Plaintiffs claiming they were wrongly expelled for false allegations of sexual misconduct in colleges and universities have repeatedly challenged so-called “trauma informed” interview techniques. Their challenges most often fail: three times in the Federal District Court of Colorado and once each in the Southern District Court of Iowa, the Southern District of Ohio, and District of New Jersey.[1] Even where students achieve some measure of success, courts have warned, “To the extent that … bias against plaintiff stemmed from a purely ‘pro-victim’ orientation [in methods such as ‘trauma-informed’ techniques], that bias did not violate Title IX or the Equal Protection Clause.”[2]
Trauma Informed Methods and Evidence
“Trauma-informed” interview techniques, also sometimes called “cognitive interviewing techniques” or “forensic experiential trauma interview,” are extremely controversial. They were widely adopted by the early 2010s in the military, in law enforcement, and among college administrators.
The champions of these techniques claim that trauma alters human memory: If you’ve experienced “trauma,” you may not have coherent memories and should be treated differently as a witness. As a court summarized one social worker’s claims of expertise in this area:
Faced with trauma, victims go into survival mode and other parts of the brain shut down. Normal questioning is linear and works on the cognitive part of the brain and is based on cause and effect from the beginning of an event to the end. When somebody has been traumatized, … [u]nfortunately, when memory is stored in that way, it is being stored in a fragmented fashion. An initial statement can therefore be fragmented and a victim will fill in the blanks later.[3]
But how to tell “fragmented” memory from evasive, untruthful testimony? Or “filling in the blanks” from “making stuff up”?
Training slides from the University of Mississippi allegedly instructed Title IX officers: “when Complainants withhold exculpatory details or lie to an investigator or the hearing panel, the lies should be considered a side effect of an assault.”[4] This is a recipe for transforming evidence of innocence into its opposite. It is also outright suppressing evidence.
Major Reggie Yager, an Air Force Judge Advocate who took part in the creation of military Special Victim’s Counsel, argues that this also confuses treatment and justice. There is a difference when it comes to the task of caring for alleged victims and the task of justly condemning an accused.[5] Someone seeking help at a crisis center should undoubtedly be met with a presumption of belief. Every effort should be made to “err on the side of caution and be more inclusive.”[6] But tribunals of judgment cannot serve as adjuncts to victim support services and treatment. They must abide by “standards … for punishing people”—among others, the presumption of innocence.[7] Presuming accusations are true is the opposite. Excusing or excluding exculpatory evidence has no place.
Critics of trauma-informed approaches take a more straight forward approach. They simply condemn it as junk science.[8]
Putting Trauma-Informed Techniques to the Daubert Test
Courts have rarely tested “trauma-informed” techniques under the standards required for expert testimony, known as “Daubert” standards.[9] These standards are not very rigorous. Experts usually must be very, very bad for a court to throw them out.[10]
At least one court has expressed skepticism about broad claims made about “trauma” and the human brain. In a putative class action against a Los Angeles school district, the named plaintiffs had suffered undeniably heart-breaking, violent tragedies, and they alleged additional trauma from “extreme poverty, homelessness, and other socioeconomic hardship; and discrimination and racism” (among other sources). Trauma, they argued, caused underperformance in school, and they demanded a court order to force their school system to train all teachers and staff about how trauma affected their “ability to learn, think, read, concentrate, and communicate.”[11]
The court rejected their request. An expert in the neurological effects of trauma supported their demand, but the court remarked only that this was “somewhat novel” and doubted whether “trauma-informed” theories could support disability-rights claims.[12]
On the other hand, the California Court of Appeal affirmed a guilty verdict for crimes arising from spousal abuse and methamphetamine possession after an expert had testified about trauma-informed techniques. The defendant objected to the expert’s reliance on the “trauma-informed” method known as FETI (Forensic Experiential Trauma Interview).[13] The court brushed the objection aside but did not endorse FETI. The victim had “not substantially change[d] her account … did not recant her story, and … was largely corroborated by her eldest daughter.”[14] Whatever the expert’s commitment to trauma-informed method, the actual evidence did not support one of its basic premises—that trauma of the victim impairs the ability to tell a coherent truth. This witness did not need to “fill in the blanks.”
Dueling Experts on Trauma?
Throwing out an expert completely is very difficult. Usually, most parties therefore rebut dubious expert testimony with an expert of their own. This is sometimes called “dueling experts.” One problem, however, is that there is almost no way to challenge the purported expertise that a campus court might invoke.
At the University of Oregon, college administrators relied on expert reports in a case of escalating and changing allegations of misconduct against the accused. One expert supposedly explained how “trauma can affect victims’ memories in a way that could explain the inconsistencies.”[15] The campus judiciary did not allow the accused student to see the expert report, let alone refute it.
An example of dueling experts is a Pennsylvania case currently addressing “trauma-informed” theories of memory and historical sex abuse. Campers at a Cape Cod summer camp have sued as adults, alleging that the camp permitted them to be sexually abused by an older boy. The case will turn on the credibility of plaintiffs’ testimony about events from many years in the past.[16]
Both sides are calling experts. The plaintiffs called a Dr. Pittman, who is expected to testify that sexual trauma may cause Post Traumatic Stress Disorder (which few would find remarkable). But he is also expected to testify about some of the most controversial “trauma-informed” approaches to evidence, for example that the plaintiffs’ allegedly inconsistent account of events can be explained by their trauma.
The court refused to exclude Dr. Pittman, but it also strictly disallowed him from opining about the credibility of specific factual allegations.[17] In addition, the court emphasized that the summer camp could call its own rebuttal expert, who is expected to refute “the idea that traumatic memories may be subconsciously suppressed but accurately recovered many years later.”[18] The plaintiffs, for their part, moved to exclude him.
The court has set up what is called a “Daubert hearing” to decide the parameters of what these experts may testify to and what they may not in front of the jury. The court’s eventual decision may be the first to squarely addresses both the exclusion or admissibility of expertise on “trauma-informed” approaches to testimony and evidence.
Citations
[1] Rossley v. Drake Univ., 342 F. Supp. 3d 904 (S.D. Iowa 2018); Norris v. Univ. of Colo., 362 F. Supp. 3d 1001, 1013 (D. Colo. 2019); Doe v. Univ. of Denver, Civil Action No. 17-cv-01962-PAB-KMT, 2019 U.S. Dist. LEXIS 141523 (D. Colo. Aug. 20, 2019); Messeri v. Univ. of Colo., Civil Action No. 18-cv-2658-WJM-SKC, 2019 U.S. Dist. LEXIS 162010 (D. Colo. Sep. 23, 2019); Doe v. Univ. of Cincinnati, No. 1:16cv987, 2018 U.S. Dist. LEXIS 51833, at *8 (S.D. Ohio Mar. 28, 2018); Doe v. Rider Univ., Civil Action No. 3:16-cv-4882-BRM-DEA, 2018 U.S. Dist. LEXIS 7592, at *29 (D.N.J. Jan. 17, 2018). Doe v. Syracuse Univ., No. 5:18-CV-377, 2019 U.S. Dist. LEXIS 77580, at*20 (N.D.N.Y. May 8, 2019), Norris v. Univ. of Colo., 362 F. Supp. 3d 1001, 1012-13 (D. Colo. 2019), and Doe v. Univ. of Or., No. 6:17-cv-01103-AA, 2018 U.S. Dist. LEXIS 49431, at *47 (D. Or. Mar. 26, 2018). In two of those cases, the court clearly warned that showing bias in favor of alleged victims is not the same as gender bias are exceptions (indicating weakness in the plaintiff’s case for any eventual summary judgment). In Doe v. Syracuse Univ., No. 5:18-CV-377, the Plaintiff on a motion to dismiss had put in his complaint OCR training materials from 2014 promoting trauma-informed techniques to ensure ” to ensure “the protection of girls and women”—i.e., not only to protect alleged victims in gender neutral terms.
[2] Doe v. Univ. of Or., No. 6:17-cv-01103-AA, 2018 U.S. Dist. LEXIS 49431, at *47 (D. Or. Mar. 26, 2018).
[3] People v. Gonzalez, 2018 Cal. App. Unpub. LEXIS 2756, at *9 (Cal. App. 5th Dist. April 24, 2018)
[4] John Doe v. University of Miss., No. 3:18-cv-00063 at *19 (S.D.Miss. Jul. 24, 2018)
[5] Reggie Yager, What’s Missing from Sexual Assault Prevention and Response, 68, avail. at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2697788.
[6] Id.
[7] Id.
[8] Emily Yoffe, The Bad Science behind Campus Response to Sexual Assault, The Atlantic, September 8, 2017, available at https://www.theatlantic.com/education/archive/2017/09/the-bad-science-behind-campus-response-to-sexual-assault/539211/; Sujeet Bhatt and Susan Brandon, A Review of ‘Understanding the Neurobiology of Trauma and Implications for Interviewing Victims:’ Are We Trading One Prejudice for Another? http://www.prosecutorintegrity.org/wp-content/uploads/2019/09/Review-of-Neurobiology-of-Trauma-9.1.2019.docx.
[9] Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993)
[10] The Supreme Court has said that where “experts testimony lies within the range where experts might reasonably differ … the jury must decide among the conflicting views of different experts.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153, 119 S. Ct. 1167, 1177 (1999)
[11] P.P. v. Compton Unified Sch. Dist., 135 F. Supp. 3d 1126, 1130-1133 (C.D. Cal. 2015).
[12] Id. at 1142-1148.
[13] People v. Gonzalez, No. F073128, 2018 Cal. App. Unpub. LEXIS 2756 (Apr. 24, 2018).
[14] Id. at *13, *15.
[15] Doe v. Univ. of Or., 2018 U.S. Dist. LEXIS 49431 *, 2018 WL 1474531 (D. Or. March 26, 2018)
[16] R.D. v. Shohola, Inc., 2019 U.S. Dist. LEXIS 136556 (M.D. Pa. August 13, 2019).
[17] Id. at *19.
[18] Id. at *24.