Categories
Uncategorized

The problem with victim-centred justice

Rape cases must be investigated properly for justice to be done.

In particular, campaigners are concerned about how this will affect rape complainants. A spokesperson from the charity Victim Support has told the BBC that giving police access to such personal data would ‘further deter victims from coming forward’. While the complainant can choose not to give consent, this might result in the prosecution not taking place.

The forms are a response to a series of rape and sexual assault trials that collapsed after messages contradicting the complainant were uncovered. The case of student Liam Allan was the most prominent. He was wrongly accused of rape and only spared jail time by the discovery, late in the day, of messages from the complainant which proved his innocence.

The head of the Crown Prosecution Service (CPS), Alison Saunders, stepped down last year. She had come under fire during her tenure, in part because of this issue of false allegations. In the wake of Allan’s and other trials collapsing following the failure of the prosecution to disclose evidence, she announced a review of all current rape cases.

Labour MP Harriet Harman argues in a piece for Harper’s Bazaar that the new forms should be adjusted so that the decision of the police to ‘mine’ someone’s data can be better scrutinised. This, she says, would ‘protect the victim without subjecting the defendant to the possibility of wrongful conviction’.

She worries that the information gleaned from these forms may be used by the defence as a means to discredit rape complainants. She says defences in rape cases are often concerned with ‘blackening the woman’s character’.

The use of a woman’s sex life, or how she dresses, as a means to discredit her in a rape trial may have been common in the past. But such defences are not being mounted today. A recent rape trial in Cork, Ireland, in which the defence lawyer argued that the fact that the complainant was wearing a ‘thong with a lace front’ proved that she had consented to sex, is a rare exception.

Harman and critics of these new forms are missing the real problem in rape trials today. There is no targeted attempt by police and prosecutors to undermine complainants’ ability to seek justice. Rather, the problems we are facing have been created by victim-centred justice, and a focus on driving up rape convictions which has come at the cost of proper investigation.

It is interesting that the controversy around these new consent forms has centred on rape cases, given they cover all sorts of cases. Is it more or less unpleasant to have a police officer read your groupchat messages if you’ve been sexually assaulted rather than stabbed? Does it become more invasive for police to look at your photos if you’re a woman or a man?

Of course, rape trials are unique in that they often boil down to one person’s word against another’s. But surely this means as much evidence needs to be gathered as possible? For those who have suffered the ordeal of sexual assault or rape, going through an investigation and trial will be deeply unpleasant. But the pursuit of justice is a serious thing, and it must be done properly.

These forms are only a symptom of a system that has thoroughly failed to deal with rape cases in a balanced way. Pressured by a history of injustice towards women, the justice system has embraced the ‘believe the victim’ narrative of contemporary feminism. Indeed, we now routinely refer to the ‘victim’ in sexual-assault trials, before it has even begun, let alone guilt has been established.

We need a justice system that recognises that rape is disproportionately conducted by men against women, but which also ensures that the prosecution of men is just and fair. By resisting measures to make the justice system more transparent and balanced, feminists and victim-support groups are doing women no favours. Worse, they are damaging the idea of innocent until proven guilty, which is something all of us depend on.

Ella Whelan is a spiked columnist and the author of What Women Want: Fun, Freedom and an End to Feminism.

Categories
Uncategorized

In Too Many Sexual Assault Cases Colleges Lack A Basic Understanding Of Fair Process

Colleges must remember to wait until the facts are in before making judgments in sexual assault cases.

People disagree over a lot of things when it comes to sexual assault on college campuses, but presumably, everybody agrees that a student accused of raping another student ought to get a fair process before he is expelled. The devil is in the details—what exactly is a fair process?

One would think though, that there are certain basic ideas that everyone would agree on. For example, there should be a difference between investigation and prosecution. In other words, when the college authorizes someone to investigate whether or not a rape took place, the investigator should begin with a neutral mindset rather than an assumption that the accused student is guilty.

Relatedly, if the university assembles a panel to hear the charges, the panel should also go into the hearing with a neutral mindset. The university’s position should be neither that the student is guilty or innocent until the university has been presented with the facts. It would be difficult to imagine any principles that are more basic to a fair process.

However, a recent case involving Clarion University of Pennsylvania, a public university, shows how deeply confused universities and their attorneys can be about the basic elements of due process, even in a hearing involving a charge as serious as rape. The case was recently discussed in the blog “Academic Wonderland.” In this case, the rape allegations were investigated by Matthew Shaffer, the university’s Director of Student Engagement and Development. Unfortunately, Shaffer and the university did not seem to be on the same page in terms of Shaffer’s role. Shaffer testified that he was a “neutral party during these proceedings.” However, during oral argument before an appellate court, the university’s attorney was asked by the judges about the fact that Shaffer seemed far from neutral at the hearing, because Shaffer offered his own opinions and did not just stick with the facts. Judge Thomas Ambro asked: “What about the conjecture or the opinion statements if you will by Mr. Shaffer with regard to what he believed happened, whom he believed, etc.? He went beyond the facts didn’t he?”

Counsel for Clarion replied, “He really was in the position of a prosecutor . . .” Judge Ambro replied, “Well that’s interesting because I thought he was the investigator for the case.” In response, the attorney seemed on the verge of calling Shaffer an “investigator/prosecutor” but then clearly thought better of it: “Well it’s an administrative proceeding, he’s an investigator slash . . . I mean he’s the one who presented.”

Judge Ambro was having none of it: “If you are saying he’s the prosecutor, you’re saying he’s not there to just get the independent facts, he’s there to be a prosecutor.”

Things only got worse. The lawyer for Clarion said: “I’m going to concede this. In the record, it does indicate that the normal function of him or someone in the same position was to present the university’s side of the case. It was not presented as this completely neutral thing.” But of course, the role of the university is supposed to be to decide if the accused student committed the rape or not. That is completely incompatible with the idea that there is a “university’s side” prior to the hearing. As judge Morton Greenberg retorted, “Was there a university side of the case before the hearing? I would have thought that there shouldn’t have been, that they should have been neutral to that point.”

In short, the university seemed to be deeply confused about whether they were giving the panel a neutral presentation of the facts or were making a prosecutorial case against the accused student. There was similar confusion about whether the university was supposed to decide upon the accused student’s guilt prior to the hearing.

To make matters worse, there is a very good chance that the accused student will lose this case anyway. That is because he chose not to attend the hearing at all. He made that decision because he was also being criminally charged and if he participated in the college hearing he would be effectively waiving his right to remain silent during the criminal investigation. This is a classic dilemma when there is both a criminal and civil case. To avoid such conflicts, judges in civil matters routinely delay the civil cases until the criminal cases are resolved. But colleges don’t do that because they want to resolve the matter quickly.

Criminal prosecutors are well aware of this dilemma and use it to their advantage in order to circumvent the student’s right to silence. For example, at a 2015 meeting of the International Association of College Law Enforcement Administrators, Susan Riseling, the Chief of Police at the University of Wisconsin at Madison spoke about how to get around the right to remain silent and use Title IX proceedings to circumvent the student’s constitutional rights:

[Riseling] also described a case at Wisconsin, in which the Title IX investigation was the only reason police were able to arrest a student accused of raping his roommate’s girlfriend.

The accused student denied the charges when interviewed by police, Riseling said. In his disciplinary hearing, however, he changed his story in an apparent attempt to receive a lesser punishment by admitting he regretted what had occurred. That version of events was “in direct conflict with what he told police,” Riseling said. Police subpoenaed the Title IX records of the hearing and were able to use that as evidence against the student.

“It’s Title IX, not Miranda,” Riseling said. “Use what you can.”

Riseling also suggested, “Title IX investigators should watch the police’s interview through a television feed, and prompt the detective to ask any additional questions.”

The rush to judgment in the Clarion case was particularly unfortunate because the university held its hearing before the DNA evidence became available. In fact, the DNA did not match that of the accused student and the police dropped all charges. Nonetheless, the student remains expelled.

A final matter to consider is that the accused student is African American. According to the complaint, African Americans are drastically overrepresented among Clarion students tried for sexual misconduct. A future post will discuss the issue of racial bias and sexual assault on campus. For now, it is worth noting that an African American student has been expelled from college by a process that seems confused about the most basic concepts of a fair hearing. He remains expelled even though the charges were dropped by the police as a result of the DNA evidence that the college hearing panel never saw.

Evan Gerstmann is the author of Campus Sexual Assault: Constitutional Rights and Fundamental Fairness (Cambridge University 2019) and is a Professor of Political Science at Loyola Marymount Univ.

I’ve always been interested in how we should balance individual and minority rights with majority rule. After several years practicing law in New York city, I found my true calling as a college professor and researcher. I’ve written about campus free speech, same-sex equality and racial justice for Cambridge University, The University of Chicago, and Harvard University. My latest book is “Campus Sexual Assault: Constitutional Rights and Fundamental Freedoms”.

Categories
Uncategorized

Victim-Centered, Trauma-Informed Approach Defies Requirements for a Fair and Impartial Title IX Process

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.

Categories
Uncategorized

A High-Ranking Police Officer Looks at Sexual Assault

The Kavanaugh hearings drove the problem of sexual assault way up on the national agenda.  Should we believe women complainants and thus disbelieve accusee men?  Start By Believing, an activist group with cells all over the country, would seem to hold yes. A prominent law academic is explicit on this matter.  A sexual assault complaint, writes Professor Sherry Colb, “is an eyewitness account of a credible person. The denial of the accused rapist, by contrast, is entitled to little evidentiary weight as it is fully explained by a desire to avoid conviction.”  If complaints result in shockingly few arrests and convictions, the argument goes, it is rank misogyny in police and DA offices that is responsible.

I have engaged these arguments in a recently published piece entitled “Why Not Believe Women in Sexual Assault Cases?”  (Touro L. Rev. 2018 v. 4 p. 101)  So I limit myself here to just mentioning a few of the unique factors at play in the sexual domain, especially the guilt, regret, and fear of a romantic partner’s wrath that make evaluating a sexual assault charge far more difficult than, say, one of robbery.

My piece relied largely on writing by academics, with my principal source being law professor and former dean Joan Howarth, who has had extensive first-hand experience sitting on assault tribunals at the university level. Because of the emotional immaturity of an appreciable number of young women, she warns, “`we believe you’ does not translate fairly into individual adjudications.”

To my great surprise, given the volume of work on sexual assault, I found no other professorial opinion founded on such hands–on experience. I was more perplexed to find no accounts by police or DAs, since they, arguably, have the best purchase to speak to complainant credibility.

I think I know why. While drafting my article, I looked for higher-ups among these groups–as well as decision-makers in college sexual assault proceedings–to test my thinking against that of investigators. In every case but one, I was stonewalled; either they simply would not talk to me or they told me candidly that such conversations were not authorized.  I can only conclude that charges of sexism are so explosive in our #MeToo world that a code of silence has to be imposed–anything to minimize the risk that a loose-tongued employee will question the reliability of complainant accounts, an opinion that were it to  appear in blogs or on the front pages, could bring down an organization’s leadership.

Fortunately, I found someone willing to stand up and speak frankly. A high-ranking police officer in a major metropolitan area, this interlocutor has supervised hundreds of sexual assault investigations by more than 30 police officers over a number of years.

The following interview took place over about two hours earlier this winter and was preceded and succeeded by a number of phone conversations.  The material below is not a verbatim account; I have had to rearrange the free-floating dialogue for clarity of exposition. But what follows is as fair and comprehensive account of the interview as I can manage, given that I did not tape it out of fear that the conversation would be stilted.  To make sure that I got it right, I asked my interlocutor to look over my draft.  No one in the law professoriate can fail to understand why the servant of the people does not want to be identified.

——————————————–

Who are the complainants demographically?

They run the gamut of race and class, the numbers being proportionate to the population at large. In age, they run from 18 to 40. Eighty percent or so are by people who are known to one another; 20% are by strangers. The latter are the easy cases once we find the culprit.  

Let’s focus on the harder cases.  Do students make up a share of the complaints you see?

Mostly not.  Those cases seem to be handled by the universities, at least in my jurisdiction.

How exactly do these cases come to you?

Quite often after the Event the woman does not know what to do. She wonders whether she made some bad decisions long the way. Should she have posted risqué pictures on social media? Made a Tinder date at the man’s apartment or her own?  Likely, she says nothing except to those very close to her. Through our new FETI program (Forensic Investigation Training and Interviewing) program, we are trying to get these women to go public quickly.  Often, however, complaints are filed days, weeks, months, and in some cases years later, when one or more friends or an anti-rape activist convinces her that she was assaulted and that it is her duty to come forward. The woman will often yield to this kind of pressure, among other reasons, because, sad to say, she seeks the psychological comforts of victimhood, of survivor status, where she is not alone in her predicament and has a cause to rally around.         

What a story.  What happens after a woman files a complaint with your office?

We take these complaints seriously; there are a lot of bad actors out there. We open a file and take down the information, asking specifically about marks left on the body and about witnesses.  Most often there are none of either.  We then grill the accused. We search databases for a criminal record. We want to get at the truth. You might be interested to know that it is not unusual for us to send a detective across the country to interview the accused.

What does the accused say?

He will most frequently, and not incredibly, claim that the sex was consensual. Since intercourse is most often preceded by consensual play, this puts us in a difficult position. Rape kits have proved helpful in a number of cases, but the existence of semen says nothing about whether the sex was consensual.

And if there is no corroborating evidence?

This happens most of the time because sex takes place in private and no bruises or other indicia of assault are present. We try to set up a “controlled call” with the accused. This requires the woman to phone the accused and try get him to implicate himself. Sometimes this works, but sometimes the woman refuses to go along. This gets in the way of our investigation.  Other times the man insists on a meeting. We are cautious here; we are concerned that the woman will be hurt. But we do this because there is no other way. In such cases the woman goes wired up.     

What happens if in the end the investigation is stymied?   

Absent peculiar circumstances, we have to explain why we cannot go forward. This is sometimes hard on complainants, but they usually see that we have tried.

Really?  How many complaints would you say end up in arrests?

Maybe 30%.

You know that the law does not require corroborating witnesses.

Of course, but some kind of corroboration is necessary when a man presents credible evidence of consensual sexual play, say through TV monitors or witnesses. We cannot arrest the accused on just the woman’s say-so.    

Is this why cases attrit to the extent they do?

There is more. A large number of women complainants simply do not understand the legal system in general or the requirements for sexual assault, in particular, including the difference between pressured and forced sex. They often think, for example, that just feeling violated establishes sexual assault. Or that if they have consumed a great deal of alcohol—which they have in maybe two-thirds of cases–they cannot be blamed for having consented. Of course, this is silly. They often drink precisely to get in the mood for sex. The man, moreover, has drunk the same amount as she has. Of course, if the woman has passed out there can be no consent.    

What happens when the woman is determined to press her case?

Many women are shocked to find out that they will have to confront the accused in court and thereby open themselves up to the risk not only of having their views challenged but also of having details of their behavior exposed.  They will then often recant or simply refuse further cooperation. They might do the same when they find out that the accused, whom they know, might be incarcerated. I am not speaking for all women of course. A good number of complainants follow through til the end, hence the 30% data point.  

A feminist might wonder whether you have women investigators on staff and, if so, whether they come down differently in these cases from the men.

We have women detectives, but there are no differences I can think of. Police in this area are so well trained professionally that complainants speak comfortably and candidly to them.

As a follow-up to this interview, I would like to talk to some of these women some time. Would you put me in contact with some of them?

Gladly.

Are there differences between how you look at these cases and how DAs do?

No, we work very closely with them and are almost always on the same page.

Why have you stuck your neck out to talk so frankly to me?

It is important to alert the public to the fact that the sexual assault data—including the one-in-five claim–are wildly inflated. Notwithstanding claims by activists, women need to know that the world is not as harsh as many claim it to be.  There are dangers out there, of course. But to the extent of such danger, women can and have to look out for themselves as when they get intoxicated and are alone with a man in an intimate setting. This raises expectations and this may make the woman feel more guilty if she does not follow through.  We need to educate women that, because of difficulties of proving the case, the authorities may not be able to help much in these cases.

Are you “Blaming the Victim?”  

Not at all; I am saying only that we are helped best when we help ourselves.

 

Source: https://lawprofessors.typepad.com/crimprof_blog/2019/04/guest-post-by-dan-subotnik-a-high-ranking-police-officer-looks-at-sexual-assault.html

Categories
Uncategorized

Trump administration is still funding ‘trauma-informed’ pseudoscience in rape investigations

Office of Violence Against Women won’t turn off the spigot

 

The Air Force said there was no “empirical evidence” to back its claims and it was based on “flawed science.” Arizona said it “creates the possibility of real or perceived confirmation bias.”

Nearly 160 scholars and legal experts, including two Harvard law professors and the co-founder of the Foundation for Individual Rights in Education, said it undermines the “objective collection and presentation of evidence in administrative, civil, and criminal sexual assault proceedings.”

Even a California judge scolded the University of California-Santa Barbara for using it in a Title IX proceeding.

Yet the Start By Believing campaign, which uses “victim-centered” investigations, “trauma-informed” theories and “believe the victim” mantras, continues to draw taxpayer money in its quest to predetermine the results of sexual misconduct investigations.

U.S. Attorney General William Barr must turn off the Justice Department spigot toward programs that undercut the professional codes governing these investigators, which require them to conduct their work in “an impartial, unbiased, and honest manner,” the Center for Prosecutor Integrity told the AG in a letter Wednesday.

Barr must step in because the center has hit a brick wall with the DOJ office identified as having jurisdiction over its request: the Office of Violence Against Women, “the same DOJ component that has provided much of the funding for Start By Believing.”

MOREJudge rebukes UCSB for using ‘trauma informed’ approach in Title IX

The center’s sibling nonprofit, Stop Abusive and Violent Environments, also recently sought to get Barr’s attention by publishing a Change.org petition that demands the revocation of federal money from Start By Believing programs.

The roots of the campaign go back 13 years. Start By Believing’s institutional home, the nonprofit End Violence Against Women International, published a report recommending a stark shift away from conventional interview techniques when the subject is nonconsensual sex.

It emphasized techniques that are likely to lead to conviction, undermine “potential defense strategies,” ignore red flags for false allegations, focus on statements by accused people that “provide an implausible or even absurd version of reality,” and discount inconsistencies in accusers’ statements.

The report goes so far as recommending that investigators avoid writing detailed reports in order to “minimize the risk of contradiction” by accusers, and that they play down exculpatory statements, including anything that makes the incident look like a “consensual sexual experience.”

Start By Believing launched five years later, and the vast majority of its grants have come from the Justice Department, though its nonprofit also received DOJ money in the years before the campaign launched.

“The DOJ continues to provide funding for conferences at which Start By Believing concepts and methods are taught” to criminal justice professionals, the center told Barr, including the trauma-informed methods that have drawn scrutiny from journalists and neuroscience experts as pseudoscience.

MORERBG says colleges railroad accused students

The letter cites federal and state scrutiny applied to such science-ish ideas.

An Air Force investigation in 2015 concluded that a technique known as “forensic experiential trauma interview” is not a “viable option” for its investigations. It said FETI supporters make “unfounded claims about its effectiveness” and use “flawed science” to cover up the fact the FETI “has never once been tested, studied, researched or validated.”

It also cites Arizona’s warning to prosecutors in the state in 2016 not to use Start By Believing techniques, because it could ruin their prosecutions if defense lawyers know that investigators are being told to enter an investigation with preconceived beliefs.

If Barr needed any more convincing that Start By Believing has no place among programs supported by the Justice Department, he should look at last fall’s statement signed by nearly 300 law professors, legal experts and scholars on due process in campus investigations.

It noted both the American public and progressive icon Justice Ruth Bader Ginsburg are on the record in support of protections for accused students that colleges largely withhold from them.

Start By Believing methods are appropriate for counselors and mental health professionals, not investigators, the center implores Barr. They contradict the very mission of DOJ, “to ensure fair and impartial administration of justice for all Americans,” and undermine the public trust in the system.

MORECity pays $85K to accused student for pro-accuser investigation

Categories
Uncategorized

Smollett Case Reveals the Danger of DOJ’s “Start by Believing” Push

Most people agree on one aspect of the Jussie Smollett farce: The Chicago Police Department did exemplary detective work. What would the investigation have looked like if the police had adhered to the admonition to “always believe the victim”?

“Believe the victim” is a moral mantra with a ferocious backlash against anyone who expresses disbelief. The emotional maelstrom surrounding the demand obscures what should be a focus of debate: What are the legal implications of unconditional belief? One is that police procedure would handle “victim” crimes, like rape or hate attacks, in a remarkably different manner than they do now.

The Department of Justice (DOJ) has funded a blueprint for changing police procedure toward “victims,” which is being aggressively advocated in America and beyond. As a woman who did not report her own rape due to fear of a police ordeal, I know law enforcement needs to improve. But this is the wrong direction.

The blueprint comes from End Violence Against Women International (EVAWI)—an organization supported by the Department of Justice’s Office on Violence Against Women.In the last several years, EVAWI has received over 20 grants from the DOJ for millions of dollars. The purpose is to “provide technical assistance on the law enforcement response to sexual assault and VAWA [Violence Against Women Act] forensic compliance.” EVAWI’s “Start by Believing” global campaign seeks to improve “criminal justice responses to sexual assault.”

Although the campaign applies specifically to sexual abuse, lines blur when alleged hate crimes involve slurs of f****t, as Smollett’s alleged attack did. As a practical matter, the police methodology used for one category of victim would become its approach to others. Start by Believing states, “Of course, these issues” of evolved police procedure “are relevant for any type of investigation.”

The police are to view all accusations as true, which removes the presumption of innocence from the accused and neutrality from the police.

The campaign’s Law Enforcement Action kit sketches the proposed restructuring of police ethics and procedure. The core of the kit is the manual “Effective Report Writing: Using the Language of Non-Consensual Sex,” which, like EVAWI’s Online Training Institute, was facilitated by DOJ grants. (Note: EVAWI’s kit speaks of “victims” or “suspects,” and it never uses the word “alleged.”)

The manual is a game-changer. And, as a woman who did not report her own rape due to fear of a police ordeal, I know law enforcement needs to improve. But “Start by Believing” is the wrong direction.

The police are to view all accusations as true, which removes the presumption of innocence from the accused and neutrality from the police.  According to EVAWI, police are to “recreate the reality of the sexual assault from the victim’s perspective.” In doing so, the police report should “not highlight the changing statements made by the suspect.”

This contrasts with the current policy of seeking both inculpatory and exculpatory evidence, including shifts in story, which are made available both to the prosecution and to the defense. As attorney Scott Greenfield of the Simple Justice blog states, “Cops have no business believing or disbelieving. Crimes aren’t a matter of what one believes, but what the facts reveal.”

The victim is to be showcased; the suspect is to be discounted.

With EVAWI, the police investigator is an agent of the prosecutor rather than an independent fact finder. The stated goal is a “successful prosecution,” which means “an effective report must be prepared by the investigator in anticipation of potential defense strategies,” and it must include “the information necessary to undermine them.” The paper identifies the three main defense strategies to be countered: impeachment by omission, impeachment by contradiction, and motions to suppress.

Consider impeachment by contradiction. The kit tells police investigators to refrain from “a detailed, written summary of events” for any victim or witness who provides the particulars elsewhere. If inconsistencies arise between accounts, investigators should highlight those that “corroborate the victim’s statement.” Statements from the suspect should also feature “those that corroborate the victim’s account or provide an implausible or even absurd version of reality.” The victim is to be showcased; the suspect is to be discounted.

Ironically, the pro-prosecution approach may benefit the defense. UCLA law professor Eugene Volokh explains,

In cases that proceed to trial, defense counsel likely could impugn investigators and claim that alternative versions of the crime were ignored and/or errors were made during the investigation as a result of confirmation bias created by the “belief” element of the Start By Believing campaign.

Nevertheless, EVAWI takes a further plunge into the subjective. “Another strategy for effective report writing is to include details about what the victim was thinking and feeling—before, during, and after the sexual assault” in order “to see why the victim might have acted in ways that seem counter-intuitive.” If a woman appeared enthusiastic about sex, for example, her feeling of peer pressure could explain this behavior. Police work is to credit unverifiable accounts alongside hard evidence.

The possibility of a false allegation is also discounted despite due process being a constitutionally guaranteed right, with the neutral investigation of crime being its hallmark.

The Chicago Police Department “believed” Smollett in exactly the way it should have. His account of the crime was taken seriously, and every lead was followed. Red flags were not ignored, however; Smollett knew the position of a camera that should have captured the attack, for example, and the officers noted this unusual fact. Nevertheless, Smollett was classified as a “victim” until the “47th hour” when the police stopped believing.

What cases like Smollett require is more Chicago and less “always believe.”

This was the last hour of the two-day hold that police had on the Osundairo brothers, who finally claimed they had attacked Smollett at his request. The police then turned their focus to Smollett as the possible perpetrator of a hoax, not because they were anti-victim but because they were pro-fact. The investigation was textbook detective work.

It was also textbook police ethics, according to the Canons of Police Ethicsfrom the International Association of Chiefs of Police and the Code of Ethics of the Council of International Investigators. The World Association of Detectives affirms, “We will be faithful and diligent…and to determine the true facts and render honest, unbiased reports in reference thereto.”

What cases like Smollett require is more Chicago and less “always believe.”

Categories
Uncategorized

An Open Letter to Attorney General William Barr

 

Federal tax dollars are going to fund a “Start By Believing Day” on April 3, 2019. While this may sound laudable, what would you think if you were a victim of a crime and the investigator would “Start By Believing” the suspect?  This is why I wrote this:

I read that the Justice Department supports a campaign entitled, “Start By Believing.” This may be an appropriate notion for a support group, maybe even for a mental health professional, but it has no place in matters of justice. For members in the judiciary system, the byword should be “Start By Listening” – and listen to both sides.

The ancient Romans used to say, “Ei incumbit probatio qui dicit, non qui negat.” In legal matters this means the burden of proof is on the one who declares, not on the one who denies. In America, we call it the presumption of innocence.

One of the things that makes this country great is the legal principle that one is considered innocent unless proven guilty.

It is as preposterous for an investigator to start by believing the accuser as it is for one to start by believing the accused. Law enforcement should be equally concerned in the prosecution of the wrong-doer as in the defense of the innocent. Ethical investigators should conduct their research honestly, impartially, and without bias.

Last year, an office in the Department of Justice awarded a $400,000 grant to expand the “Start By Believing” campaign. Almost $9 million, most of it from the Department of Justice, has been donated to “Start By Believing” and related programs. Some of this money will fund a “celebrate” Start By Believing Day on the first Wednesday in April.

This is more than just money wasted. This sort of funding is directly opposed to the principle of fairness. Those tax dollars are going towards an idea that is contradictory to the notion of due process. The concept of “Start By Believing” is completely incompatible to the presumption of innocence.

I ask the Attorney General and all people of logic and reason to suspend funding for the “Start By Believing” campaign.

Categories
Uncategorized

Virginia Student Accused of Sexual Harassment Says School District Treats Men More Harshly Than Women

VIRGINIA STUDENT ACCUSED OF SEXUAL HARASSMENT SAYS SCHOOL DISTRICT TREATS MEN MORE HARSHLY THAN WOMEN
8:06 PM 03/18/2019 | EDUCATION
Neetu Chandak | Education and Politics Reporter
A lawsuit on behalf of a Virginia student accused of sexual harassment said Fairfax County Public Schools treated male students “disproportionately harsher” than female students in sexual harassment cases. The 18-year-old male student, referred to as “John Doe” in the lawsuit, said the district violated his free speech, due process rights and did not investigate the situation properly. Doe was suspended and sent to a different school, according to the lawsuit given to The Daily Caller News Foundation by attorney Jesse Binnall.
A Robinson Secondary School female accused two male students of sexual harassment after her buttocks were allegedly slapped in December 2018. Surveillance video showed Doe did not hit the female student, according to the lawsuit. Doe befriended the female student who was new to the school.
“Doe and Student A had classes together and would see each other at school outside of class,” the lawsuit said. “Doe flirted with Student A, which included friendly conversations, putting his arm around her and playfully poking her in class. Student A did not reject these overtures. In fact, she would often seek out Doe’s company and return his flirtations.”
The lawsuit claims the female student “colluded” with her friends to make false statements and the assistant principal was allegedly “seeking evidence that was inculpatory and ignored exculpatory evidence.”
Binnall told TheDCNF one of the witnesses changed her story. “If a male student and female student are both engaged in mutual sexual contact or touching on school grounds, it is common for the male student to be punished and for the female student not to be punished, based on gender,” the lawsuit said. Doe’s punishment could affect his college wrestling scholarship and entry to a “prestigious” university unless his record gets cleaned by a judge, The Washington Post reported Sunday. A hearing is expected March 22.
“He was never given a fair shot to make his case to prove that he was innocent in a school district that doesn’t even have a presumption of innocence,” Binnall told TheDCNF. John Torre, a spokesman for FCPS, would not comment on the specifics of the case to WaPo, but said the school district “thoroughly investigates all allegations of Title IX violations and takes action, where appropriate.”
Title IX does not allow sex-based discrimination to education programs receiving federal funding. Education Secretary Betsy DeVos proposed sweeping changes to Title IX to clarify students’ rights and schools’ legal obligations in November 2018. FCPS is dealing with two other federal lawsuits over mishandling of sexual allegation cases, according to WaPo. The district is the 10th largest in the U.S. and serves more than 187,000 students. Robinson Secondary principal Matt Eline could not provide comment on the case. FCPS did not immediately respond to The Daily Caller News Foundation’s request for comment.
Categories
Uncategorized

Missouri NAACP branch backs changes to Title IX process

3-15-19
COLUMBIA, Mo. (AP) — A Missouri branch of the NAACP on Friday announced support for legislation that would change how colleges and universities handle sexual assault complaints.

St. Louis County NAACP President John Gaskin III in a statement praised a House bill that supporters say is aimed at making procedures for handling Title IX complaints more fair for the accused. Title IX is a federal law that bans sex-based discrimination in education, including sexual harassment and rape.

“The denial of due process at Missouri’s colleges disproportionately impacts African American men,” Gaskin said, “And that’s why we call for immediate due process reforms.”

Universities and victims-rights advocates have criticized the legislation, saying it could dissuade victims from coming forward.

Republican Rep. Dean Dohrman’s bill would guarantee those involved in complaints the right to an attorney at their own expense and the right to cross-examine witnesses. If the measure becomes law, the university decision maker could be questioned and kicked off the case if they are biased or have a conflict of interest.

The bill also would require that colleges “refrain from using the term ‘survivor’ or any other term that presumes guilt” before a final decision is reached.

Cases could be appealed to the state Administrative Hearing Commission, where two of three sitting members have ties to supporters of the bill.

Gaskin also on Friday defended David Steward, a wealthy St. Louis businessman who is financially supporting a nonprofit that’s pushing the legislation.

Steward, who is black, previously served as a University of Missouri curator and now is a Washington University trustee.

Gaskin said opponents are trying to hurt Steward’s reputation “simply because he had the courage to stand up for civil rights on our college campuses.”

Categories
Uncategorized

Worst university in America for due process asks judge to hide accused student’s lawsuit

Otherwise will ‘intimidate’ everyone in other sexual misconduct investigations

 

Washington University in St. Louis has twice earned the lowest ranking in America for sexual misconduct policies in the annual due-process report by the Foundation for Individual Rights in Education.

These aren’t outliers for WUSTL, best known for being mentioned in an episode of The Office, since FIRE has only issued its report twice. It earned a score of zero on the 2017 report and one on the 2018 report. The scale is 20.

The private university does not offer “timely and adequate” written notice to accused students, time to prepare with evidence, impartial fact-finders, “meaningful” hearing process, the right to present to fact-finders or meaningful cross-examination, active participation of an advisor, or meaningful right to appeal.

It neither uses the “clear and convincing” evidence standard, the next step above the coin-flip “preponderance” standard, nor requires unanimity from adjudicators in decisions. Its sole improvement in 2018 was less-than-total presumption of guilt.

If you didn’t think WUSTL could get any worse, look at its moves in court.

Following an ambiguous order from a federal judge in a due-process lawsuit by a student accused of sexual misconduct, WUSTL wants the lawsuit sealed. Completely. Including FIRE’s due-process report that names and shames the university.

In an opposition filing Monday, the university said the “excessive detail in the Complaint and the sensitive nature of the subject matter” should render it unavailable to the public in any form.

The anonymous student admitted to an error identified by the university: that “identifying information of the parties as well as nonparty witnesses” was incorrectly included in the exhibits when the suit was filed Feb. 22. He asked the court for permission to file the exhibits under seal.

That wasn’t enough for WUSTL. It claims the complaint itself and docket entries, which were posted online, can also identify parties and witnesses.

The judge ordered the student to refile the complaint and attached exhibits under seal and use “the initials of nonparties” in exhibit names. He asked the judge for permission to unseal several exhibits, including one that includes the name and photo of a member of the adjudication panel who showed “bias.”

“Given the sensitive nature of the subject matter, coupled with these early difficulties in
maintaining appropriate confidentiality, there is good cause” to seal the lawsuit entirely, WUSTL argues in the Monday filing:

It would infringe upon the privacy rights of the complainant [accuser], the respondent [accused], and the non-party witnesses to that investigation [including WUSTL staff] if their identifying information were to be disclosed to the public. Such disclosure would also serve to intimidate parties, witnesses and panel members in other sexual assault investigations and deter them from participating in the process out of fear that their identities could be later revealed in the public record.

Washington University in St. Louis tries to hide accused student’s due-process lawsuit from the public by The College Fix on Scribd

MOREWUSTL gets a zero on FIRE’s first due-process report

The university claims that the 88-page lawsuit – since redacted by the plaintiff – is “unnecessarily detailed and graphic” to the point that the very “context of the narrative” could identify individuals.

This context? “References” to the student organization where the accuser and accused met; her ex-boyfriend’s initials; a description of the accused student’s “alleged sexual incident” with his ex-girlfriend; “other incidents of excessive alcohol consumption and the taking of psychiatric medications.”

The university also cites “references” to a student protest where the accuser allegedly spoke about the accused. “It would not take much effort to connect the dots and determine the identities of those involved,” particularly because the lawsuit uses “real initials.”

The College Fix has covered due-process lawsuits by accused students for several years, and none of these purported violations of confidentiality is unusual. They are standard operating procedure, to the point where the summaries issued by judges include the same details.

One particularly notable incident: A California appeals court included the name of the potentially hallucinatory medication the accuser was taking – hidden by the university – when she accused another student of sexual assault.

WUSTL wants the entire record hidden from the public “at least until” the judge rules on whether the accused student can seek relief.

The filing was flagged by Brooklyn College Prof. KC Johnson, who chronicles Title IX litigation. He noted that FIRE’s 2017 report – where WUSTL received a zero – was among the exhibits the university wants to hide.

.@WUSTL–two-time last-place finisher in @TheFIREorg survey of top 50 universities’ policies on fairness in adjudications–urges court to keep secret not merely sensitive material but entire (redacted) complaint by acc’d student.

View image on Twitter

Ironically, one of the exhibits that @WUSTLnews wants to keep secret is…@TheFIREorg survey ranking it 53rd out of 53 schools (0 out of 20 in terms of rights provided) in terms of fairness in adjudications. Here’s a link to the survey:https://www.thefire.org/spotlight/due-process-reports/due-process-report-2017/  pic.twitter.com/Zww0NnYQ8l

View image on Twitter
See KC Johnson’s other Tweets

Johnson provided The Fix a list of the exhibits from the docket and said the accused student “wanted exhibits from the investigation sealed but not the others.”

The exhibit names only identify the accuser as “Jane” or “Jane Doe,” use honorifics and last names for those who appear to be witnesses (“Exhibit Panel Interview”), and identify individuals in text conversations by their initials.

The only person named in the docket list is Vice Chancellor for Student Affairs Lori White. She shows up in a letter expelling the plaintiff and a “2019 Letter.”

Judging by the exhibit names, the list includes other public documents besides the FIRE report. They include a 2017 “Dear Colleague” letter (probably this one), “Improving WashU’s Response” (a likely candidate) and “University Under Investigation” (a student newspaper report).

Exhibit list from John Doe v. Washington University, Case No.: 4:19-cv-00300-JMB by The College Fix on Scribd

Read the filing and exhibit list.