students. But many are worried they may soon have to implement a controversial rule by U.S. Secretary of Education Betsy DeVos that will change how institutions handle allegations of sexual assault and harassment, including a requirement the accused be able to cross-examine their accusers in a live hearing.

DeVos has been rumored to be issuing the rule soon. Though the Office of Management and Budget, which reviews proposed new rules, has meetings with stakeholders scheduled through April 6, the office could cancel them and green-light a rule at any time.

The rule would involve changing policies, including faculty agreements, said Brett A. Sokolow, president of the Association of Title IX Administrators.

“Issuing Title IX regulations in the midst of coronavirus response would be a huge distraction for schools and colleges, which need to be focused right now on transitioning essential services to online delivery,” he said. While institutions are usually given 30 to 90 days to comply with a new rule, he said they should be given at least a year.

More than 10 higher educations asked this week in a memo for federal lawmakers to give DeVos “the authority to waive compliance with significant and/or costly new regulatory requirements that may be introduced in this period, as institutions’ ability to come into compliance will necessitate a substantial outlay of resources that are better allocated to other purposes at this time.”

Craig Lindwarm, vice president for government affairs at the Association of Public and Land-grant Universities, said his group is worried about having to comply with a pending rule expanding the reporting requirements for institutions for foreign gifts and contracts.

“Now is not the time to impose substantial new regulatory burdens on institutions, and significant challenges in implementation, when campuses are closing and responding to the emergency conditions they’re facing,” he said.

“We have significant concerns that institutions won’t have the bandwidth or the resources to implement these regulations,” said Matt Owens, the Association of American Universities’ executive vice president and vice president for federal relations.

“This is not the time,” said Elizabeth Tang, education and workplace justice counsel at the National Women’s Law Center. “Students and families are struggling to provide for their basic needs, and schools scrambling to provide online resources. It would be absolutely inappropriate to issue a new rule in the midst of all this.”

The law center has said it would file a suit to block the rule if the final version is similar to the initial version DeVos proposed. Many of the Trump administration’s rules have been blocked in court, she said. But Sokolow, writing in Inside Higher Ed, warned institutions will have to respond to a new rule even if it is being challenged in court.

“It’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, colleges and universities will still need to comply with those elements of the regulations that are not enjoined,” he wrote in a Jan. 15 opinion piece on the potential impact of the new rule on institutions.

Source: https://www.insidehighered.com/news/2020/03/23/live-updates-latest-news-coronavirus-and-higher-education

Campus Sexual Assault Trauma Informed

PR: Impartial and Fair Investigations at Risk in Four States Eyeing ‘Trauma-Informed’ Methods

Post author By saveadmin
Post date March 24, 2020

Contact: Rebecca Stewart
Telephone: 513-479-3335
Email: info@saveservices.org

Impartial and Fair Investigations at Risk in Four States Eyeing ‘Trauma-Informed’ Methods

WASHINGTON / March 25, 2020 – Proposed legislation in New Hampshire, Massachusetts, California, and Hawaii would require universities to use controversial “trauma-informed” methods for investigations of allegations of campus sexual assault. Investigative reporter Emily Yoffe has concluded that “trauma-informed” methods represent a form of “junk science.” (1)

Numerous judicial opinions have found “trauma-informed” investigations presume the guilt of the accused and violate due process (2). In Norris v University of Colorado, Boulder, the university’s motion-to-dismiss was denied as the Plaintiff argued that a trauma-informed approach reflected bias by university investigators (3). In Doe v Syracuse University, the court criticized the university’s apparent bias based on “the influence on university officials of trauma-informed training”(4).

Even though the Department of Education’s April 2014 Q&A on Title IX and Sexual Violence with language about “effects of trauma, including neurobiological changes” was officially withdrawn in September 2017, “Trauma-informed” concepts are featured in bills currently being debated in four states across the country:

— New Hampshire SB679 mentions “trauma-informed response” six times and mandates the policy that institutions of higher education use regarding sexual misconduct must be “trauma-informed.”(5)

— Massachusetts H4418 requires an individual who participates in the implementation of an institution of higher education’s disciplinary process for addressing complaints of sexual misconduct be trained on “the effects of trauma, including any neurological impact on a person.”(6)

— Hawaii SB2311 requires “training on the impact of trauma” and “training on the neurobiological and psychological impact of trauma, stereotypes surrounding the causes and impact of trauma, and the components of trauma-informed care.”(7)

— California SB493 includes three provisions where “trauma-informed practices” are required: during the investigation of complaints, and training for the gender-equity officer and other employees engaged in the grievance procedures must be on “trauma-informed investigatory and hearing practices.”(8)

Three major organizations that provide training to campus investigators have cautioned against the use of “trauma-informed” methods. In July 2019, law firm Holland & Knight issued a white paper warning clients that content of training will be analyzed closely, and training for investigators and adjudicators, including trauma-informed training, should be presented in a manner that is fully balanced, does not rely on sex-stereotypes, and promotes fairness and equity for both complainants and respondents (9). In August 2019, the Association of Title IX Administrators (ATIXA) released a statement to avoid the use of theories on the neurobiology of trauma to substitute for evidence (10). Likewise, End Violence Against Women International (“EVAWI”) recently issued a report that admits, “there is a legitimate concern that the scientific literature is currently being misinterpreted and misapplied in some trainings, and this can yield inaccuracies and inappropriate conclusions during the course of a sexual assault investigation.”(11)

The use of trauma-informed practices in providing mental health services to rape victims is appropriate and useful. But relying on quasi-scientific theories for campus investigations raises concerns about fairness and objectivity. More information on the scientific and legal problems with such “victim-centered” investigations is available on the SAVE website (12).

Citations:

Stop Abusive and Violent Environments is leading the national policy movement for fairness, due process and the presumption of innocence: http://www.saveservices.org/

Campus Sexual Assault Title IX

OCR Is About to Rock Our Worlds

Post author By saveadmin
Post date March 17, 2020

ATIXA, the association of Title IX administrators I serve as president, anticipates publication of the final Title IX regulations in the Federal Register within the coming weeks. The federal government last issued Title IX regulations in 1975, so this is somewhat unprecedented. The proposed changes are far more sweeping than the 2011 Dear Colleague letter promulgated by the Office for Civil Rights (OCR). The changes coincide with a due process revolution occurring in some federal courts, as well, with respect to college and university disciplinary processes.

What Will These Changes Mean for Higher Education?

Perhaps 75 to 80 percent of the proposed regulations mandate neutral or beneficial changes or clarifications. Many of the more controversial changes will probably be addressed by a future Congress or through litigation. Some of the proposed changes included in the draft that OCR shared publicly last November may not make it into the final rule.

Most of the changes revolve around due process, which protects all of us, regardless of our campus role or status. They include provisions requiring more substantive written notice to the respondent of the nature of sexual misconduct allegations, the right of the parties to review investigation materials prior to a final determination and the right to a written rationale for the outcome and any sanctions assigned. For the most part, these are rights you would want to protect you if you were accused — rightfully or wrongfully — of sexual misconduct.

What Do We Do Now?

We at ATIXA suggest that colleges and universities continue to honor “best practices” commonly adopted by the higher education field, while moving gradually toward implementing the changes that the regulations will require. Some changes, like equitable interim resources and supports for responding parties, can be implemented now without radical alteration of programs. In its 2011 guidance, OCR was explicit about the need for institutions to provide broad-based supports and resources to victims of sex discrimination, such as counseling services, academic accommodation and housing changes. Now, OCR is making clear its expectation that those supports and resources also be offered to respondents. Many colleges already do so, but OCR wants to ensure uniform provision of services by all funding recipients.

Similarly, colleges can act now to extend all VAWA Section 304 rights to parties in sexual harassment cases. In 2014, Congress enacted amendments to the Violence Against Women Act (VAWA), which now are incorporated into the federal Clery Act. These changes codified as law some provisions of Title IX that were previously only proffered as regulatory agency guidance and added many provisions requiring training and prevention by colleges. Oddly, the protections of VAWA Section 304 only extended to what have become known as the “big four” offenses of sexual violence, dating violence, domestic violence and stalking. That created an asymmetry because Title IX protections include not only these four offenses but also conduct like sexual harassment and disparate-treatment sex discrimination that VAWA does not. Institutions were left with two competing laws that did not fully parallel each other. OCR’s proposed regulation logically aligns VAWA and Title IX so that rights do not vary by the type of sex offense alleged.

Thus, institutions can take steps such as providing written notice of the outcome of an allegation to all parties, not just in the big four offenses, but for sexual harassment, too. Additionally, institutions can ensure equitable provision of advisers across all cases impacted by Title IX, not just for those involving the big four.

These kinds of changes will give administrators a head start on compliance before the regulations are even released. Once released, there will be an implementation grace period of perhaps 90 days to as much as 12 months from publication of the final rule to allow colleges and universities time to move toward compliance. So we’re still some months from an enforcement deadline, even if we are unsure what that deadline will be.

What Do We Do When the Regulations Are Published?

Higher education needs to move toward compliance or to decide to litigate the validity of the regulations against the U.S. Department of Education — or both. OCR is obligated to address, in aggregate, the nearly 130,000 comments it received during the public notice-and-comment period. The pressure is on for OCR to make it clear in its responses that its rules are rationally related to the statute, especially with a U.S. Supreme Court that appears increasingly hostile philosophically to agency rules.

Once OCR publishes the final rule, it will expect good-faith efforts to comply. With respect to litigation, it’s unlikely that a federal judge will enjoin the regulations fully, and if there is a partial injunction, colleges and universities will still need to comply with those elements of the regulations that are not enjoined. Unless and until a judge says that they don’t have to comply, colleges and universities will need to become compliant.

It took the higher education field three to four years to fully implement the 2011 guidance, but that kind of lethargy won’t be an option with these new regulations. They will have the force of law behind them rather than simply serving as guidance. Drag your feet on implementation and responding parties will sue the minute you are not according them the full panoply of rights OCR has promised them. Fail to provide the responding party with a copy of the investigation report or sufficient time to prepare for a hearing and you should expect a motion for a temporary restraining order from their lawyer.

The catch-22 is that when you move to compliance, activists will sue to argue that the regulations are ultra vires and anti-victim expansions of agency authority. They will surely challenge provisions that require disclosure to responding parties all evidence provided by reporting parties, even when that evidence is not admissible or used to support a decision. This rule will create a chilling effect on reporting parties and, it will be argued, is beyond the scope of OCR’s authority to enact under the statute. Similar arguments could be made to collaterally attack OCR’s proposed requirements for live hearings and cross-examination facilitated by the parties’ advisers. In fact, activists aren’t the only cohort likely to attack such provisions, as some private colleges are also planning to litigate any attempt to impose a live hearing requirement on them, and have already funded a significant war chest to do so.

Within this highly politicized crucible where any action or inaction will catalyze litigation, institutions need to form committees, task forces and Title IX teams now, so that administrators can study the regulations and commentary when they are published and change what needs to be changed. Faculty grievance processes will be an issue that administrators will have to face and resolve now, if they didn’t back in 2011. OCR is forcing the issue, and Title IX offices are probably going to be between a rock and a hard place — with faculty members who advocate for additional protections, such as clear and convincing evidence as a standard of proof for those accused of sexual assault, while others strongly advocate for preponderance of the evidence.

What Do We Do If We Don’t Agree With Some Provisions Within the Regulations?

About 20 to 25 percent of the regulations are potentially very detrimental to the cause of sex and gender equity in education, and we will need as a field to find ways to work within those requirements, challenge them in court or find clever work-arounds. Proposed provisions on notice, mediation, mandated reporting, live hearings and cross-examination could create significant chilling effects on the willingness of those who experience discrimination, harassment and sexual violence to report it to administrators and pursue formal resolution pathways.

Let’s drill down on each of these proposed provisions a bit. OCR seeks to limit the ways in which recipients are legally put on notice of sex discrimination. Institutions might see this as a welcome safe harbor, but why would colleges and universities want to make it harder to report and respond to incidents? The opening of access and “no wrong doors” approach to intake has been one of the most valuable and enduring legacies of the 2011 guidance, and it has resulted in substantial increases in reporting of incidents for most colleges.

OCR also now plans to remove the “soft ban” on mediation of sexual violence it implemented in 2011. The vast majority of sexual harassment claims can and should be resolved informally, but we need to be sure that the parties are participating voluntarily and not being pressured to minimize the severity of what has happened to them. And many in the field are rightfully concerned about whether colleges and universities have access to mediators skilled enough to resolve allegations of violence. Lower-level sexual harassment is very amenable to resolution via mediation, but the data on whether the same is true for violent incidents is much less conclusive.

Live hearings and cross-examination are the most controversial provisions of the proposed regulations. Of the nearly 130,000 comments submitted to OCR on the draft regulation, most were negative, with a particular targeting of OCR’s desire to turn educational resolution processes into mini-courtrooms that mirror criminal trials. Part of the reason many victims/survivors don’t choose to report campus sexual violence to law enforcement is because they prefer the less formal and less adversarial resolution processes in place at schools and colleges. It will take a strong person to be willing to go through a process where they will be subject to cross-examination by the other party’s lawyer. And, importantly, no research indicates that cross-examination creates more accurate results than other ways of allowing the parties in a sexual misconduct allegation a full and fair opportunity to review and contest all evidence prior to a final determination.

In light of all of this tumult, perhaps the healthiest mind-set is to view the regulations mostly as setting a floor for compliance and to institutionally commit to aim for the ceiling of best practices. Many organizations, including ATIXA, will continue to offer the field extensive guidance on how to evolve exemplary programs within the framework OCR is establishing, and outside it, where we can.

What is clear is that the pendulum is about to swing too far, again. The regulations have the potential to create significant public backlash, especially if colleges are seen as institutionally deprioritizing Title IX compliance in the coming months and years. Potential victims need to see you strengthening your program, not backing down. They are likely to perceive barriers to coming forward in the new rules, and administrators need to do everything possible to reassure potential victims that the Title IX office is still here for them, and that you’ll do everything not prohibited by the regulations to make reporting easier, offer services and resources, establish a process that is transparent and user-friendly, and avoid revictimization.

Regardless, some activists may turn some of their frustration with OCR on you, and we encourage you to be sympathetic, to encourage their voices and to be thoughtful about the ways that remedies-only and informal resolutions may be used to ameliorate or exacerbate the effects of the changes that OCR is catalyzing.

One thing is for sure — defining and maintaining sex and gender equity programmatic excellence in an environment of regulatory change, politicization of Title IX and fervent litigation will be among the most pressing challenges facing colleges and universities in 2020 and for some time to come.

Source: https://www.insidehighered.com/views/2020/01/15/how-respond-new-federal-title-ix-regulations-being-published-soon-opinion

Campus Sexual Assault

Right to counsel, right to confrontation among due process rights afforded to Arizona students under 2018 legislation

Post author By saveadmin
Post date March 17, 2020

In 2018, Arizona enacted HB 2563 (now Ariz. Rev. Stat. § 15-1866), a bill on campus free speech that FIRE criticized for missing the mark in some key respects. FIRE’s analysis of the bill focused exclusively on the aspects of the legislation that affected students’ free speech rights. We recently revisited the bill’s language and found that the final version, while still flawed on free speech grounds, greatly expanded the procedural safeguards guaranteed to students enrolled at public institutions of higher education who are accused of misconduct. So today, we are pleased to belatedly report on the robust procedural protections provided by the statute. The relevant language in the statute reads:

In all disciplinary proceedings involving students, including proceedings involving expressive conduct, a student is entitled to a disciplinary hearing under published procedures that include, at a minimum, all of the following:

(a) The right to receive advanced written notice of the allegations.

(b) The right to review the evidence in support of the allegations.

(c) The right to confront witnesses who testify against that student.

(d) The right to present a defense.

(e) The right to call witnesses.

(f) A decision by an impartial person or panel.

(g) The right to appeal.

(h) If either a suspension of more than thirty days or expulsion is a potential consequence of a disciplinary proceeding under this section, the right to active assistance of counsel.

The original text of the bill limited the above rights to only those situations where a student was facing campus discipline for allegedly disrupting a campus event. The final text, however, applies these rights “[i]n all disciplinary proceedings involving students.” This significant change means that any student at a public institution of higher education in Arizona now has all of the substantive rights listed in the statute, including the right to receive advanced notice of the allegations, the right to review evidence, the right to confront adverse witnesses, and other key rights. (The statute only requires the school to share the evidence that supports the charges, however. Unfortunately, it does not require disclosure of exculpatory evidence in the university’s possession.)

Perhaps most importantly, in cases that could result in a suspension of more than thirty days or an expulsion, the student is entitled to active assistance of counsel. This is an incredibly important development that Arizona students need to be aware of, so they can fully exercise their rights. While FIRE will continue to urge the legislature to amend the legislation to fix the free speech problems it presents, we are excited to get out the word about the strong due process provisions now in effect.

Source: https://www.thefire.org/right-to-counsel-right-to-confrontation-among-due-process-rights-afforded-to-arizona-students-under-2018-legislation/

Sexual Assault

The Title IX Travesty

Post author By saveadmin
Post date March 15, 2020

NCLA Senior Litigation Counsel Harriet Hageman hosts Lunch & Law with Jennifer Braceras, the Director of the Independent Women’s Forum Law Center, Hanna Stotland, an admissions consultant, and Caleb Kruckenberg, NCLA Litigation Counsel who is handling Vengalattore v. Cornell University and the U.S. Department of Education.

The panelists are at the forefront of responding to and defending against Title IX complaints at universities. They address the problems associated with university-led investigations of alleged sexual misconduct, including the serious lack of due process that has been so often ignored.

Recording available here: https://nclalegal.org/2020/03/lunch-and-law-the-title-ix-travesty/

Sexual Assault Start By Believing Victim-Centered Investigations

Too Little, Too Late: Review of EVAWI’s Updated Report on ‘Effective Report Writing’

Post author By saveadmin
Post date March 13, 2020

Center for Prosecutor Integrity

In 2006, End Violence Against Women, Inc. (EVAWI) published a report titled, “Effective Report Writing: Using the Language of Non-Consensual Sex.” This report was deeply concerning, given its specific guidance that investigators begin their probe with an “initial presumption” of guilt for the prime suspect. Noting numerous other concerns with this report, the Center for Prosecutor Integrity called on the Department of Justice to stop funding this project, which cost taxpayers over $8.9 million. [1]

In response, EVAWI updated their report, published under the same title. [2] This commentary reviews EVAWI’s 2019 version.

The Center for Prosecutor Integrity believes the need for a therapist to “believe the victim” is appropriate. But for an investigator or detective, “start by believing” is not appropriate because it undermines due process and violates numerous ethical codes of conduct.

Unfortunately, the central “believe the victim” concepts continue to be evidenced throughout the revised EVAWI report. The manual continues to be expressly designed to train investigators to prepare an investigative report that will “successfully support the prosecution of sexual assault cases” and to “record suspect statements, especially those that corroborate the victims account.” Investigators are also trained to “document suspect statements, especially those that corroborate the victim’s account or provide an implausible or even absurd version of reality. “ [2]

As does the original version, Effective Report Writing meticulously avoids the use of the neutral words “complainant” or “accuser,” and instead refers to complainants as “victims”. In a landmark case involving Brandeis University, District Court Judge F. Dennis Saylor wrote it is presumptuous to assume someone is a victim in the investigative context because “[w]hether someone is a “victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.” [3]

Responding to criticisms by 300 legal professionals and scholars, EVAWI’s revised report avoids certain prejudicial statements from its earlier report, e.g., instructing investigators to “make sure” the incident does “not look like a consensual sexual experience” by making the complainant “appear more innocent”. [3] No longer does the report state should there be inconsistencies in witness or defendant statements, investigators should highlight only those that “corroborate the victim’s statement.” [4]

In a related development, last year Drs. Susan Brandon and Sujeeta Bhatt evaluated a separate EVAWI report titled, “Understanding the Neurobiology of Trauma and Implications for Interviewing Victims.” [5] Noting numerous scientific flaws, Brandon and Bhatt published a detailed critique of EVAWI’s report.[6] In response, EVAWI made numerous revisions to their report, which Dr. Brandon noted in a recent Commentary.[7]

Both from Dr. Brandon’s recent Commentary and this one, it appears that EVAWI is reluctantly acknowledging there are risks in training investigators to be biased in favor of the identified victim. It’s a start, but 14 years after the original publication of its flawed report, EVAWI still has a long way to go to move from its advocacy of guilt-presuming investigations to embracing thorough and unbiased investigations.[8]

Links:

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

[2]https://www.evawintl.org/library/DocumentLibraryHandler.ashx?id=43.

[3] http://www.saveservices.org/wp-content/uploads/VCI-Open-Letter-7.20.18.pdf

[4] http://www.saveservices.org/wp-content/uploads/SAVE-Believe-the-Victim.pdf

[5] https://www.evawintl.org/Library/Detail.aspx?ItemID=842

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

[7] http://www.saveservices.org/2020/03/commentary-on-evawis-revised-report-on-the-neurobiology-of-trauma/

[8] http://www.prosecutorintegrity.org/sa/doj-complaint/

Sexual Assault

The CDC’s Rape Numbers Are Misleading

Post author By saveadmin
Post date March 9, 2020

Cathy Young is a contributing editor at Reason magazine.

“CDC: Nearly 1 in 5 Women Raped.” “One in Five U.S. Women Has Been Raped: CDC Survey.” These alarming headlines were typical of the coverage of last week’s Centers for Disease Control and Prevention report on sexual and intimate violence in the United States. The CDC study—the second in two years—seems to support a radical feminist narrative that has been gaining mainstream attention recently: that modern America is a “rape culture” saturated with misogynistic violence. But a closer look at the data, obtained from telephone surveys done in 2011, yields a far more complex picture and raises some surprising question about gender, victimization, and bias.

Both critics and supporters of the CDC’s methodology note the striking disparity between CDC figures and the Justice Department’s crime statistics based on the National Crime Victimization Survey (which includes crimes unreported to the police). While the CDC estimates that nearly 2 million adult American women were raped in 2011 and nearly 6.7 million suffered some other form of sexual violence, the NCVS estimate for that year was 238,000 rapes and sexual assaults.

New Republic reporter Claire Groden points out that while the NCVS focuses on criminal acts, the CDC’s National Intimate Partner and Sexual Violence Survey asks about instances of forced sex which respondents may or may not regard as crimes. Yet it is worth noting that in the early 1990s, the NCVS was redesigned to elicit more reports of sexual and domestic violence that may not fit the conventional mold of criminal attacks. In addition to being asked directly about rape, attempted rape or sexual assault, respondents now get a follow-up question about “forced or unwanted sexual acts” committed by a stranger, a casual acquaintance, or someone they know well.

The CDC study goes much further in asking about specific unwanted acts. But there are other important differences. For one, CDC survey respondents are not asked whether anyone has used physical force or threats to make them engage in a sexual activity, but “how many” people have done this (in their lifetime and in the past year). This wording removes the extra hurdle of admitting that such a violation has happened, and thus encourages more reporting. But could it also create “false positives” by nudging people toward the assumption that the default answer is affirmative—especially when preceded by a battery of other questions and statements about sexually coercive behavior?

A much bigger problem is the wording of the question measuring “incapacitated rape” (which accounted for nearly two-thirds of the CDC’s estimate of rapes that occurred in the past year). Respondents were asked about sexual acts that happened when they were “drunk, high, drugged, or passed out and unable to consent.” This seems to imply that “unable to consent” is only one of the variables and to include situations in which a person is intoxicated—perhaps enough to have impaired judgment—but not incapacitated as the legal definition of rape requires.

A CDC spokesperson told The New Republic that “being unable to consent is key to the CDC’s definition of rape.” Presumably, this is conveyed by the introduction to the question about alcohol- and drug-enabled rape: “Sometimes sex happens when a person is unable to consent to it or stop it from happening because they were drunk, high, drugged, or passed out from alcohol, drugs, or medications.” However, in a telephone survey, some people may focus only on the question itself and let the introduction slide by.

Moreover, the introductory message ends with an advisory that may create more confusion: “Please remember that even if someone uses alcohol or drugs, what happens to them is not their fault.” Obviously, the intended point is that even if you got drunk, you’re not to blame for being raped. But this vaguely phrased reminder could also be taken to mean that it’s not your fault if you do something stupid while drunk or on drugs. At no point are respondents given any instructions that could result in fewer reports of alleged victimization: for instance, that they should not include instances in which they had voluntary sex while drunk but not incapacitated.

For many feminists, questioning claims of rampant sexual violence in our society amounts to misogynist “rape denial.” However, if the CDC figures are to be taken at face value, then we must also conclude that, far from being a product of patriarchal violence against women, “rape culture” is a two-way street, with plenty of female perpetrators and male victims.

How could that be? After all, very few men in the CDC study were classified as victims of rape: 1.7 percent in their lifetime, and too few for a reliable estimate in the past year. But these numbers refer only to men who have been forced into anal sex or made to perform oral sex on another male. Nearly 7 percent of men, however, reported that at some point in their lives, they were “made to penetrate” another person—usually in reference to vaginal intercourse, receiving oral sex, or performing oral sex on a woman. This was not classified as rape, but as “other sexual violence.”

And now the real surprise: when asked about experiences in the last 12 months, men reported being “made to penetrate”—either by physical force or due to intoxication—at virtually the same rates as women reported rape (both 1.1 percent in 2010, and 1.7 and 1.6 respectively in 2011).

In other words, if being made to penetrate someone was counted as rape—and why shouldn’t it be?—then the headlines could have focused on a truly sensational CDC finding: that women rape men as often as men rape women.

The CDC also reports that men account for over a third of those experiencing another form of sexual violence—“sexual coercion.” That was defined as being pressured into sexual activity by psychological means: lies or false promises, threats to end a relationship or spread negative gossip, or “making repeated requests” for sex and expressing unhappiness at being turned down.

Should we, then, regard sexual violence as a reciprocal problem? Getting away from the simplistic and adversarial “war against women” model is undoubtedly a positive step, as is admitting that women are human beings with the capacity for aggression and wrongdoing—including sexual assault. On the other hand, most of us would agree that to equate a victim of violent rape and a man who engages in a drunken sexual act he wouldn’t have chosen when sober is to trivialize a terrible crime. It is safe to assume that the vast majority of the CDC’s male respondents who were “made to penetrate” someone would not call themselves rape victims—and with good reason.

But if that’s the case, it is just as misleading to equate a woman’s experience of alcohol-addled sex with the experience of a rape victim who is either physically overpowered or attacked when genuinely incapacitated. For purely biological reasons, there is little doubt that adult victims of such crimes are mostly female—though male children and adolescents are at fairly high risk: as criminologists Richard Felson and Patrick Cundiff report in a fascinating recent analysis, a 15-year-old male is considerably more likely to be sexually assaulted than a woman over 40. The CDC reports that 12.3 percent of female victims were 10 or younger at the time of their first completed rape victimization; for male victims, that number is 27.8 percent.

We must either start treating sexual assault as a gender-neutral issue or stop using the CDC’s inflated statistics. Few would deny that sex crimes in America are a real, serious, and tragic problem. But studies of sexual violence should use accurate and clear definitions of rape and sexual assault, rather than lump these criminal acts together with a wide range of unsavory but non-criminal scenarios of men—and women—behaving badly.

Source: https://time.com/3393442/cdc-rape-numbers/

Campus Sexual Assault

SAVE Testimony in Opposition to Connecticut Bill SB 19

Post author By saveadmin
Post date February 18, 2020

Good afternoon, my name is Susan Stewart and I am the Director, State Legislative Initiative for SAVE: Stop Abusive and Violent Environments. SAVE is a national organization working at both the federal and state level for fairness and due process on college campuses. I am testifying in opposition to SB 19.

Since the 2011 Dear Colleague Letter was issued by the federal Department of Education, SAVE has found there has been an explosion of both complaints by identified victims and lawsuits by accused students. For example, one University of Alabama student named Shannon said, “The assault was bad, but the way my school has treated me has created more trauma than the original assault did.” In the past nine years, over 550 lawsuits have been filed against universities for their alleged mishandling of these cases.

SAVE created a list of the Top 25 Worst Colleges in the Nation for Campus Due Process. Shockingly, two universities in Connecticut made our list: Quinnipiac University and Yale University.

In Doe v Quinnipiac, Doe claimed Quinnipiac opened a complaint against him “on behalf” of a student who herself did not file a complaint, destroyed evidence and subjected him to a 7-hour hearing where they banned exculpatory witnesses.

In Montague v Yale: Jack Montague claimed Yale violated its own procedures, committed fraud when administrators tried to convince the woman to file a formal complaint, and allowed the administrator who had tried to convince the woman, to chair the hearing board.

In fact, Connecticut may be the worst state in the nation for campus fairness. There are also these other compelling cases: the Nikki Yovino Sacred Heart University case, the case against Yale by Saif Kahn who is now suing Yale for $110 million and most recently two damning judicial decisions against UConn for violating students’ constitutional rights. District Judge Michael Shea wrote, “UConn’s procedures for investigating alleged misconduct and imposing discipline are so one-sided that the accused was denied an opportunity to present a meaningful defense.”

I oppose SB 19 for the following reasons: First, SB 19 includes an immunity clause for drinking and drug use which states “a student …who reports or discloses the alleged assault…shall not be subject to disciplinary actions for violation of a policy of the institution… if the report or disclosure was made in good faith..” This wording encourages false allegations. What happens when the institution determines that the report was not made in good faith?

Second, SB 19 establishes a Council on Sexual Misconduct Climate Survey, which includes 16 members and not one member represents students who have been accused of sexual misconduct. It calls for three representatives of victims of sexual assault, and not one representative of accused students. Why not?

Third, SB 19 requires the development of a sexual misconduct climate survey. Climate surveys are known to be expensive, difficult to administer, yield unreliable statistics and have fundamental problems. They do not lead to safer campuses. For example, in 2017 the results of one climate survey showed a shocking 41% of undergraduate women reported experiencing sexual assault since enrolling at the university. If that were true, what parents in their right minds would send their daughter to that school? Climate surveys are used to argue for policy change that potentially impedes on students’ due process rights.

For these reasons, I oppose SB 19. Connecticut lawmakers continue to propose or pass legislation that encourages false allegations or ultimately impedes students’ due process rights. Universities follow these laws resulting in mistreatment of both alleged victims and accused students with the ultimate outcome of more lawsuits against the universities!

SB 19 would trample on fairness, and perpetuate campus Kangaroo Courts. It is not the answer to a serious issue plaguing Connecticut’s higher educational system.

Thank you for your time and attention.