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Fallacies of Victim-Centered Methods

“Victim-centered” methods — also known as trauma-informed or “Start By Believing” — presume that the complainant has experienced significant physical and psychological trauma. As a result, victim-centered investigations emphasize the collection of evidence supportive of the complainant and discourage the collection of exculpatory evidence. Victim-centered investigations represent a departure from ethical standards of investigative impartiality and objectivity, thus removing the presumption of innocence from the accused.

“Trauma-informed” may be useful in the context of providing counseling and mental health services. But trauma-informed philosophy serves to bias the investigative process, rendering campus adjudications unreliable. The pitfalls of trauma-informed investigations in the criminal justice system have been well documented.

Following are five reasons why victim-centered investigations should not be utilized in campus adjudications:

1. REGULATORY REQUIREMENTS 

The new Title IX regulation contains several provisions designed to assure impartial and fair investigations on campus. The relevant provisions, with key words in bold, are cited below:

Section 106.45 (b)(1): A recipient’s grievance process must—

(i) Treat complainants and respondents equitably….

(ii) Require an objective evaluation of all relevant evidence—including both inculpatory and exculpatory evidence—and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness;

(iii) Require that any individual designated by a recipient as a Title IX Coordinator, investigator, or decision-maker, or any person designated by a recipient to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence….Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment;

2. CASE LAW

In a growing number of lawsuits, judges have issued rulings against universities because of their use of victim-centered, trauma-informed investigations. As of the end of 2021, SAVE had identified 7 appellate and 42 trial court decisions against colleges in which biased investigations were identified.

3. JUNK SCIENCE

Extensive analyses have documented the lack of a scientific basis to trauma-informed investigations, as revealed in a special issue of the Journal of Applied Research in Memory and Cognition:

Trauma-informed investigations gloss over the fact that excessive alcohol consumption is often a cause of inconsistent statements. Psychologist Elizabeth Loftus has commented that with alcohol-induced memory fragmentation, attempts to reconstruct events are “vulnerable to post-event suggestion” such as a person labeling a consensual act as rape.

Journalist Emily Yoffe concludes: “The result is not only a system in which some men are wrongly accused and wrongly punished. It is a system vulnerable to substantial backlash. University professors and administrators should understand this. And they, of all people, should identify and call out junk science.”

4. CRITICIZED BY LEADING TITLE IX GROUPS

Several organizations have issued reports and statements that are critical of trauma-informed investigations:

A UCLA Working Group, established by former California Governor Jerry Brown, issued a consensus statement concluding, “The use of trauma-informed approaches to evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of complainants in a manner that is incompatible with due process protections for the respondent.” In addition, 158 professors and legal experts endorsed an Open Letter Regarding Victim-Centered Practices

5. EDITORIALS

Following is a partial listing of editorials critical of the use of “victim-centered” and “trauma-informed” approaches in the college setting:

  1. SAVE: Doe v. Purchase College: OCR Review of Title IX Regulation Needs to Stop ‘Victim-Centered’ Abuses
  2. SAVE: PTSD, the Latest Pixie Dust Allegation for Campus Sexual Assault Cases
  3. Greg Piper: Appeals court blasts Title IX official for changing accuser’s claims, says it suggests biased proceeding
  4. SOS: EVERY MALE Should Fear the One Sided, Female Favored ‘Start By Believing’ Campaign
  5. Wendy McElroy: This Campaign Against Sexual Violence Strongly Favors Female Victims, Strips Men of Due Process
  6. Greg Piper: Victim-centered investigations create new victims.
  1. Eric Rosenberg: Victim-Centered Investigations in Title IX Disciplinary Proceedings: A Litigator’s Perspective
  2. College Fix: How ‘junk science’ got an innocent father jailed on invented child-molestation claims
  3. Alexander Pease: Popular Title IX training techniques ‘are at odds with the available science,’ Iowa State researchers find
  4. Madeleine Ngo and Sophie Xi: Two Penn profs sign letter denouncing ‘believe the victim’ policies for sexual assault 
  6. Rachel Frommer: Legal Scholars Call on Universities to Reform ‘Victim-Centered’ Sexual Misconduct Policies
  7. Nikita Vladirimov: Scholars denounce ‘victim-centered’ approach to sexual assault
  8. Greg Piper: Professors warn ‘believe the victim’ in Title IX is bringing back ‘satanic daycare’ panic
  9. Toni Airaksinen: Professors Condemn ‘Victim-Centered’ Title IX Investigations in Open Letter
  11. Christopher Perry: ‘Start-By-Believing’ Investigations Are A Multimillion Dollar Threat To Justice
  12. Amy Swearer: This Junk-Science Approach to Sexual Assault Cases Would Trample on Rights of the Accused
  13. SAVE: The ‘Junk Science’ Behind Trauma-Informed Theories
  14. Nikita Vladirimov: Report: ‘Believe the victim’ mentality undermines justice
  1. Emily Yoffe: The Bad Science Behind Campus Response to Sexual Assault
  2. Eugene Volokh: Don’t ‘start by believing’
  3. Josh Girsky: Lawsuit Alleges Bias in University Sexual Assault Investigation
  4. Amber Athey: REPORT: ‘Victim-centered’ view of sex assault erodes due process
  5. Jane Greenspan (Ret.) and Henry M. Sias: Title IX Investigations in Need of Reform
  6. Michael Bryant:  Penn student accused of rape sues university, citing gender, racial discrimination
  7. Robby Soave: Nate Parker’s Campus Rape Acquittal: ‘Believe the victims’ mantra is incompatible with the principles of justice and forgiveness
  8. Ashe Schow: Evidence should be most important in sexual assault investigations –
  9. Robby Soave: CU-Boulder Suspended Student for Rape, Before Interviewing Alleged Victims
  10. Jack Hunter: No Harassment, No Victim, No Investigation. Expelled Anyway.
  11. KC Johnson: USC and Investigatory Bias
  12. Ashe Schow: ‘Listen and believe’ actually hurts rape victims in the long run
  13. Edward Bartlett: This is What Happens When a University Prosecutes an Alleged Rape
  14. Ashe Schow: Yet another example of why colleges shouldn’t adjudicate campus sexual assault
  15. Victor Zheng: I Was Falsely Accused of Rape: ‘Victim-Centered Investigations’ are a Travesty of Justice
  16. Barbara Hewson: The feminising of justice that makes it hard for men charged with rape to get a fair trial, writes human rights lawyer
  17. Michael Conzachi: College Sexual Assault Investigative Process Now Compromised by University Police and May be in Violation of Federal Law
  18. Ashe Schow: ‘Victim-centered’ sex assault investigations designed to railroad accused
  19. College Fix: University of Texas tells its police to hide evidence that favors students accused of rape
  20. Samantha Harris: University of Texas ‘Blueprint’ for Campus Police Raises Fairness Concerns
  21. Christine Damon: US needs to restore impartiality in dealing with sexual assault allegations
  22. Anonymous: Reexamining our Sexual Assault Investigative Process
  23. Eugene Volokh: Court: George Mason University violated due process when expelling student for alleged BDSM-related sex assault
  24. Ashe Schow: University accused of racism in campus sexual assault lawsuit
  25. Jeannie Suk: Shutting Down Conversations About Rape at Harvard Law 
  26. Matt Lamb: Amherst plays down damning text messages by rape accuser, responding to ‘blacked out’ student’s suit
  27. Margaret Valois: Victim-Centered, Trauma-Informed Approach Defies Requirements for a Fair and Impartial Title IX Process
  28. Evan Gerstmann: In Too Many Sexual Assault Cases, Colleges Lack A Basic Understanding Of Fair Process
  29. Greg Piper: Judge smacks down Syracuse for ignoring myriad problems with rape accuser’s claims 
  30. Trent Cromartie: I Was a Victim of a ‘Victim-Centered’ Investigation