Month: January 2018

Stop Abusive and Violent Environments

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

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

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

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

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 Although this guidance has been rescinded, many college Title IX programs continue to follow its admonitions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harry W. Power, PhD

Professor Emeritus of Behavioral Ecology, Rutgers University

In recent years there have been hundreds of cases across the country of men having allegedly sexually assaulted women where there was insufficient objective evidence to determine whether a crime had occurred, and in some cases, whether any kind of sex or even encounter had occurred.  Examples include the “Mattress Girl” case in NY, the Corey Mock case in TN, the Jordy Johnson case in MT, the Owen Labrie case in NH, dozens of “John Doe” cases in nearly all states, and most infamous of all, the Rolling Stone hoax about events that never happened in VA or anywhere else.

In all of these cases, some have asserted that the criminal justice system should always award women the benefit of the doubt on grounds that they always tell the truth.  Although seldom stated, the implication is often present that women cannot lie under such circumstances, but men can and do.  This claim (hereafter the claim) has been cited in many proceedings as if it were evidence that the female complainant is telling the truth, it may have affected jury decisions, it certainly has affected the outcomes of institutional proceedings (e.g., colleges and universities, most of which offer only kangaroo courts as their form of “justice”), and it has also affected the sentences of some of the convicted men.

This claim of unwavering female honesty in what are “he-said/she-said” cases cannot be treated as self-evident because it fails several common sense tests.  For example, in cases where objective evidence tells whether a particular version is true or false, do women always say what the evidence proves?  Which party is telling the truth in “she-said/she-said” cases?  Both?  Which party is telling the truth in “he-said/he-said” cases?  Neither?

On what grounds would a rational person decide that in cases of alleged sexual assault involving a man and a woman that the woman would always tell the truth, but in cases involving members of the same sex that only one was telling the truth, neither were telling the truth, or both were telling the truth?  Are we to conclude that all white women claiming to have been raped by black men in the Jim Crow era were telling the truth?

It should be obvious that determining who is telling the truth and who is lying must be based upon objective evidence, not competing versions of alleged events.

There is a more rigorous way to test the claim than by common sense tests.  That is by testing whether the biological requirements for the claim to be true are met.  To be true, the cost/benefit structure of truthfulness must be different for men and women otherwise they would behave the same.  But if the cost/benefit structure for men and women were consistently different in the same way over time, a sexual dimorphism in honesty would evolve.  For that to happen, on average women must gain in reproductive success when they tell the truth about contested allegations of sexual assault and lose when they lie, and men must lose in reproductive success when they tell the truth but gain when they lie.

This would probably show up as a pleasure response when women tell the truth and depression when they lie, and the opposite would occur in men.  This can be predicted because a trait can most easily spread and become universal (an implication of the claim) if it immediately rewards the trait bearer for employing it, and punishes the bearer for either not employing it or acting directly contrary to it.  This hypothetical sexual dimorphism would not be expected to be fully developed at birth, but rather to develop until sexual maturity, particularly during the period of puberty. This would be because it would have no function before sexual maturity, and delayed development reduces the physiological and behavioral costs of having a particular trait until its expression becomes adaptive.  Further, it could be expected to develop in synchrony with other sexually dimorphic traits such as breasts, and relative size and muscularity.  It would thus be under the influence of testosterone and estrogen as well as other hormones.

Measuring the relative honesty of boys and girls from birth to sexual maturity about sexual matters would be a way to test the claim.  No difference in honesty about sexual matters would be expected in small children, but increasing honesty in girls and decreasing honesty in boys would be expected as they matured, especially during puberty.  I don’t believe any such study has ever been done or that any scientist would even be interested in doing it because any parent with both sons and daughters already knows the answer.

Since the claim relates only to allegations of sexual misconduct, women would not be expected to be honest about everything, and men would not be expected to lie about everything.  If the claim were extended to cover all situations where lying is possible, it would immediately be discarded as ridiculous since everyone knows lying women and honest men.  Thus for the claim to be even minimally plausible, it must be shown how a sexual dimorphism in honesty could be adaptive in the context of allegations of sexual misconduct, but not in other contexts.  This requires that relative honesty about sexual conduct be qualitatively different from relative honesty in all other contexts.  There is no obvious reason to believe this, therefore it is the responsibility of the proponents of the claim to demonstrate it.

Decades ago, the English scientist, John Maynard Smith, introduced game theory into the study of the evolution of behavior.  At the time the Cold War was on and the press was referring to various people as “hawks” or “doves”.  People were naturally curious as to which was the better strategy.  Maynard Smith wanted to keep the analysis as simple as possible so he defined the “hawk” strategy as “always attack”, and the “dove” strategy as “always retreat”.  If he had left his analysis there, “hawk” would always have won because always attacking would have led to “hawks” possessing all the resources.  But no animal, human, or group always attacks.  Thus Maynard Smith defined a third strategy, “bourgeois”, in which the individual either attacks or retreats based on which would likely provide the greater net benefit: attack when likely to win or defending vital resources, and retreat when likely to lose.  Using a very simple numerical reward schedule, Maynard Smith showed that the “bourgeois” strategy would be the only one to survive through evolutionary/generational time.  This theoretical demonstration mirrors what we know about animals and humans.  They may vary in relative aggressiveness based on their physical properties, circumstances, and experience, and those of their opponents.  But none is always a “hawk” or “dove” although they may vary in the direction of one more than the other depending on their a priori probability of winning.

The simple game of “hawk”, “dove”, and “bourgeois” can be modified to determine whether there can be a sexual dimorphism in honesty about allegations of sexual assault in humans.  The three players in this game can be called “consistent liars”, “truth-tellers”, and “strategic liars”.  “Consistent liars” are always men and always lie about allegations of sexual assault.  “Truth-tellers” are always women and always tell the truth about such allegations.  “Strategic liars” can be either men or women, and either lie or tell the truth, depending on which version is more favorable to them and yet still likely to be believed.  It is obvious that the “strategic liar” will win in evolutionary/generational time because he/she will act on the particulars of a given case whereas the two alternatives will always do the same thing regardless of their chances of winning.

The best way for a player to be successful as a “strategic liar” is to develop a reputation for honesty because then he/she will be more likely to be believed in cases where there is insufficient objective evidence to determine the truth.  The key to a reputation for honesty is to always tell the truth when it isn’t likely to be harmful to do so.  And that, in turn, requires normally being in circumstances where telling the truth is helpful for the player’s survival and reproductive success, and harmful only in very rare cases.

The proponents of the claim clearly do not understand that it is impossible to evolve obligatory truth telling in cases of alleged sexual assault or any other context since the “strategic liar” will always outcompete the obligate “truth-teller” over evolutionary/generational time.  Consequently they do not understand that their claim is not true because it cannot be true.

Because it is a biological impossibility, the claim reduces at best to a folk belief, and at worst to a form of superstition equivalent to the claimed presence of spectres in the Salem witch trials.  As a society, we cannot afford to return to using folk belief and superstition in lieu of evidence.

Adhering to the claim is a gross insult to women because it implies that they are too stupid to behave adaptively in changing and precarious circumstances.  It ignores the fact that strategic lying is one of our best defenses against a hostile world for when it works, we are able to control one of the most important resources humans can have: information.  If women were truly incapable of lying in he-said/she-said cases of alleged sexual misconduct, the concept that women are or even could be equal to men is preposterous.  Since they would always be children in functional terms (the equivalent of adults forever believing in Santa Claus), women would always have to be wards of someone or something for their own protection.  Thus the most insistent of the proponents of the claim are unwittingly demanding that women again have a reduced social status for their own good because they need to be protected from their own naivety.

Anyone favoring sexual equality under law will reject the claim as subversive to that goal, and a monstrous set back to the cause of women’s rights.  Building up the legal status of women at the expense of men cannot result in a better, more harmonious society.  It can only intensify the conditions it proposes to eliminate, including violence against women by men otherwise unable to protect themselves against lying women.  This would be a case where the unintended consequences of an action would be the most common and most severe of all the consequences of that action.

Would eliminating the claim from all aspects of investigation, prosecution, conviction, and sentencing allow some sex offenders to go free?  Undoubtedly.  However, acquittal in such cases is only a mistake and may be rectified in time as forensic evidence technology improves, but assuming the claim to be true even though the assumed trait could never evolve is far worse:

-it inevitably results in the false conviction of some men;

-it is an open invitation to corruption and extortion by lying women;

-it is an act of tyranny contrary to our society’s long-held presumption of innocence;

-it is supported only by an act of pure faith contrary to logic and evidence and thus a violation of the First Amendment; and

-it is a form of sexual discrimination forbidden by both the Constitution and statute.

This ridiculous and impossible claim should be expelled from all aspects of the legal system, including the quasi-legal hearings conducted by schools and universities to “investigate” matters of alleged sexual impropriety.  Freedom cannot stand when the law declares one party to be innocent and the other guilty solely on the basis of gender.

If we do not eliminate the claim from our legal system, future Americans will look back at this period of judicial history as vicious and shameful for unlike the Salem witch trials when people truly believed in spectres and witches, no thinking person can possibly believe the claim.  Those who insist the claim is true do so entirely on the basis of politics and in direct defiance of logic, common sense, and scientific evidence.  The rules of evidence must be changed to eliminate this form of sexual discrimination.

Michael Conzachi

One of citizens’ most important due process right is the right to a fair and unbiased investigation. For a number of years, activists have promoted a concept they refer to as “Believe the Victim,” to be utilized by law enforcement personnel when they respond to charges of sexual assault or domestic violence.

Traditionally, crime investigators have been expected to take an unbiased and neutral approach to the investigation. This means allowing the facts and evidence to speak for themselves to determine what has occurred. In contrast, the “Believe the Victim” philosophy means that investigators focus their efforts on validating the accuser’s version of the events.

Based on training models with titles such as “Victim-Centered,” “Start by Believing,” and “Trauma-Informed,” these methods reinforce, in the consciousness of investigators, the notion that their job is to validate the information supplied to them by an alleged victim of sexual assault. This worrisome movement has reached the point that in many jurisdictions, “Believe the Victim” is now the standard.

These policies handcuff an impartial and unbiased investigative effort. They discourage law enforcement officers from looking for evidence of innocence. And if exculpatory evidence is found, they create a form of “tunnel vision” so detectives tend to gloss over such evidence, or even ignore it altogether.

Advocates of Start by Believing claim that law enforcement officers are generally incompetent, indifferent, and routinely dismiss sexual assault allegations as unfounded. They also maintain that law enforcement officers routinely treat alleged victims with disdain and disrespect.

The truth of the matter is very different. In my 30 years working on the front lines of law enforcement, I have found that criminal investigations typically are conducted by well-trained individuals. Their efforts to seek out the truth are thorough and professional, both initially and in the follow-up stages.

This is not to say that there haven’t been cases in the past where a victim was dismissed by an improperly trained or indifferent law enforcement officer. But those instances are much rarer than Believe the Victim proponents claim.

In the state where I have worked, the California Commission on Peace Officer Standards and Training (POST) mandates specific Learning Domains for crimes including sexual assault, domestic violence, and offenses involving children: https://www.post.ca.gov/regular-basic-course-training-specifications.aspx . The Commission also mandates investigator training for specific crimes, including sexual assault, domestic violence, and offenses involving children: https://www.post.ca.gov/specialized-investigators-basic-course-training-specifications.aspx . The underlying theme of the POST training programs is to always conduct investigations with impartiality, based on facts and evidence.

Believe the Victim advocates also accuse law enforcement officials of sex bias against women. In this day and age, the majority of investigators in domestic violence and sexual assault units are female, so the notion of anti-female bias would appear to be unlikely.

And there is no good data indicating a systematic bias against women. If there is any bias, it is against men. According to the CDC’s National Intimate Partner and Sexual Violence Survey, male victims of sexual assault, physical violence, or stalking by an intimate partner report police are less helpful, compared to female victims: https://www.cdc.gov/violenceprevention/pdf/cdc_nisvs_ipv_report_2013_v17_single_a.pdf (Table 7.2)

• Percentage of Male victims who report police were Very or Somewhat helpful: 38.8%
• Percentage of Female victims who report police were Very or Somewhat helpful: 58.7%

The Believe the Victim philosophy represents an evisceration of the presumption of innocence and a callous indifference to the truth. Conducting criminal investigations in which the investigator is instructed to specifically validate an accused’s version of events does not represent 21^st century policing in America.  Such approaches more resemble policing in repressive regimes such as North Korea and the former Soviet Union.

Law enforcement officers and investigators have taken an oath to protect and defend the Constitution and the constitutional rights of all, including those accused of serious crimes. Investigators must seek after the truth rather than compromise their honesty and integrity.