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Military Trauma Informed

Ignoring Due Process, DOD Climbs on to the Trauma-Informed Bandwagon

By Colleen Reed & Margaret Valois, Esq. September 17, 2019 The Department of Defense (DoD) is collaborating with colleges and universities to promote an ideology that threatens citizens’ fundamental constitutional rights to the presumption of innocence and due process. Trauma-informed or “start by believing” practices infer credibility on complainants while compromising the rights of the

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The Department of Defense (DoD) is collaborating with colleges and universities to promote an ideology that threatens citizens’ fundamental constitutional rights to the presumption of innocence and due process. Trauma-informed or “start by believing” practices infer credibility on complainants while compromising the rights of the accused. Over the past decade, this prioritization of belief over truth has resulted in investigators being increasingly encouraged to “reassure the victim that he or she will not be judged and that the complaint will be taken seriously” so they will not “suffer additional trauma” or be discouraged from reporting. Trauma-informed procedures represent an attempt to recast the neutral role of the investigator into that of an advocate and thereby systematically bias the criminal justice system.

Ethical codes, at the core of assuring our due process rights, mandate diligence, integrity, and impartiality in the conduct of criminal investigations. “This system of truth seeking and the imposition of appropriate sanctions rest on the discovery and production of evidence that is accurate, relevant, adequate and unbiased.”i Former Secretary of Defense Mattis declared that “the DoD must be the epitome of American values and ethics” and “doing what is right at all times.” Current Secretary of Defense Martin Esper recently renewed this commitment, requesting all military personnel and DoD employees to take “a solemn oath to support and defend the Constitution.”

Contrary to these pledges, the DoD is coordinating with colleges and universities to promote the use of a ‘Start By Believing’ or trauma-informed approach to sexual assault/sexual harassment as “best practice” in military criminal investigations and on college campuses.

On September 5, the Department of the Navy, in conjunction with the State University of New York (SUNY), hosted a regional discussion entitled “Sexual Assault and Sexual Harassment.” The conference is a continued discussion from the National Discussion on Sexual Assault and Sexual Harassment at America’s Colleges, Universities, and Service Academies held at the United States Naval Academy in April 2019.

Speakers included Secretary of the Navy, Richard V. Spencer and Ms. Melissa Cohen, Director, Department of Navy, Sexual Assault Prevention and Response Office (SAPRO), among others.ii

Cohen explained, “By holding these regional discussions, we can learn from each other and work together to eliminate these criminal and destructive behaviors from the military and in society.” For many years, the DoD has used trauma-informed, victim-centered approach in criminal investigations, similar to those utilized in college Title IX investigations. However, the DoD appears to be even more aggressive in their attempt to eradicate sexual assault and sexual harassment so they can “rid our institutions of these crimes.”

Earlier this year, the military assembled a joint task force to study sexual assault accountability and investigation. In April, the task force issued a report, stating, “The military justice system is… quite unique in that it treats behaviors counter to good order and discipline as crimes, while providing comprehensive support to victims throughout the process.” This report’s highest priority recommendation is “establishing a specific criminal offense for sexual harassment as a stand alone crime. The over-broad definition of sexual harassment as “conduct that-involves unwelcome, unwanted or uninvited advances” means even a first time request for something could be considered unwelcome.

The task force concluded that making sexual harassment a crime would “more firmly reinforce the Department’s view that such conduct is immoral and unacceptable” and that “adding a specific criminal offense of sexual harassment” will “make a strong military-wide statement about the seriousness of these behaviors and the military’s zero tolerance for them.” The task force recommendation? Sexual harassment” is an offense subject to court-martial!

The DoD has also worked hard to push the concepts of ‘believe the victim’ and trauma-informed training in the military. There are many strong arguments as to why our military should not be teaming up with our colleges and universities to push the agenda of these guilt presuming, trauma informed approach’s to sexual assault and sexual harassment.

  • Serious questions and problems that have been identified with a “Start By Believing approach. “Assertions about how trauma physiologically impedes the ability to resist or coherently remember assault have greatly undermined defense against assault allegations. Science offers little support for a ‘Start By Believing’ approach.The US Air Force (USAF) rejected the use of Forensic Experiential Trauma Interview, (FETI) techniques, stating “Given the lack of empirical evidence on FETI’s effectiveness, and the large number of investigative, professional and scientific concerns regarding FETI and FETI training, the Air Force does not consider FETI as a viable option for investigative interviewing. We believe it would be inappropriate and irresponsible to discontinue the use of a robust, well-studied, effective, and empirically-validated interviewing method that is supported by the latest scientific research (the Cognitive Interview), in favor of an interviewing method that is loosely constricted, is based on flawed science, makes unfounded claims about its effectiveness, and has never once been tested, studied, researched or validated.” Military officers are being trained by the National Organization for Victim Assistance (NOVA). NOVA serves as a national forum for victim advocacy in support of victim oriented legislation and public policy.In the USAF rejection of FETI techniques, Officers of Special Investigations, Linda S. Estes and Jeane M. Lambrecht report that trauma-informed “reasoning became endemic in the therapeutic community decades ago as part of the “recovered memory” movement, which led to many false accusations of abuse.” Estes and Lambrecht question whether it is “prudent to present sensory details and emotion as “evidence” of an allegation” and shared concern “that using this terminology could lead our investigators to be discredited in court.”

Two independent reports issued in the past month refute Trauma-Informed theories as scientifically flawed and incompatible with constitutionally rooted notions of due process and fundamental fairness.

  • In early September the Center for Prosecutor Integrity issued a Special Report that analyzes and refutes many claims of Trauma-Informed proponents. Written by behavioral neuroscientists Sujeeta Bhatt, PhD and Susan Brandon, PhD, the report concludes:
    “Examination of studies across these domains did not reveal any evidence to support the notion that victims of potentially traumatic events require interview methods that are different from those that have been shown to be most effective for accounts of events that are presumably not traumatic.”

    In August the Association of Title IX Administrators – ATIXA – issued a Position Statement on “Trauma-Informed Training and the Neurobiology of Trauma.” The strongly worded report concludes,

    “we need to resist biased and biasing trainings and the temptation to allow evidence to be influenced by conclusions about the neurobiology of trauma that are not empirically supported.”

Trauma-informed approaches do not allow for the presumption of innocence, a neutral civil liberty, and our constitutional right. The concern to provide justice for “victims” seems to have trumped concern for avoiding wrongful convictions and the seeking of truth and facts! Our young men in the military deserve a fair process that honors our constitution and the military’s ethical codes. The DoD should not be waging war against its members who are fighting for our freedoms, but against unsound policies that seek to destroy what America is about.