What It Means to Be Trauma-Informed: Best Practices In Title IX Investigations and Hearings The Consortium For Title IX and Equality in Higher Education Spring Conference James C. Dockery, JD Assistant VP Institutional Equity & Compliance www.utdallas.edu/titleix Developed by Brandy Davis, JD Director of Title IX Initiatives Why Trauma-Informed? To avoid re-traumatizing victims and perpetuating a hostile environment Better investigations AND OF COURSE
Because OCR says so See, e.g., OCRs Questions and Answers about Title IX and Sexual Violence (April 14, 2014), University of Virginia Resolution Agreement, OCR Docket No. 11-11-6001 (Sep. 17, 2015) What is Trauma? Psychological trauma is the unique individual experience of an event or enduring conditions, in which: The individuals ability to integrate his/her emotional experience is overwhelmed, or The individual experiences (subjectively) a threat to life, bodily integrity, or sanity Esther Giller, Sidran Institute. What is Psychological Trauma? (1999)
https://www.sidran.org/resources/for-survivors-and-loved-o nes/what-is-psychological-trauma/ What is Trauma? Contd. [T]rauma is defined by the experience of the survivor. Two people could undergo the same noxious event and one person might be traumatized while the other person remained relatively unscathed. - Esther Giller Who Should be Trauma-Informed? Title IX Coordinator Campus communicators and first responders Any school officials responsible for discussing safety and confidentiality with students should be trained on the effects of
trauma and the appropriate methods to communicate with students subjected to sexual violence. (2011 OCR Q&A, E-2) Investigator(s) Campus law enforcement Legal counsel Hearing/appeals officers and panelsanyone involved in grievance process Service providers such as counselors and other healthcare professionals Other employees and faculty Students The Impact of Trauma Factors That Tend to Increase Traumatic Impact of Event Severity
If it is interpersonal (as opposed to noninterpersonal, such as accidents and natural disasters) Interpersonal traumas may impact victims views regarding safety, intimacy, and trustworthiness of others When it is chronic or repeated Persistent traumas may leave the survivor feeling overwhelmed, helpless, and with a sense that the trauma is inescapable (Wamser-Nannay and Vandenberg, 2013) Sexual Violence By the Numbers 44% percent of reported sexual assaults take place before the victim is 18. One in three-to-four girls, and one in five-to-seven boys are sexually abused prior to leaving high school.
Females ages 16-19 are 4 times more likely than the general population to be victims of rape, attempted rape, or sexual assault. Women ages 18-24 who are college students are 3 times more likely than women in general to experience sexual violence. Females of the same age who are not enrolled in college are 4 times more likely. 1 out of every 10 rape victims are male. 21% of TGQN (transgender, genderqueer, nonconforming) college students have been sexually assaulted, compared to 18% of nonTGQN females, and 4% of non-TGQN males. (rainn.org) Counterintuitive Victim Behavior Why didnt she scream? Why didnt she try to run away? Why didnt he fight back?
How can it be rape if she didnt say no? Response During an Assault Fight, Flight, Or Freeze When a person is under stress, a cocktail of stress chemicals are released: Catecholamines: Fight or flight response includes epinephrine (adrenaline), norepinephrine (noradrenaline), and dopamine Cortisol: Makes energy available Opioids: Prevents pain Oxytocin: Promotes good feelings Fight or Flight Increased heart rate & blood pressure, hyper
ventilation, glucose to major muscles Digestive and immune systems shutdown to conserve energy for fight or flight Rational thought impaired (e.g., may not realize the door is open or that someone in the next room would hear if she screamed) Sensory details, especially olfactory, more prominent Focus on survival rather than remembering what happened Opioids released have a numbing, spacey effect Freeze Sometimes a victims body shuts down (freezes) tonic immobility Deer in headlights Parasympathetic nervous system is activated
Playing dead (aka collapsed immobility) Unable to speak Muscles relax Endorphins released to numb pain, decrease panic, and increase chances of survival
Orientation towards fear with no outward sign of stress; glazed look but conscious Numbness Sense of heaviness Feeling stuck in some part of the body Dissociated from emotions, rational thought is decreased Why Would the Body Freeze? Research studies with animals have documented that sometimes the best way to protect the body is to freeze, to play dead, fighting back or fleeing would only prolong the threat and endanger the body even worse (maybe even risk death). In other words, sometimes the safest solution isn't fight-or-flight. The safest option is to freeze and so the brain and body work together to hold the organism still until the threat has passed.
- Dr. Rebecca Campbell, professor of community psychology at Michigan State University Fight, flight, or freeze = three normal, biological responses to threatening encounters These responses are autonomic, which means they happen automatically without conscious thought or decision making Tonic Immobility 12-50% rape victims experience tonic immobility during assault, and most data suggests that the rate is actually closer to the 50 percent than the 12 percent TI appears to be more common in victims who have been assaulted before (childhood, adolescence, or adult)
Associated with increased self-blame Associated with decreased likelihood of seeking help Response of friends, family, service providers can be hurtful due to lack of understanding (Why didnt you fight?) Behavior During Interviews and Hearings Some victims behavior during interviews or hearings may appear odd. Remember that they may continue to be affected by the chemical cocktail associated with trauma when recalling a traumatic event
Various normal responses include: Emotional, crying, hysterical Flat affect seeming numb Laughing, light-heartedness, inappropriate Cycling of emotions Trauma and Memory She cant get her story straight How could she not remember something as significant as that? He is obviously making it up as he goes along Trauma and Memory
Explicit Memory: can be consciously and intentionally recalled Facts, general knowledge, autobiographical (placing self in space & time) Implicit Memory: Remember unconsciously and effortlessly Emotional responses, body sensations, reflexive actions Trauma and Memory Under extreme stress, the initial sorting of explicit and implicit layers continues, but processing is interrupted Trauma and Memory Memories of a Traumatic Event:
Stored in amygdala (implicit) Non-linear recall of events Poor recall of contextual information (like the layout of a room) Details are fuzzy Focus may be on what someone did to survive event; what are perceived as important details to victim may seem odd to investigator Memories of a Non-Traumatic Event:
Stored in hippocampus (explicit) Linear recall of events Specific details Significant details make sense to investigator Trauma and Memory The hippocampus may go into a super encoding state briefly after the fear kicks in: Victims may remember in exquisite detail what was happening just before and after they realized they were being attacked, including context and the sequence of events They are likely to have very fragmented and incomplete memories for much of what happens after that
Rationale: If an animal is to survive, its most important to remember what predicted an attack, not exactly what happened after the attack was underway. The brain is flooded with stress chemicals and storing predictive information, and it cannot absorb much new information (Hopper 2016) Long-Term Effects of Trauma 94% of women who are raped experience post-traumatic stress disorder (PTSD) symptoms during the two weeks following the rape. 30% of women report PTSD symptoms 9 months after the rape. 33% of women who are raped contemplate suicide. 13% of women who are raped attempt suicide.
Approximately 70% of rape or sexual assault victims experience moderate to severe distress, a larger percentage than for any other violent crime. 38% of victims of sexual violence experience work or school problems, which can include significant problems with a boss, coworker, or peer. (rainn.org) Long-Term Effects Even years later, traumatized people often have enormous difficulty telling other people what has happened to them. Their bodies re experience terror, rage, and helplessness, as well as the impulse to fight or flee, but these feelings are almost impossible to articulate. Trauma by nature drives us to the edge of
comprehension, cutting us off from language based on common experience or imaginable past. -- Bessel A. Van der Kolk, The Body Keeps Score (2014) PTSD Posttraumatic stress disorder (PTSD) is a psychiatric disorder that can occur in people who have experienced or witnessed a traumatic event. Symptoms of PTSD fall into four categories and vary in severity: Intrusive thoughts such as repeated, involuntary memories; distressing dreams; or flashbacks of the traumatic event. Flashbacks may be so vivid that people feel they are re-living the traumatic experience or seeing it before their eyes. Avoiding reminders of the traumatic event may include avoiding
people, places, activities, objects and situations that bring on distressing memories. People may try to avoid remembering or thinking about the traumatic event. They may resist talking about what happened or how they feel about it. PTSD Contd. Negative thoughts and feelings may include ongoing and distorted beliefs about oneself or others (e.g., I am bad, No one can be trusted); ongoing fear, horror, anger, guilt or shame; much less interest in activities previously enjoyed; or feeling detached or estranged from others. Arousal and reactive symptoms may include being irritable and having angry outbursts; behaving recklessly or in a self-destructive way; being easily startled; or having problems concentrating or sleeping.
Many people who are exposed to a traumatic event experience symptoms like those described above in the days following the event. For a person with PTSD, symptoms last for at least a month and often persist for months and sometimes years. (American Psychiatry Association, What is PTSD? 2014) Secondary Traumatization Secondary victimization refers to behaviors and attitudes of social service providers that are "victim-blaming" and insensitive, and which traumatize victims of violence who are being served by these agencies. Institutional practices and values that place the needs of the organization above the needs of clients or patients are implicated in the problem:
Failure to offer appropriate services and support Belief in rape myths that blame the victim for the assault Provision of services in a way that damages the victims wellbeing (Campbell 1999) When to Conduct An Initial Interview There is evidence that waiting two days (two full sleep cycles) to conduct the interview of a victim may result in more coherent, detailed information because the brain will have had a chance to recover and consolidate memories during that period
(Campbell 2012) Trauma-Informed Interview Tips Think about presentation and atmosphere. Be mindful of first impressions (in writing, on the phone, or in person). Where is the interview taking place? Consider privacy, light, noise, accessibility, etc. How do you present yourself? Trauma-Informed Interview Tips To the extent possible, help the complainant feel empowered in the process. Emphasize choices and give the complainant a sense of control whenever possible: Whether to file a formal complaint
Whether to pursue a police report Whether to begin the interview at initial meeting, or have preliminary informational meeting first When to take breaks BUT...be honest about the extent to which they are NOT in control in the process (e.g., circumstances in which the college would move forward against their wishes) Trauma-Informed Interview Tips Start the interview by having the complainant tell their story, in their own words, with minimal interruptions necessary, before asking follow-up questions. Ask open-ended questions whenever possible. Save the technical questions for the end (Can we go back to). Provide sufficiently detailed information and a clear explanation
of your role as investigator (or other role) and the investigation process. Provide information in writing and go over it again in person (do this for both parties). Think ahead regarding basic information so they dont have to ask (but encourage questions) Avoid jargon and acronyms Explain evidence standard and what the findings will mean Trauma-Informed Interview Tips Try to use the interviewees words back to him or her, but clarify meaning of slang (He told me to give him a BJ) and vague phrases (She touched my my private area). Dont let YOUR discomfort take you out of the moment. The investigator MUST be able to talk about blow jobs and BDSM
without reacting with shock or judgment. Think before you speak. Avoid questions or comments that may appear to victim-blame. Be strategic and purposeful with regard to word choice and tone. Be mindful of body language. Is the question relevant? (What were you wearing?) Is the question clear? Help me understand Trauma-Informed Interview Tips Maintain appropriate boundaries for your role, but try to build a connection. Limited small talk is okay (with both parties). Getting to know a little about the parties helps build rapport and may also help your investigation. Dont rush. Give time to process. If you sense that he or she is getting tired or irritated, take a break or quit for the day.
Keep the parties updated the status of the investigation (timeline, next steps, etc.). Share information between investigators or co-interview (including with law enforcement) when possible to avoid having the complainant tell his or her story again and again. Trauma-Informed Adjudication University of Virginia OCR found (among other things): The University did not make arrangements so that the complainant and respondent didnt have to be in the same room at the same time (the policy said such options were available at the sole discretion of the hearing panel chair) The University used a mediation-like process for informal resolution of sexual assault the complainant sat down with the respondent in front of Dean of Students/hearing panel chair to
discuss his or her feelings about alleged incident and its impact The resolution agreement required training on the potential impact of trauma on the behavior of victims of sexual harassment or sexual violence, including how it may impact participation in the investigative process and the hearing by the Review Panel. (U. Va. Resolution Agreement, Sept. 17 2015). Dos and Donts Trauma-Informed Hearings Do not allow parties to cross-examine each other. OCR strongly discourages a school from allowing the parties to personally question or cross-examine each other during a hearing on alleged sexual violence. Allowing an alleged perpetrator to question a complainant directly may be traumatic or intimidating, and may perpetuate a hostile environment. A school may choose, instead, to allow the parties to submit questions to a trained third party ( e.g. , the hearing panel) to ask the
questions on their behalf. OCR recommends that the third party screen the questions submitted by the parties and only ask those it deems appropriate and relevant to the case. (2014 OCR Q&A, F-6). Do not offer informal resolution methods, such as mediation, in cases involving violence (even if voluntary; even if requested by the complainant). Dos and Donts Trauma-Informed Hearings Do not allow inappropriate questions or information to be presented. Questioning about the complainants sexual history with anyone other than the alleged perpetrator should not be permitted. Further, a school should recognize that the mere fact of a current or previous consensual dating or sexual relationship between the two parties does not itself imply consent or preclude a finding of sexual violence. The school should also ensure that hearings are
conducted in a manner that does not inflict additional trauma on the complainant. (2014 OCR Q&A, F-7). No Why are you such a slut? Questions Dos and Donts Trauma-Informed Hearings Do provide options for the parties participation in the hearing: strategic seating arrangements, closedcircuit testimony, telephone testimony, Skype, using a room divider or separate hearing rooms. Do ensure the parties know what to expect during the hearing. References Giller E. What is psychological trauma? Sidran Institute website. https ://www.sidran.org/resources/for-survivors-and-loved-ones/what-is-psychological-trauma. May 1999.
Wamser-nanney R, Vandenberg BR. Empirical support for the definition of a complex trauma event in children and adolescents. J Trauma Stress. 2013;26(6):671-8. Campbell R. Lecture presented: The Neurobiology of Trauma at Michigan State University; December 3 2012. (available at https://www.nij.gov/multimedia/presenter/presenter-campbell/pages/presenter-campbell-trans cript.aspx ) Hopper, Jim. The impact of trauma on brain, experience, behavior, and memory. http ://www.jimhopper.com/pdf/handout_for_interviewers.pdf. American Psychiatric Association. What is PTSD? https://psychiatry.org/patients-families/ptsd/what-is-ptsd. July 2015. Campbell R. and Raja S. Secondary victimization of rape victims: insights from mental health professionals who treat survivors of violence. Violence and Victims, V. 14 (3), 1999. (available at https://mainweb-v.musc.edu/vawprevention/research/victimrape.shtml) Campbell R. Talking about tonic immobility on tonights SVU.
http://www.joyfulheartfoundation.org/blog/talking-about-tonic-immobility-tonights-svu Oct. 10, 2012. Ensuring Fairness in Trauma-Informed Title IX/Clery Act Investigations May, 2017 STUDENT SEXUAL MISCONDUCT: ADDRESSING INSTITUTIONAL CULTURE AND COMPLIANCE Jeffrey J. Nolan, J.D. Dinse, Knapp & McAndrew, P.C. NACUA FEBRUARY 2014 CLE WORKSHOP FRIDAY, FEBRUARY 29 SATURDAY, MARCH 1 HILTON DOWNTOWN MIAMI, FL DINSE / KNAPP / McANDREW
www.dinse.com Legal Environment as of May 9, 2017 April, 2011 Office of Civil Rights (OCR) Dear Colleague Letter (DCL); http://www2.ed.gov/about/offices/list/ocr/letters/colleag ue-201104.pdf April, 2014 OCR Questions and Answers; http://www2.ed.gov/about/offices/list/ocr/docs/qa201404-title-ix.pdf 2014 VAWA Amendments to Clery Act October, 2014 VAWA/Clery regulations Incorporate several equal treatment of parties concepts found in DCL www.dinse.com
OCR Guidance Dear Colleague Letters are subject to change from one administration to another Trump administration recently withdrew 2016 DCL on transgender students Institutions should stay up to speed on current developments, and recognize that OCR guidance and perspectives is subject to change www.dinse.com Clery Act Procedural Requirements Final Clery regulations which require that parties will have equal rights include, e.g.:
to present witnesses and other evidence - to have similar access to information that will be used at the hearing - to attend pre-hearing meeting - to have advisor of choice (including legal counsel) present during interviews and any meetings www.dinse.com Jeffrey J. Nolan, 2016 39 OCR Procedural Issues Not Addressed in Clery Regulations
Clery requires institutions to state what standard of proof they are using, but does not mandate a preponderance standard Clery does not prohibit direct crossexamination of complainants www.dinse.com Recent Pertinent Case Law www.dinse.com Respondent Claims Recent years have shown substantial increase in number of cases, with significant developments in related case law
Reverse Title IX claims are surviving motions to dismiss more often (but not always) Student Handbook/contract, tort, implied covenant claims are common as well Constitutional due process claims common at public institutions www.dinse.com Illustrative Cases www.dinse.com Trauma-Informed, Fair Investigations and Adjudications
www.dinse.com Importance of Process Primary goal of investigations and adjudications is to determine in good faith what happened, under applicable burden of proof Investigations and adjudications should follow good practices and be defensible, because: First and foremost, institutions want to be fair and accurate in their decisions; and Investigations and adjudications will be scrutinized when a complainant or respondent is dissatisfied with result www.dinse.com
Jeffrey J. Nolan, 2016 Ensuring Fairness to All Parties Information about the potential effects of trauma, possible counterintuitive complainant behavior, and evidence of potential trauma must be viewed in the context of institutional disciplinary proceedings, in which: Individual cases must be judged on their own merits Decision in every case must be based on evidence presented, weighed under applicable standard of proof Cannot fill in evidentiary gaps with statistics, personal beliefs, or research findings Process must be fair and impartial to each party www.dinse.com
Implications for College and University Proceedings There are no bright-line rules Withhold pre-judgment: The parties may not act consistently with stereotypes Be aware of your own biases as well as those of the complainant, respondent and witnesses Understanding the potential effects of trauma can fairly level the playing field www.dinse.com Implications for University Proceedings Victim-blaming, relying on stereotypes, assuming that
real victims cry, struggle, report immediately, cut off all contact, etc., can result in inaccurate, flawed investigations and adjudications Trauma-related memory problems and counterintuitive behaviors do not necessarily establish that policy was not violated However, presence of those problems or behaviors, or evidence of possible trauma, do not necessarily establish that policy was violated www.dinse.com Interview Considerations Understand rationale for considering evidence of, e.g.: Motivations, choices, clothes
Use of drugs/alcohol Inconsistencies The point: you are not victim blaming; you are considering necessary details without prejudgment www.dinse.com Jeffrey J. Nolan, 2016 Interview Considerations Focus on What Can be Remembered Memories related to senses of smell (particularly), hearing, touch, taste, sight may be better formed due to effects of trauma on memory
Experience, thought process during event If fear motivated acquiescence without consent, specifically why afraid? Recollection of details may improve over time and in follow-up interviews www.dinse.com Jeffrey J. Nolan, 2016 Interview Considerations A FETI-influenced approach, e.g.: What are you able to tell me about your experience . . . ? What more are you able to tell me about that? Can you help me understand . . . ?
Can be used at the outset of interviews of both parties Can fairly use similar approach to inquire about experience of each party, then interview for clarification as necessary www.dinse.com Fairness in Investigations None of these good practices necessarily disadvantage or prejudice respondents Asking what are you able to tell me about, listening patiently, and following up sensitively and without judgment, does not prejudice respondents so long as:
You seek clarification of inconsistencies to extent possible, and Your decision is based on the most relevant, available facts, weighed under the applicable standard of proof www.dinse.com Summary A trauma-informed approach should encourage reporting and complainant participation Employed properly, a trauma-informed approach does not favor complainants or disadvantage respondents A trauma-informed approach recognizes and accounts for societal and personal biases and levels the playing field, therefore fairly promoting accuracy
Accuracy and fairness is important to all parties and the institution www.dinse.com 53 Questions? Jeffrey J. Nolan, J.D. Dinse, Knapp & McAndrew, P.C. [email protected] (802) 864-5751 www.dinse.com www.dinse.com
Investigation Techniques Legal Requirements of Trauma-Informed Sexual Assault Investigations Barbara L. Johnson, Esq. Duty to Investigate Under Title IX Once a [school] knows or reasonably should know of possible sexual harassment, it must take immediate and appropriate action to investigate or otherwise determine what occurred.
A [school] must take prompt and effective steps reasonably calculated to end the harassment, eliminate any hostile environment, prevent the harassment from recurring and, as appropriate, remedy its effects. These duties are a [schools] responsibility, regardless of whether a student has complained, asked the [school] to take action, or identified Duty to Investigate Under Title IX On April 7, 2017, a Texas federal judge allowed a former Baylor University
student to pursue her Title IX and negligence claims against school The student, who was raped by a former Baylor linebacker in 2012, has argued the schools conduct increased her risk of being assaulted The lawsuit is one of several against Baylor regarding its failure to investigate and deal with sexual assault Duty to Investigate Under Title IX
Above: Arthur Ray Briles. He left Baylor in the wake of a major sexual assault scandal in his football program. Baylors alleged failure to address and active concealment of sexual violence committed by its football players . . . was a form of discrimination. Baylors alleged knowledge of the need to supervise Elliot and protect female students plausibly constitutes deliberate indifference.
Finally, Baylors alleged indifference plausibly created an environment in which football players could sexually assault women, including Plaintiff, with impunity. That vulnerabilityor heightened riskplausibly Investigation Must Consider Trauma On top of a duty to investigate, schools must understand and anticipate issues surrounding trauma in fashioning their
investigations into sexual assault and harassment allegations Any school officials responsible for discussing safety and confidentiality with students should be trained on the effects of trauma and Interviewing Complainants Interviewing Complainants
First impression matters: can build complainants confidence in entire institutional response However, trauma affects everyone differently When should you conduct interview? Waiting two days may result in better recollection of events Where should you conduct interview? In person v. over the phone? Level of privacy?
Interviewing Complainants Introduce yourself, describe your role, and provide a clear and detailed overview of the investigation process Put complainant at ease while maintaining boundaries Provide necessary information in writing prior to interview, and go over it again in person (do this for accused/respondent as well) Explain evidence standard but avoid overly technical terms Complainant has option to
request the school maintain his or her confidentiality, which the school will consider Interviewing Complainants Have complainant recount what happened in their own words Recognize that complainants recollection may not be linear Clarify ambiguous or unclear statements (Help me understand) Keep interruptions to a
minimum Complainant may need additional time to prepare themselves to discuss the events at issue (Take all the time you need) Interviewing Complainants Reassure and empower complainant throughout interview Wait for complainant to finish speaking before asking follow-up
questions. Keep these questions simple and open-ended Explain your reasons for asking the questions Victims of trauma often can recount vivid sensory details, so consider asking sensory questions (What did you smell?) Interviewing Complainants Speak carefully and accurately Avoid words that imply consent or affection
Avoid victim blaming (be compassionate and nonjudgmental) Inform complainant of their rights and care for their needs Give them a sense of control, such as their decision whether to file a formal complaint and/ or police report BUT tell them about aspects of investigation beyond their control (e.g., you have an obligation to report names of Post-Interview Duties If a complainant does not
wish to file a criminal complaint or requests confidentiality, school still must launch an independent investigation and take immediate steps to protect complainant Take reasonable action in response to complainants information and keep door open for future, follow-up conversations Tell complainant you and the school will fully
support them and protect Post-Interview Duties Interim measures to protect complainant include: No-contact order Academic accommodations and support services Escort services Counseling and medical services
If school offers counseling as part of its Title IX obligation to take steps to protect Post-Interview Duties If complainant chooses not to pursue a formal investigation, school must weigh this request against seriousness of allegations and duty to protect students Interim measures not
enough; must consider next steps of investigation to remedy any hostile environment that may exist To the extent possible, share information with Post-Interview Duties Integrate interview details into investigation report How did complainant describe experience
(out of body?) Inform all parties of timeline and status of investigation Grievance procedure must contain prompt timeframe of process Whether an investigation is prompt will vary, Protect the Rights of Respondent Protect the Rights of Respondent When interviewing
respondent, be fair and thorough in hearing their account and give them ample opportunity to respond to complainants allegations Like with complainant, start with open-ended questions Avoid casting judgment or presuming guilt
Protect the Rights of Respondent Critics claim OCRs recent investigations and resolution agreements have incentivized schools to adopt policies that routinely violate the rights of students accused of sexual assault and harassment (who are overwhelmingly male) Many schools have replaced their preexisting clear and convincing evidence
standard with OCRs preferred preponderance of the Protect the Rights of Respondent Brandeis appears to have substantially impaired, if not eliminated, an accused students right to a fair and impartial process. And it is not enough to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a victim
is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a Protect the Rights of Respondent A covered university that adopts a policy of bias favoring one sex over the other in a disciplinary dispute to avoid liability
or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex. Doe v. Columbia Univ., 831 F.3d 46, 58 n.11 (2d Cir. 2016) Protect the Rights of Respondent In October 2016, OCR reached an agreement with
Wesley College in Dover, Del. over allegations that the school violated Title IX rights of a student accused of sexual misconduct. (Wesley Resolution Agreement, OCR Review 0315-2329, Oct. 12, 2016) Respondent alleged he was wrongly charged with sexual misconduct and expelled within seven days in April 2015 OCR found respondent Protect the Rights of Respondent
According to OCR, Wesleys violations included: Suspending respondent the same day it received report against him, even though it had not yet interviewed him Failing to interview respondent during investigation of complaint and providing him with incorrect policies and procedures Failing to give respondent
access to info in report NOT Trauma-Informed Investigations Are Inconsistent with Protecting Respondent Rights Ten common allegations of investigational bias. See VictimCentered Investigations: New Liability Risk for Colleges and Universities, Oct. 2016, http://www.saveservices.org/wp-content/uploads/Victim-Cent ered-Investigations-and-Liability-Risk.pdf Single-investigator approach (endorsed by White House in its Not Alone report, April 2014): investigator having multiple, conflicting roles and inadequate qualifications.
OCRs finding on Wesley College seems to question the legality of this approach No reasonable basis for initiating the investigation. Note, however, that OCR directs schools to endorse all allegations, regardless of merit Lack of proper notice, including delineation of charges, and improper preliminary actions Preventing respondent from contacting potential NOT Trauma-Informed Investigations Are Inconsistent with Protecting Respondent Rights
Ten common respondent allegations of investigational bias. See Victim-Centered Investigations: New Liability Risk for Colleges and Universities, Oct. 2016, http://www.saveservices.org/wp-content/uploads/Victim-Cent ered-Investigations-and-Liability-Risk.pdf Flawed inferences from the evidence, or a failure to consider relevant evidence. Avoid confirmation biases and instead follow the evidence Failure to reconcile inconsistent accounts by complainant and witnesses (again, one of the dangers of the always believe the victim approach) Explicit bias or an intentional predetermination of respondents guilt. This is the category with the largest number of respondent allegations Undue investigational delays. OCR urges investigations
be conducted within a period of days, not months (act to Trauma-Informed Adjudication Make sure the parties know what to expect going into the hearing (no surprises) Take steps to ensure the hearing does not inflict additional trauma on complainant Provide alternative
options for participation, such as telephone or Skype interviews Trauma-Informed Adjudication OCR made several, traumarelated findings about the University of Virginias pre2015 policies (see U. Va. Resolution Agreement): Failed to make arrangements so that complainant and respondent did not have to be in same room at same time
Used a mediation-like process to informally resolve sexual assault allegations: complainant (together with respondent) discussed the incident in Trauma-Informed Adjudication OCR strongly discourages allowing parties to crossexamine each other; may be traumatic for complainant and perpetuate a hostile environment Instead, allow parties to submit appropriate and
relevant questions to a trained third party to ask questions on their behalf DO NOT get into complainants prior sexual history except for their history with respondent (which does not itself imply consent or preclude Final Thoughts Countervailing Considerations: Responding promptly and seriously to all allegations of sexual assault and
harassment Respecting the rights of both complainant and respondent at every stage of the investigation Avoid knee-jerk reactions and a rush to judgment, especially if acting in response to criticism over previous investigations See, e.g., Rolling Stone being found liable for defamation for its Final Thoughts Act quickly and purposefully in response to allegations
Be impartial, respectful, and thorough Keep all parties well-informed of their rights and options, as well as the investigations progress Maintain a transparent and clearly documented process (take copious notes throughout investigation) DO NOT presume guilt or withhold information