A ‘near-religious teaching’
By law, universities are required to implement grievance procedures providing for “prompt and equitable resolution” of complaints of sexual discrimination. In 2001 the Office for Civil Rights issued its Revised Sexual Harassment Guidance mandating that universities undertake “adequate, reliable, and impartial investigation of complaints” and employ “[p]rocedures that . . . will lead to sound and supportable decisions.” Likewise, the OCR’s 2011 Dear Colleague Letter on campus violence explained, “a school’s investigation and hearing processes cannot be equitable unless they are impartial.”
Despite these clear requirements for impartiality, many campus rape activists have embraced a concept called “victim-centered” investigations. Victim-centered investigations can be defined as procedures that emphasize the collection of corroborative evidence supportive of the complainant and discourage the collection of exculpatory evidence, thereby increasing the likelihood of a finding of responsibility. Victim-centered investigations represent a departure from ethical standards of investigative impartiality, neutrality, and objectivity, thus removing the presumption of innocence from the accused.
A training program by the consulting firm Margolis Healy & Associates instructs college investigators to “Always approach a case believing that ‘something’ occurred” (slide 26), to obtain “Documentation of sensory and peripheral details from the victim’s perspective” (slide 27), and to “Focus on offender behavior – not victim behavior” (slide 28).
Recently the University of Texas School of Social Work published a “Blueprint for Campus Police” based on the victim-centered model. The Blueprint is particularly brazen in its recommendations that investigators should seek to anticipate and counter defense strategies (Table 7.4) and presume the truthfulness of the accuser:
- “The victim’s trauma response may make them appear less credible due to fragmented or lost memories and their attempts to make sense of what happened. Whereas, the alleged perpetrator knows what happened and therefore, appears to make more sense, which can be mistaken for credibility.” (p. 97)
- “Victims often self-blame and feel bad about what happened, while alleged perpetrators often don’t feel badly about it, except for being caught.” (p. 97)
- “Studies have consistently shown that detecting deception is difficult, so officers may not realize when a perpetrator is lying.” (p. 97)
Harvard Law School professor Jeannie Suk describes the always-believe-the-victim mantra as a “near-religious teaching” that is certain to harm rape victims: “When the core belief is that accusers never lie, if any one accuser has lied, it brings into question the stability of the entire thought system, rendering uncertain all allegations of sexual assault.”
Numerous commentators have criticized the “victim-centered” approach:
- It “destroys the public’s confidence in the system and willingness to believe actual rape victims.” – Christine Damon
- It “is attempting to turn a neutral institution – its campus police – into an advocate for one party.” – Editors of College Fix
- It is “an attempt to railroad accused students while looking impartial.” – Ashe Schow
“Victim-centered” investigations are a key provision in the Campus Accountability and Safety Act (CASA), Sections 4 and 7. “Victim-centered” investigations represent a negation of fundamental notions of impartiality and objectivity in campus rape investigations.
SAVE recommends that institutional officials who investigate alleged sexual conduct violations follow justice-centered investigative procedures—
- discharge their duties with objectivity and impartiality.
- make reasonable efforts to contact all potential witnesses, in addition to those recommended by the complainant or accused student.
- seek to gather and disclose both inculpatory and exculpatory evidence, and make all such evidence available to the complainant and the accused.
- thoroughly document and/or videotape all communications with the complainant and accused, as well as with potential witnesses, evidence collected, and interviews conducted, which shall be made available to the complainant and accused prior to any institutional disciplinary hearing.
- compile and evaluate evidence in an impartial manner before rendering an opinion.
- not serve as victim advocate, prosecutor, adjudicator, or appellate adjudicator for the same case.
- October 26: Railroading the Innocent: SAVE Calls on University Administrators to End ‘Victim-Centered’ Investigations
- September 19: How ‘Victim-Centered’ Investigations Undermine the Presumption of Innocence and Victimize the Innocent
- Eugene Volokh: Don’t ‘start by believing’ – Dec. 15
- Josh Girsky: Lawsuit Alleges Bias in University Sexual Assault Investigation – Nov. 16
- Amber Athey: REPORT: ‘Victim-centered’ view of sex assault erodes due process – Oct. 25
- Jane Greenspan (Ret.) and Henry M. Sias: Title IX Investigations in Need of Reform – Oct. 1
- Michael Bryant: Penn student accused of rape sues university, citing gender, racial discrimination – Sept. 28
- Robby Soave: Nate Parker’s Campus Rape Acquittal: ‘Believe the victims’ mantra is incompatible with the principles of justice and forgiveness – Aug. 17
- Ashe Schow: Evidence should be most important in sexual assault investigations – Aug. 15
- Robby Soave: CU-Boulder Suspended Student for Rape, Before Interviewing Alleged Victims – Aug. 8
- Jack Hunter: No Harassment, No Victim, No Investigation. Expelled Anyway. – Aug. 8
- KC Johnson: USC and Investigatory Bias – Aug. 1
- Ashe Schow: ‘Listen and believe’ actually hurts rape victims in the long run – July 11
- E. Bartlett: This is What Happens When a University Prosecutes an Alleged Rape – June 10
- Ashe Schow: Yet another example of why colleges shouldn’t adjudicate campus sexual assault – June 1
- Victor Zheng: I Was Falsely Accused of Rape: ‘Victim-Centered Investigations’ are a Travesty of Justice – April 20
- Barbara Hewson: The feminising of justice that makes it hard for men charged with rape to get a fair trial, writes human rights lawyer – April 13
- Michael Conzachi: College Sexual Assault Investigative Process Now Compromised by University Police and May be in Violation of Federal Law – March 26
- Joseph Roberts: Vindication for a Student Suspended from Savannah State University – March 23
- Ashe Schow: ‘Victim-centered’ sex assault investigations designed to railroad accused – March 15
- College Fix: University of Texas tells its police to hide evidence that favors students accused of rape – March 14
- Samantha Harris: University of Texas ‘Blueprint’ for Campus Police Raises Fairness Concerns – March 11
- Christine Damon: US needs to restore impartiality in dealing with sexual assault allegations – March 10
- Anonymous: Reexamining our Sexual Assault Investigative Process – March 9
- Eugene Volokh: Court: George Mason University violated due process when expelling student for alleged BDSM-related sex assault – March 4
- Ashe Schow: University accused of racism in campus sexual assault lawsuit – Jan. 6
- Jeannie Suk: Shutting Down Conversations About Rape at Harvard Law – December 11
- Matt Lamb: Amherst plays down damning text messages by rape accuser, responding to ‘blacked out’ student’s suit – July 23