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Categories
Title IX

Trauma-Informed Dispute

Investigators of campus sexual assaults usually avoid bluntly asking victims to recall their attacks in vivid detail. This “trauma-informed” approach is used widely in investigations and is based on the belief that officials should not subject rape survivors to reliving such disturbing experiences without an empathetic ear.

The theory of trauma-informed care also offers an explanation as to why survivors might behave oddly in an interview, such as remembering only vivid details or describing them out of order when discussing their assault. Campus administrators say using this investigative practice is the best way to gather information and figure out the timeline of an incident without greatly upsetting a victim.

The association representing college administrators who investigate and adjudicate sexual violence cases on campuses has suggested some officials have taken this approach too far.

The Association of Title IX Administrators — named for the federal law banning sex discrimination on campus — published a statement last month contending that officials have sometimes not conducted thorough investigations into sexual assault claims. ATIXA says there have been cases when officials overlooked a lack of evidence in a sexual assault case because they believe trauma-related symptoms exhibited by a sexual assault victim likely prove the incident occurred.

The association asserts there is insufficient research to definitively prove that memory is affected by a sexual assault and how survivors respond to trauma long-term. ATIXA says administrators have “extrapolated” from existing studies far too much.

ATIXA’s claims have enraged some campus-based officials who specialize in the sex-discrimination law and investigate cases, as well as sexual assault survivor advocates. Those critics say ATIXA’s statement is a publicity grab.

“This represents a fundamental misunderstanding of what trauma-informed practices actually mean,” said Taylor Parker, a consultant with Safety Advisors for Educational Campuses LLC and the compliance coordinator and deputy Title IX coordinator at the Ringling College of Art and Design in Florida.

ATIXA released its seven-page position statement last month after association representatives noticed an “unhealthy direction in the field,” according to the statement. The association publishes these statements infrequently — only as a “nuclear option,” when it wants to send a strong message to the entire field, said Brett Sokolow​, the association’s president.

The statement notes that the trauma response to a sexual assault is a particularly controversial subject and cites a highly contentious 2017 article in The Atlantic blasting the work of experts who have studied the neurobiology of trauma and calling it “junk science.”

ATIXA’s statement said studies of the trauma-informed approach are incomplete.

“They are interesting to hear and definitely worth our time and thought, but they are perhaps like Copernicus, who asserted the Earth revolved around the sun long before there was any proof that it actually did,” the statement says of researchers focused on neurobiology and trauma. “If you listened to Copernicus in 1514 and decided as a result that heliocentrism was true, you were working off of theory at the time, not empirical science. It would be another 50 years before Kepler and Galileo elevated that theory to an observable working hypothesis. With our current level of neuroscientific understandings of trauma, we essentially are in 1514, and we have a lot of brilliant Copernicans around, but it will be another 50 years until we get to Galileo.”

Activists who defend the rights of those unfairly accused of sexual violence have seized on the Atlantic article and now the ATIXA statement to bolster arguments that the campus processes for adjudicating these cases are biased against the accused and lack due process.

These activists routinely disparage the Obama administration’s 2011 guidance for how colleges should adjudicate sex assault cases. Education Secretary Betsy DeVos rescinded those rules two years ago.

Sokolow said he hasn’t paid attention to responses from these groups, which include Stop Abusive and Violent Environments, or SAVE, and Families Advocating For Campus Equality (FACE).

ATIXA isn’t completely opposed to trauma-informed approaches, Sokolow said, But he’s concerned that it is routinely being used to supersede the investigative process.

At one university that Sokolow declined to name, a panel charged with making a decision on a sex assault case did not ask any questions of a survivor because the group had been advised that doing so would “re-traumatize” her. The accused student was found responsible for the assault but was not punished because he appealed, Sokolow said.

“We don’t want a trauma-informed approach to get in the way of learning evidence,” he said.

Sokolow said association members largely agree with the statement, which was vetted and voted on by ATIXA’s 20-member advisory board before being made public. But Title IX coordinators also believe the statement is “piling on,” Sokolow said.

These coordinators are frequently accused by survivor advocates and due process organizations of botching sexual assault investigations. They’ve also been involved in more court battles as Title IX-related lawsuits have skyrocketed, Sokolow said. This difficult work environment has resulted in high turnover in the profession. About two-thirds of Title IX coordinators have been in their positions for less than three years, according to a 2018 ATIXA survey.

Parker, the Title IX coordinator from Ringling College, didn’t think the statement was a matter of “right message, wrong time,” as Sokolow described it. She said she was angry.

“This is a publicity stunt,” she said, adding that she was not speaking on behalf of the college. “They want to find the next controversial statement and chisel out an area in the market. I think they are creating a problem that doesn’t exist so they can fix it.”

ATIXA’s statement includes a footnote saying that an association kit containing “best practices” for trauma-informed interviews can be purchased by members for free or at a discount. It can be purchased online by nonmembers for $499.

Laura Dunn, founder L. L. Dunn Law Firm PLLC and the survivor advocacy group SurvJustice, also dismissed the report as a publicity stunt.

Dunn said trauma-informed practices can counteract the often discriminatory tactics law enforcement uses to unearth details about sex assaults. The Justice Department outlined bias in the questioning of sexual assault and domestic violence victims during police investigations in a 2015 report.

Dunn said she did not agree with relying solely on victims’ behavior as a way to corroborate that a sexual assault occurred, but that behavior should be noted in an investigation.

“Perhaps ATIXA wants to seem reasonable and middle-of-the-road in issuing this statement, but its drafting and tone are unprofessional and at times pretentious,” she said.

Categories
Trauma Informed

Trauma and the Daubert Standard

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.

Categories
Violence Against Women Act

Clery Act Prohibits Unilateral Changes To Sexual Violence Disciplinary Results

One of the fundamental tenets of the 2013 Violence Against Women Act (VAWA) amendments to the Jeanne Clery Act is that participants in “dating violence, domestic violence, sexual assault, or stalking” disciplinary proceedings should never be surprised that an action is being taken by an institution of higher education. Just like a respondent should never be in the dark about when or if their appeal will be heard, for example, no complainant should receive notice of a change in the outcome of their case they had no idea was coming as a result of extraordinary action being taken.

While the changing of results in response to legal challenges or new evidence isn’t new, with the hundreds of cases brought by respondents in recent years it is becoming more common. In addition to being an important reminder why it is critically important to get these cases right in the first place, it also puts the focus on one of the less well understood VAWA requirements that effectively precludes leaving the complainant out of the loop in these cases.

Under Clery regulations which took effect in 2015, at 34 CFR §668.46(k), institutions are afforded very wide latitude in how they resolve sexual violence allegations, and as a result the definition of “Proceeding” is very inclusive. It “means all activities related to a non-criminal resolution of an institutional disciplinary complaint, including, but not limited to, factfinding investigations, formal or informal meetings, and hearings.” An administrative action, including those that are extraordinary, to change the resolution of a disciplinary complaint readily meets this definition.

Clery regulations apply to the entire process, providing specifically that “a prompt, fair, and impartial process from the initial investigation to the final result” is required. “Result”, as a pertinent example, is a fluid term that covers “any initial, interim, and final decision by any official or entity authorized to resolve disciplinary matters within the institution.” If a proceeding is reopened for any reason the Clery regulations continue to apply if there is the potential for a new “final result”.

The principal requirement at issue then is that in order to be “fair” proceedings must be “transparent to the accuser and accused” (the Clery statute uses these terms which are generally understood to be equivalent to complainant and respondent respectively). As part of this both parties and any decision maker must be provided with “timely and equal access…to any information that will be used during informal and formal disciplinary” proceedings. Additionally, institutions must provide “timely notice of meetings at which the accuser or accused, or both, may be present” if any.

While this does not preclude an institution from taking steps to remedy potential procedural or factual deficiencies that may be identified through a legal action or other means it does mean that such action may not be taken unilaterally without notice to both complainant and respondent that includes access to “any information” to be used. While, consistent with the broad latitude under Clery, there is no set framework for what this must look like it should be “consistent with the institution’s policies”.

If proceedings are reopened then both the complainant and respondent should be afforded an opportunity to examine the information to be used and a meaningful opportunity to be heard in a manner consistent with the institution’s policies. While following Clery guidelines in the first place should generally limit this type of occurrence from ever happening, any exceptional means used to deal with them should be written into policy and disclosed as part of the Clery Annual Security Report policy statements to ensure that institutions have the authority to meet these Clery obligations.

This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.

https://safecampuses.biz/clery-act-prohibits-unilateral-changes-to-sexual-violence-disciplinary-results/

 

This is the Clery Handbook Alison referred to.

Chapter 8 in the Clery Handbook:

https://www2.ed.gov/admins/lead/safety/handbook.pdf

Categories
Title IX

School rewrites apparent female-only scholarship advertisement after College Fix inquiry

It was purportedly an ‘editorial error’
A majority-women private college recently advertised a new scholarship as being only available to females before claiming that the single-sex designation was a mistake. When pressed, the school would not explain how the mistake was made and whether or not it was wrongly advertised elsewhere.
Ursuline College, a Roman Catholic school located in Ohio, boasts that more than 90 percent of its undergraduate students are female. It offers a variety of scholarships to undergraduate students. The school advertised what appears to be its newest scholarship, Say Amen to College, on Sept. 19 on its website.
The original press release, a screenshot of which The College Fix archived, stipulated that it would be awarded to “female graduates of five Greater Cleveland Catholic high schools.” Recipients receive full tuition for the college’s 2020-2021 school year. The scholarship is renewable for up to three years.
The College Fix reached out to the college to inquire about the legality of the scholarship, asking if the school had any concerns that it violated federal Title IX regulations, which prohibit sex discrimination. A recent study found that a majority of American colleges and universities “facially violate” federal law by offering female-only aid.
Campus spokeswoman Ann McGuire responded by stating that The College Fix had “uncovered an editorial error on my part.”
“Ursuline College’s Say Amen scholarships are indeed available to students from the five high schools listed, who meet the requirements, regardless of gender,” she said. McGuire told The Fix that she had edited the press release to reflect this.
“Ursuline prohibits harassment and discrimination on the basis of certain characteristics, including sex, gender identity or expression, sexual orientation, or any other basis prohibited by federal, state, or local laws,” McGuire continued, adding: “Ursuline is a women focused college, meaning we accept men but, for our undergraduate program, we direct our marketing efforts at women. We do not have special outreach programs for male students but we do market our graduate programs to both women and men.”
Pressed further on why she had initially believed “Say Amen to College” was a female-only scholarship, as well as whether or not the scholarship was advertised as female-only anywhere else, McGuire replied: “Alas, it was my mistake in the news release. All corrected now.”
McGuire did not respond to multiple follow-up emails concerning the scholarship. Deborah Kamat, the school’s Title IX coordinator, eventually responded via email: “As noted, your question has been asked and answered. The College has no further response to provide to you at this time.”
McGuire had also dodged Fix inquiries regarding another Ursuline scholarship that looks to be reserved for females, the “Alumnae Scholarship.” The grant, providing up to $1000 in financial aid, stipulates in its description that the recipient “must be the child or niece of an Ursuline College or St. Johns College alumnae.” The word “alumnae” is the plural of “alumna,” meaning a female graduate.
The Fix‘s report on the recent study of purported Title IX violations involving female-only scholarships found far more gender-specific scholarships are reserved for women than men. For instance, of the 36 states reviewed in that report, Arizona had 161 female-only scholarships, while only three were reserved for men; California had 117 women-only grants, and four for men; and Florida had 112 female-only scholarships and seven male-only ones.
In total, only 16 percent of the schools studied were considered “non-discriminatory.”
Categories
Title IX

More Title IX Lawsuits by Accusers and Accused

Istockphoto.com/LIgorko

Universities and colleges are increasingly experiencing legal challenges to their institutions’ Title IX enforcement processes, a trend that higher education law experts say is a natural reaction to proceedings that declare “winners” and “losers.”

The societal pressures from the Me Too movement and repercussions from the Obama administration’s 2011 guidance for how colleges should adjudicate sex assault cases have led to more civil complaints from both alleged victims and accused perpetrators of sexual misconduct who feel they were treated unfairly during Title IX hearing processes. Legal challenges in federal courts exploded following the guidance, which called on universities and colleges to vigorously root out campus sexual assault and harassment with a preponderance of evidence standard, leaving officials to determine if “it is more likely than not that sexual harassment or violence occurred.”

More than one-fourth of 305 Title IX claims analyzed in a 2015 study by United Educators (UE) were challenged by students who either filed lawsuits in the federal courts or lodged complaints through the Department of Education’s Office for Civil Rights (OCR). There’s a consensus among higher education and legal experts that students are increasingly claiming flawed hearings or unfair disciplinary sanctions as a result of procedural failings at their universities, said Jake Sapp, Title IX coordinator and institutional compliance officer at Austin College in Sherman, Tex.

UE, one of the largest insurance providers for postsecondary institutions, also reported that sexual assault was the top liability for colleges and universities in 2018. Payouts resulting from Title IX procedural challenges, which went primarily to victims of sexual assault, surpassed the legal costs of large risks such as wrongful death or negligence and wrongful termination, according to the report.

“Across the board, you have to think that it’s in the back of every administrator’s mind,” Sapp said. “It would be negligent to not be thinking, ‘Am I following the law?’ Especially in such a gray area … If they’re not thinking about lawsuits, they ought to be.”

Civil Claims

Accused students in particular are more frequently turning to federal courts to claim due process violations during Title IX proceedings at public institutions, Sapp said. He noted that while students at publicly funded universities have due process rights in Title IX proceedings and can sue the institutions for violations, students at private institutions don’t have much chance of success at making such claims.

Other accused students have filed suit because of an “erroneous outcome” in their hearing because a disciplinary panel was allegedly biased against them. The students sometimes cite the Obama-era guidance itself, or societal pressures from the Me Too movement as the bases of the bias. Some students file what Laura Dunn, a renowned attorney for campus sexual assault survivors, called a “reverse Title IX” gender-discrimination claim, where male students will argue their university’s process is biased against men. Nearly all accused students in the 2015 UE report were male.

Language in Education Secretary Betsy DeVos’s proposed Title IX rule changes, which were published in November 2018 and are awaiting release, would allow for more of these types of civil lawsuits brought by accused students, said B. Ever Hanna, policy director for End Rape on Campus, an advocacy organization for survivors of sexual violence.

The proposed regulations say that Title IX administrators’ “treatment of both complainant and respondent could constitute discrimination on the basis of sex” and “a respondent can be unjustifiably separated from his or her education on the basis of sex, in violation of Title IX, if the recipient does not investigate and adjudicate using fair procedures before imposing discipline.”

Josh Richards, an attorney who represents colleges and universities in Title IX matters, said legal challenges are inevitable in such emotionally fraught proceedings.

“When you make a campus responsible for adjudicating a dispute between two students, you set up a system where there’s a winner and loser … the loser seeks to vindicate the rights that they feel the school did not vindicate in court,” he said.

In the wake of the shifting Title IX rhetoric of the Trump administration, which rescinded the Obama-era guidance in 2017, more students are aware of Title IX and the ways it can be enforced, said Michael Dolce, a Florida-based attorney who represents victims of sex crimes. With more accused students looking to turn to the courts, there’s also been increased demand for attorneys to defend them, Dolce said.

“A lot of criminal defense lawyers are specifically advertising that they represent the accused in Title IX cases,” he said. “Pick any university in the country and go five miles from there, and you will find lawyers who advertise defending the accused. That wasn’t the case 10 years ago.”

Settling complaints from alleged victims in court cost colleges and universities an average of $350,000 in the years following the Obama guidance, and some settlements reached $1 million, UE reported in an analysis of Title IX claims from 2011 to 2015 at 1,600 institutions. This does not include legal defense expenses, which can cost colleges and universities millions before settlements are even reached, according to UE’s 2015 report.

Claims settled with a student accused of sexual misconduct cost universities less in damages on average — around $20,000 to $30,000, Dunn said. These settlements typically cover the accused student’s losses in tuition and housing from periods when they were suspended or expelled from the institution, whereas a sexual assault victim could claim more monetary relief for the loss of educational access and post-traumatic stress, she said.

The high cost of addressing sexual misconduct on campus has become a lose-lose situation for universities and can even possibly put some institutions out of business, said Peter Lake, director of Stetson University’s Center for Excellence in Higher Education Law and Policy.

“If you don’t deal with sexual violence, you’re going to get sued. If you deal with sexual violence, you’re going to be sued,” Lake said.

Richards said most of these lawsuits are dismissed by federal judges early on in the process if a judge concludes that the university did follow Title IX procedures under its own written rules and Department of Education regulations, and they very rarely proceed to trial.

Some lawsuits challenging Title IX procedure result in a “redo” of the hearing process led by the university if a judge finds that there was gender discrimination against either student, Dunn said.

But fewer cases brought by the accused are being dismissed due to the “judicial activism” of some judges, Lake said.

“Federal courts are being very activist now in asserting themselves as the courts of appeal over the college court — whether they want to admit it or not,” he said.

Undisclosed Settlements

A consequence of this new legal landscape is that universities are settling civil lawsuits filed by students accused of sexual harassment. The settlements are not typically publicized. The identities of students involved in Title IX proceedings are protected by the Family Educational Rights and Privacy Act. The federal law, commonly known as FERPA, also prevents students’ disciplinary records from being shared without their consent, but Title IX requires that the victims of sexual violence and harassment are made aware of sanctions against the perpetrators.

One lawsuit filed against Yale University by a student accused of sexual misconduct was dismissed by a judge in the U.S. District Court of Connecticut on April 25, 2018, after the two sides reached an undisclosed agreement. The student, who was identified in news reports as Daniel Tenreiro-Braschi, was suspended for two semesters after being accused of sexual assault. Yale’s University-Wide Committee on Sexual Misconduct determined he groped two female students in 2016 and was “creating a hostile academic environment,” according to the 53-page complaint.

Tenreiro-Braschi claimed an unfair hearing and bias on the part of the committee. He maintained that members of the committee had professional connections to the accusers’ parents, who were Yale faculty and notable alumni. His suit also claimed the independent fact finder assigned to his case included “unrelated hearsay and derogatory character statements” in her investigation and that the two accusers had listened to each other’s testimony and coordinated responses to the committees’ questions.

Tenreiro-Braschi, a junior at the time, demanded to be “reinstated as a student in good standing and permitted to begin classes during the spring 2018 semester … [and his] disciplinary record be expunged; the record of expulsion be removed from his education file; and any record of the complaint be permanently destroyed,” the complaint states.

Tenreiro-Braschi was listed in the Yale College 2019 graduation ceremony program, the New Haven Register reported.

“Yale doesn’t comment on or acknowledge the existence of sexual misconduct cases,” wrote Yale director of media relations Karen Peart in an email. “All decisions regarding discipline are based on the facts known at the time.”

While the terms of any settlement Tenreiro-Braschi may have reached with Yale are unknown, lawsuits that end in private settlements do occur, Hanna said. And despite guilt or innocence, an accused student could be reinstated at the university without the knowledge of their accuser, Hanna said.

“When there are settlements, the hoarding and sealing of that information makes it hard for victims,” Hanna said. “The community can’t be informed about what happened. Anecdotally, we’ve heard from people who are survivors [that] the person who harmed them does go through this process and is permitted to come back on campus and permitted to graduate, and the survivor doesn’t even know about it.”

The Title IX procedures in place on campuses that attempt to provide victims an alternative to the often slow-moving and strenuous criminal justice system are leading to an even more strenuous process for all parties involved in the federal courts, Lake said.

“The pressure now is to avoid getting in situations where [institutions] go before the court,” Lake said. “If colleges get into too many situations where they have to litigate, they’ll go out of business.”

Some institutions offer “alternative” or “early” resolution models for victims of harassment, which could entail the accused student and accuser mediating the issues or incident that caused the Title IX complaint, Sapp said. These are informal procedures for violations that fall short of sexual violence and could provide a “learning experience” rather than sanctions for the accused, he said. There is a consensus that resolution models should not be used in cases of sexual assault, Hanna said.

In some cases, restorative justice works with certain students, Dolce said.

“It could be immaturity or bad cultural upbringing that leads to harassment,” he said. “There’s a world of difference between that and the ability to lay hands on somebody.”

RAINN’s position is that “restorative justice” options are an easy out for universities and allow perpetrators to avoid actual consequences for their actions, said Camille Cooper, vice president of public policy for RAINN, the Rape, Abuse and Incest National Network and sexual assault hotline. End Rape on Campus argues that the process can work for students who were harassed but not assaulted, Hanna said. Both organizations agree that universities should tread carefully when offering alternative resolution methods so as not to coerce victims to accept a process they are not comfortable with, or that could retraumatize them.

“Resolutions are one thing that can work,” Hanna said. “They don’t always, and we have seen and heard many times about survivors feeling pushed into mediation or resolution. We’ve heard stories of Title IX coordinators or advocates saying, ‘This is going to be the only way to get what you want.’”

These methods provide a way for colleges and universities to avoid civil litigation challenging Title IX proceedings and could end up being positive for all parties, Richards said.

“Many schools are setting up these models … because they’ve had the time to see how these adversarial models play out,” he said. “They’re agreed upon by the parties and don’t result in these sorts of winners and losers scenarios.”

Categories
Wrongful Convictions

On Wrongful Conviction Day, CPI Calls on Lawmakers to Address the Root Causes of a Travesty of Justice

Contact: Rebecca Stewart

Telephone: 513-479-333

Email: info@prosecutorintegrity.org

On Wrongful Conviction Day, CPI Calls on Lawmakers to Address the Root Causes of a Travesty of Justice

WASHINGTON / October 2, 2019 – Today is Wrongful Conviction Day, and over 30 events are being held around the country to highlight the plight of persons who have been convicted of a crime they did not commit (1).  To date, 2,499 persons have been exonerated in the United States. The most recent exoneree is Larry Roberts, convicted in 2007 for murder and sentenced to life without parole. Two weeks ago, Roberts was acquitted by a jury, based on evidence of witness misidentification, and immediately released from confinement (2).

Last December, Congress enacted the First Step Act, breakthrough legislation that was designed to reduce lengthy sentences for persons who had committed a non-violent crime. But far less attention has been paid to addressing the root causes of wrongful convictions in order to prevent such problems.

The National Registry of Exonerations has identified five factors that are known to contribute to wrongful convictions (3):

  1. Perjury or False Accusation – Present in 58% of wrongful conviction cases
  2. Official Misconduct by prosecutors and law enforcement – 54% of cases
  3. Mistaken Witness Identification – 28% of cases
  4. False or Misleading Forensic Evidence – 23% of cases
  5. False confession – 12% of cases

Underlying these factors is a problem known as “confirmation bias,” in which investigators, prosecutors, and jury members reach a premature and faulty determination of guilt (4).

Confirmation bias is worsened by new investigative approaches that are known as “Start By Believing” and “trauma-informed.” Start By Believing instructs detectives to begin with a presumption of guilt; and trauma-informed posits that a complainant’s testimony is presumptively truthful, even when it defies plausibility or contradicts other persons’ testimony (5).

The Center for Prosecutor Integrity (CPI) urges lawmakers to enact legislation to restore fairness, due process, and the presumption of innocence to our criminal justice system.

Citations:

  1. http://www.intlwrongfulconvictionday.org/?fbclid=IwAR1Qo918dGcELQTfJ8FEmZV9K1xAIIY7AJBrT4mBX-HoH1vXWQCXyHSopJc
  2. http://www.law.umich.edu/special/exoneration/pages/casedetail.aspx?caseid=5614
  3. http://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx
  4. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3413922
  5. http://www.prosecutorintegrity.org/sa/victim-centered-investigations/


Release posted here: http://www.prosecutorintegrity.org/pr/on-wrongful-conviction-day-cpi-calls-on-lawmakers-to-address-the-root-causes-of-a-travesty-of-justice/

Categories
Uncategorized

NBC Smears AG Barr, Book About Campus Sexual Assault

In an attempt to smear Attorney General William Barr, NBC News framed a story about Barr’s support for due process (which shouldn’t be controversial) as him supporting rapists.

It’s a typical tactic by the media these days. Ever since the Obama administration issued guidelines in 2011 warning schools that they needed to find more male students responsible for sexual assault, due process has gone out the window. In 2017, professor K.C. Johnson and scholar Stuart Taylor wrote a book about the issue. At the time, I wrote a review for RealClear Books — and my previous work on the subject was also referenced multiple times in the book.

The book details how colleges and universities ignore exculpatory evidence and hinder students’ due process rights in order to obtain findings of responsibility to avoid federal investigations that threaten the schools’ federal funding. Johnson and Taylor, using court documents, describe multiple instances where male students have been found responsible even though the evidence suggested they were innocent.

NBC reported that Barr “strongly endorsed a 2017 book accusing colleges and universities of unfairly punishing male students accused of rape.” That is not accurate, as the book accuses schools of unfairly punishing male students dubiously accused of rape. The book does not decry students who are likely guilty receiving too harsh a punishment, as NBC claimed.

“President Obama’s Education Department — promulgating regulations beyond its statutory authority, invoking erroneous data, and fanning the false narrative of a ‘rape culture’ on college campuses — has created a regime of kangaroo justice,” Barr wrote in the blurb.

This is an accurate statement. The Obama administration used false data purporting to show that 20% of women are sexually assaulted in college (surveys that use an overly broad definition of sexual assault in order to get such a high number) to justify eviscerating due process rights in campus tribunals. This same statistic has been used to claim there is a “rape culture” on college campuses, with activists and politicians insisting that drunken hookups are now sexual assault. Further, as I previously stated, the lack of due process and the ignoring of exculpatory evidence create a kangaroo court. Franz Kafka would be appalled.

 

NBC also distorted a recent story about Supreme Court Brett Kavanaugh. NBC wrote: “The New York Times published an excerpt of a new book detailing asexual assault allegation against Kavanaugh while a student at Yale that he had previously denied. The book also includes information about a new allegation.”

This leaves out important details — like how the book does not contain corroborating evidence for the previous claim and the new allegation was denied by the alleged victim.

The most egregious case in the book from Johnson and Stuart involves a male Amherst College student who blacked out, received oral sex from his girlfriend’s roommate, and was accused of sexual assault nearly two years later. In the time between the act and the accusation, the female accuser lost her friendship with the man’s girlfriend and became friends with feminist campus activists. Even though Amherst has a policy explaining that a person could be in a black-out state without appearing to be inebriated and determined the male student was likely blacked out, it still found him responsible and expelled him. After the student hired an attorney, he learned that the woman had lied about what happened after the alleged encounter. She claimed she was distraught and called a friend over. That “friend” was actually another male student with whom she had been flirting previously in the night. She sent text messages to her friend explaining that she had done something “so fu**ig [sic] stupid” with her roommate’s boyfriend and that “it’s pretty [obvious] I wasn’t an innocent bystander.”

She proceeded to text this friend about the man she invited over after the encounter — about how he wasn’t making a move on her. This male student signed an affidavit saying she was not at all distraught that night.

When the male student brought these messages to Amherst, school administrators refused to allow him back in, claiming the process worked. The school eventually settled with the student.

Naturally, NBC didn’t include anything from the actual book in its report.

Categories
Uncategorized

Mediation is Making an Impact on College Campuses

Mediation is playing an increasingly larger role in helping colleges manage serious campus disputes—particularly in Title IX–related matters. Using “neutrals”—parlance in the legal field for mediators—more often is being propelled by industry choice, not legal mandate.

 

Higher education finds itself today in a highly regulated and litigious culture—where debate abounds regarding dispute resolution processes for colleges. The culture wars over dispute resolution models in higher education threaten to undermine the autonomy of the field. This situation is also highly dynamic; it is almost impossible to predict what might happen in Title IX regulation. Many institutions are confused about which models of dispute resolution are, and will remain, legally compliant. The U.S. Department of Education has changed course several times on preferred dispute resolution models—and may very well do so again. Several courts around the country have ruled on college discipline systems—with various, and at times inconsistent, decrees on fundamental fairness and due process. However, amidst the confusion, one trend seems clear: Colleges are being mandated to use more formalized adjudicatory processes. College “court,” for better or worse, is emerging. But will a trend toward mandated formal adjudicatory models in higher education propel other models—perhaps ones higher education chooses for itself?

Integrating ADR Into the Process

Our extensive experience with actual court systems leads us to believe the answer will be yes. The legal system itself now depends heavily on alternative dispute resolution (ADR)—which includes mediation. Individuals with serious disputes often want, need and even deserve ADR. ADR gained widespread acceptance a generation ago for the simple reason that not everything can, or should, go to court or be subject to adversarial or overly formal processes.  What happened in the legal system is now happening on campuses: Colleges are relying on alternative forms of dispute resolution of their own devise—educational equivalents of ADR that, as we advocate, will benefit immensely from being integrated with received wisdom regarding ADR from the legal field.

Struggling to maintain autonomy in the face of external regulation and find sustainable solutions, colleges need help.

Consider as a prime example the recent evolution of Title IX compliance work. Individuals impacted by sex discrimination often actively seek to avoid formalized adjudicatory processes; they instead desire (even demand) outcomes and interventions that colleges sometimes struggle to offer—meaningful long-term resolutions, truth (not posturing in a hearing), healing, social justice, apologies, creative remedies and, yes, learning. Every Title IX coordinator has interviewed students who do not wish to attend hearings or invoke sanctions. To some students, being forced into a formal, adversarial hearing seems like a sanction in and of itself. Moreover, the use of no-contact arrangements is now ubiquitous in Title IX work—often dominating the time and energy of Title IX administrators. Consider also that many well-trained and dedicated dispute resolution specialists on campuses—members of the Association for Student Conduct Administration, Title IX investigators, etc.—are lamenting that the educational function of student discipline is now floundering in a tide of adversarial, legalistic formalisms. Litigation is replacing education—law over learning.

Struggling to maintain autonomy in the face of external regulation and find sustainable solutions, colleges need help. We recommend self-help for higher education—combining existing and functional dispute resolution practices on campus with proven mediation techniques and experienced neutral mediators.

The Need for Experienced Neutrals

The spread of mediation in higher education will be facilitated by the cadre of trained and experienced neutrals available to integrate with the higher education industry. College mediation practices can have access to lawyers and retired judges with extensive experience—some in sexual violence matters in other contexts, such as criminal justice or in the business world. The point is not to replicate other systems or simply parachute neutrals into higher education. Colleges and universities will not want to replicate the criminal justice system, which serves different goals and itself is undergoing deep and fundamental change (and has struggled with issues of social justice, including dealing with acquaintance sexual violence). Mediation, by its very nature, is not uniform and must adapt to and serve the environment in which it operates. Experience in business or criminal court mediation provides useful training for mediators; much of what mediators learn in one context is transferrable to other situations. Uniquely, mediation in the higher education context must be driven by learning and educational outcomes.  A proposed model developed with academia at its forefront could involve internal school resources, e.g., counselors, advisors, etc., serving as the first step to work with the parties involved, and the second step could introduce external professionally trained mediators who understand the nuances of school campuses and the reported policy violations that occur there. Experienced neutrals will be population sensitive, recognizing, for example, that traditional-aged college students are at a critical stage of development.

Many institutions are confused about which models of dispute resolution are, and will remain, legally compliant.

The resources to integrate mediation into higher education are already available. Entities experienced in dispute resolution system design, such as JAMS, are available to work with higher education in developing sustainable and facilitative dispute resolution models for the colleges of the future. Colleges have the opportunity to enlist retired judges, for example, whose expertise has been developed by tax dollars. A pioneer in the field of ADR, the late Harvard professor Roger Fisher, might have implored us to “get to yes” with experienced mediators, as opposed to “getting to no” with adversarial processes.

Modern Solutions to Historical Problems

The rise of mediation in higher education will not herald the arrival of an exogenous force. Higher education neutrals must connect their knowledge and experience with dispute resolution trends from within higher education. College administrators have recently made significant strides to make historical college discipline codes more responsive to the modern demands of social justice and more respectful of students in conflict with others or with the institution itself. Institutional efforts at implementing restorative justice models and using educational conferences, however, have struggled to gain legal traction in court and with regulators. Yet restorative justice techniques have great potential for higher education institutions—working with individuals’ lived experiences, healing and focusing upon community building and reclamation.

Restorative justice techniques were borrowed from the legal system, where they have shown promise in difficult-to-resolve matters—for example, those involving sexual misconduct among acquaintances. Combining college restorative justice practices with mediation and trained higher education neutrals offers the potential for even more promising outcomes. (Some prosecutors in criminal justice systems use a form of restorative justice, but there is a coercive aspect to implementation in this context. Prosecutors can use restorative justice as leverage over criminal defendants—i.e., participate or go to jail. Colleges, however, are at liberty to divorce restorative justice practices from a prosecutorial or adversarial function—and instead connect such practices with educational functions.)

Many colleges also use educational conferences as a point of contact with students in conflict with the institution or others, but as valuable as they may be, proponents of highly legalistic and adversarial systems of dispute resolution are inclined to view these conferences as defective hearings—not valuable educational interventions where trained educators in the role of facilitators explore how students may learn to make better decisions or resolve conflicts as active agents in the resolution process. Restorative justice practices and educational conferences capture many, if not all, of the significant features of modern mediation. On its own, higher education has been charting a path toward what we see as an evolving form of  mediation. It’s time to take the next step and integrate good work on campus with skills and skilled professionals in the ADR field.

A recent court decision on due process extolled the virtue of cross-examination as a tool to find the truth; in the educational context, the greatest tool to uncover the truth may be building trust. There are unusual matters where hope for trust and learning are gone. There will be times when formal adjudicative processes will be necessary and appropriate, when individuals have so transgressed our educational community norms that educational opportunities have ceased and there is nothing to mediate. But the majority of conflict on campuses occupies other spaces where learning and healing opportunities are often present.

Stepping Along the Right Path Forward

Our colleges deserve dispute resolution processes suited to our industry, ones that we have created. Mediation offers a path forward, building on the very instincts of educators to create facilitative, not adversarial, learning environments. Enter experienced third-party neutrals, those unaffiliated with the school, whom would be able to not only foster trust among the parties, but also between the parties and the school by virtue of the very fact that they aren’t a member of administration.  Seasoned external and skillful mediators brought to campus for their dispute resolution expertise alleviates perceptions of bias and provides safeguards against potential overburdening of faculty and staff. It is time for a common sense idea to enter the cultural dialogue in higher education. We can often work things out with a little help from others, but when we can’t, there is always the court system to fall back on.

Hon. Jane Cutler Greenspan (Ret.)

 Hon. Jane Cutler Greenspan (Ret.) is a JAMS neutral, based in Philadelphia. She routinely serves as an arbitrator and mediator in complex commercial, labor, financial and business disputes, as well as an adjudicator in a number of higher education Title IX cases. 

Peter F. Lake

 Peter F. Lake is a law professor and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. He is also a senior higher education consulting attorney with Steptoe & Johnson LLP.

Categories
Military Trauma Informed

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

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.

Source: http://www.ifeminists.net/e107_plugins/content/content.php?content.1459

Categories
Uncategorized

Title IX professionals warn colleges to be wary of ‘trauma-informed’ ideology

Title IX professionals warn colleges to be wary of ‘trauma-informed’ ideology
‘Several cases on our desk were catalysts to release a statement’
An organization that represents Title IX officials has a surprising recommendation for its members: Stop relying on unproven scientific claims.
The Association of Title IX Administrators issued a position statement last month on “Trauma-Informed Training and the Neurobiology of Trauma,” warning that training for the field is going in an “unhealthy direction.”
Many ATIXA members are involved in sexual-misconduct proceedings on college campuses, and their training materials may direct them to show bias in favor of accusers, the statement explains.
It cited a common statement in training at schools across the country:
Trauma leaves tracks on its victims. It is very difficult to fake or “act” the sorts of symptoms [of trauma]. When someone displays these symptoms, this alone is evidence that they have been victimized.
Using such materials in training can endanger the integrity of proceedings, prompting ATIXA’s position statement, the group wrote. “To assert that trauma cannot be faked is as flagrantly false a claim as asserting that trauma is proof of assault.”
Pushing back against trauma-informed training will be an uphill battle. An influential nonprofit that pioneered the training re-released a 2016 bulletin on the neurobiology of trauma in July, prompting a lengthy rebuttal by a due-process group this month.
ATIXA supplies trainings to “thousands of administrators each year” and then watches to see how the training is implemented, President Brett Sokolow told The College Fix in an email last week.
“In this case, our trainings were not producing the desired effect, as other trainings were counter-manding the content we were offering,” the veteran Title IX consultant said. “Several cases on our desk, plus the Syracuse case ruling on the motion to dismiss, were catalysts to release a statement.”
Sokolow was referring to a May court ruling that allowed a Title IX lawsuit against Syracuse University to continue. The Syracuse conduct board received trauma-informed training that led it to see an accuser’s inconsistent and contradictory statements as evidence of a “traumatic event” like she described.
The court said this training, which is mandated by New York law, is plausible evidence of gender bias. The parties settled a week after ATIXA released its statement.
Some are ‘politically motivated to extrapolate well beyond’ the science
Sokolow admitted that “due process was not a top ‘radar screen’” for ATIXA when the organization started in 2011, the same year the Obama administration released its “Dear Colleague” letter on campus sexual-misconduct investigations.
ATIXA believed that due process was important but “we assumed members were getting solid due process training content elsewhere,” he said.
“We were focused on building Title IX know-how because we sensed that was what was lacking in the field, and we only had so much time to cover that content in trainings,” Sokolow said.
The group would remind members to get due process training elsewhere, but decided in 2013 to start providing more of that content in its own trainings. The due process trainings are not popular, Sokolow said, but they are “important” so ATIXA will continue to offer them.
While noting its statement could be “controversial,” ATIXA gives credit to journalist Emily Yoffe for sounding the alarm about trauma-informed training in The Atlantic two years ago.
She said popular theories about the “neurobiology of trauma” were “junk science,” and while ATIXA doesn’t completely agree with Yoffe, “her points needed to be made.”
Practitioners in the Title IX field, including coordinators, investigators, and administrators, have “gotten way ahead of the actual science,” according to the Aug. 16 statement by ATIXA’s board of advisors.
Some have been incorrectly applying the science that is out there, and are “politically motivated to extrapolate well beyond any reasonable empirical conclusions currently supported by the science.”
Don’t put ‘non-empirical, biased training on your resume’
Although ATIXA thinks the research could support trauma-informed theories one day, right now “much of what people think they now know about trauma is far more conjectural than empirical.” People in the field need to “take a collective step back” and not cite some of the training sources as “gospel,” according to the statement.
To avoid bias, the group recommends that administrators get their trainings from a “balanced source” or a program funded by a federal grant. “You need to assess whether you can afford to have a non-empirical, biased training on your resume in this age of litigation,” the statement warns.
Trauma can not be used to replace evidence, ATIXA said, urging members to find “reputable trauma-informed investigation and interviewing practices and techniques.” They need to resist “the temptation to allow evidence to be influenced by conclusions about the neurobiology of trauma that are not empirically-supported.”
Sokolow told The Fix many members are concerned that trauma-informed theories are endangering Title IX investigations “both in their professional practices, and with respect to court challenge.”
Despite “various articles and publications” decrying some aspects of trauma-informed theory, many in the field seem “overly influenced by the trauma-informed freight train,” he said, explaining the “strongly-worded caution” from ATIXA.
ATIXA offers trauma-informed tracks that focus “on both the neurobiology and the trauma-informed interview practice,” but they should “not be taken as evidence in investigations,” according to Sokolow.
“[W]e’re not perfect, but we’ve tried early on to recognize trends and issues in the field as they emerge, and to adjust our current trainings and develop new trainings as the field evolves,” he concluded.
‘The impacts of trauma on memories and recall are widely variable’
When End Violence Against Women International, known for its Start by Believing campaign, re-released its document on neurobiology of trauma and interviewing techniques, a group that promotes due process in criminal justice was ready to take it apart.
The Center for Prosecutor Integrity published a rebuttal written by two behavioral neuroscientists, Sujeeta Bhatt of the National Academies of Sciences, Engineering, and Medicine, and Susan Brandon, formerly of Yale University’s psychology department.
“The impacts of trauma on memories and recall are widely variable,” the rebuttal reads: It is possible for trauma to cause vivid memories, no memories, distorted memories, or incorrect memories.
This counters the claim of trauma-informed advocates that people who are unable to recall events, or who have inconsistencies in their story, should be evidence that the incident occurred, according to the press release by the center.
“We do not assert that a victim should be treated as if he or she is lying,” but rather, the accuser and accused should be approached in “an unbiased manner,” the rebuttal says.
Bhatt and Brandon found that victims of sexual assault “may be traumatized in ways similar to victims of other kinds of potentially traumatic events,” like domestic abuse:
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.
The best way to get an accurate account of the event from a person, Bhatt and Brandon write, “is to create a situation where the individual can best tell their own story, in their own words, and at their own pace.”
Brandon, one of the authors of the rebuttal, told The Fix that ATIXA’s position statement was “quite good” and she agrees “with much” of it.
ATIXA’s warning to not substitute the neurobiology of trauma for evidence “was quite apt,” the consultant on investigative interview techniques wrote in an email.
“I would add that we should avoid the use of information on the neurobiology of trauma also to substitute for showing empathy,” Brandon said.
When neurobiology is used to explain inconsistencies and make “victims look more plausible,” she said, it creates another risk of bias: that investigators will expect “victims to exhibit certain symptoms and behaviors.”