‘Trauma Informed’ Approaches to Sex Assault Are Catching On. They’re Also Facing a Backlash.

Certain details of her sexual assault at a fraternity outing remain fuzzy to this day. She couldn’t tell investigators how long it lasted, what time it happened, who was there right before and after the assault occurred, or how she got back to her room when it was over.

The police refused to press charges, citing a lack of physical evidence and the test for a date-rape drug that came back negative.

But, months later, a Georgia university whose investigators had been trained in the neurobiological effects of trauma came to a different conclusion. After giving her time to piece together the painful details and weighing the accounts of both students, the university scheduled a hearing, and the student accused of assault agreed to leave the institution.

“Trauma informed” approaches toward investigating campus assault complaints are changing the way investigators interpret inconsistent reports or jumbled timelines.

Where lapses in memory or chronological glitches once were seen as holes in an account, trauma-informed practices encourage investigators to start with an open mind. Proponents of the practices are quick to point out that that open mind should extend to the accused, as well.

But that’s not what’s happening, according to critics who see the trend as more evidence that the system is stacked against the accused. If inconsistencies can be explained away by trauma, they ask, how can people accused of assault defend themselves?

The account described above came from Lisa Anderson, a lawyer who runs a nonprofit called Atlanta Women for Equality.

When the student her nonprofit represented struggled to recall details, “The investigators were patient with her and realized it would take a while to physically put the images together into something that would make her remember the most traumatic thing she’d ever experienced,” Anderson says.

Jim Hopper, a teaching associate at Harvard Medical School and expert on psychological trauma, travels the country training campus officials in how to conduct trauma-informed investigations. He starts by explaining what happens during an assault.

The brain’s defense circuitry, he says, takes over, and a surge of stress chemicals is released. They can impair or even effectively shut down the prefrontal cortex, which controls rational thought.

The brain falls back on reflexes and habits, which might mean passively resisting or submitting to an assault. Depending on the severity of the trauma, someone might freeze, the way a deer does when caught in the headlights, or a police officer when a gun is pointed at his face. They might even space out or be paralyzed by terror. The brain at this point has no access to effective responses, he says.

The same surge of stress chemicals alters memory processes, Hopper says. Certain central details — like a hand on the throat — might be burned into memory, while others never get encoded or quickly fade.

In short, it can become harder, or even impossible, to make sense of what one is experiencing, to respond rationally, and to recall what happened in a complete, sequential way, Hopper says.

Investigators are trained to look for inconsistencies in statements, so this kind of confusion can raise doubts about a student’s complaint. That’s one reason very few rape cases result in charges being filed, much less convictions, Hopper points out.

“These are the easiest violent crimes to get away with, and there are reasons. A lot of it is that people don’t understand how someone behaves in the middle of a sexual assault.”

Presuming Guilt?

But not everyone is convinced that the science he and other trauma researchers describe is solid.

An open letter signed in February by 137 law professors, legal and criminal-justice experts said trauma-informed practices “represent an attempt to impute a veneer of scientific respectability to the broader ‘“believe the victim’ movement.” The letter called on college administrators, federal officials, and others to stop using what they grouped together as victim-centered, trauma-informed, and believe-the-victim approaches.

“By their very name, their ideology, and the methods they foster, ‘believe the victim’ concepts presume the guilt of an accused,” the letter reads. “This is the antithesis of the most rudimentary notions of justice. In directing investigators to corroborate allegations, ignore reporting inconsistencies, and undermine defenses, the ‘believe the victim’ movement threatens to subvert constitutionally-rooted due process protections.”

The letter is sponsored by a group called Stop Abusive and Violent Environments, whose goals include protecting people from false allegations of sexual misconduct.

Hopper characterizes the letter as misleading. “I think it’s another example of the unfortunate polarization we see on so many issues in our culture,” he says. “That polarization is not conducive to thoughtful, reasoned discussions on complex policy issues.”

He disagrees with the critique that a defendant doesn’t stand a chance in a trauma-informed investigation.

Investigators shouldn’t blindly believe everything an accuser reports, he says. “But don’t disbelieve someone because they didn’t fight or yell or remember the sequence of things exactly the same way.”

Fewer than one in 10 victims of a campus sexual assault report the violation to campus authorities, according to Laura Palumbo, a spokeswoman for the National Sexual Violence Resource Center. One reason is fear they won’t be believed, she says.

They’re aware that many contend that reports of a rape crisis on campuses are overblown, and that students who regret drunken hookups are falsely reporting them as rape.

In fact, the center estimates, only 2 percent to 10 percent of rape reports turn out to be false.

Many of the complaints about trauma-informed processes are coming from law-school faculty members who, Palumbo says, are trying to mirror the criminal-justice system’s approach to handling complaints. “Campus systems are intended to be different and distinct from the criminal-justice system,” she says.

Federal Title IX guidance issued during the Obama administration says campus training should include “the effects of trauma, including neurobiological change.”

Even though the current education secretary, Betsy DeVos, has rescinded the Obama-era directives, such training remains widespread.

Under new guidance issued by DeVos, colleges can choose between two standards when determining guilt. They can go with the Obama-era “preponderance of evidence” standard, lower than what’s used in criminal cases, which requires colleges to find alleged perpetrators responsible if it is more likely than not that an assault occurred.

Or, they can use a higher “clear and convincing evidence” bar. In any case, the standard should be consistent with how other student conduct cases are handled.

‘50 Percent and a Feather’

The preponderance-of-evidence standard typically used in campus rape cases “has been referred to as 50 percent and a feather, and when that feather may be junk science, that’s concerning,” says Adam Candeub, a professor of law at Michigan State University who signed the open letter.

His characterization of trauma-informed investigations as being based on bad science is echoed in the letter he signed. It is also reflected in a piece in The Atlantic in September that said such approaches assume the accused person is guilty.

In a blog post this year for Psychology Today, Hopper said the science he describes is solid and sought to “bring clarity to issues” the author had “clouded with confusion and alarmist claims.”

Critics contend that there isn’t enough solid science to back up conclusions that trauma can fog memory. Richard J. McNally, a professor of psychology at Harvard, came to the opposite conclusion in his 2005 book Remembering Trauma, finding that people remember details more vividly after a traumatic event.

In addition to what he considers shaky science, Candeub says students who are accused of assault are already at a disadvantage because they can’t cross-examine their accuser. (They can submit questions to a third party, but that person isn’t obligated to raise them).

Elizabeth Bartholet, a professor at Harvard Law School who has challenged policies she thinks are unfair to accused students, agrees that trauma-informed approaches tip the balance further against accused students.

“I’m concerned that some of the ‘trauma informed’ instructions tell adjudicators to treat what are typically considered signs of a witness not being credible as instead signs of the witness having been traumatized by sexual assault, and this risks feeding into a generally biased fact-finding system,” Bartholet wrote in an email to The Chronicle.

Justin Dillon, a lawyer who has represented numerous men accused of sexual assault, says many feel stuck in an impossible situation.

“If the complainant comes in and tells a completely consistent story with completely consistent evidence, the panel finds her credible and finds him guilty,” he says. “If she comes in and tells a wildly contradictory story and is undermined by things like exculpatory text messages, and they explain that away on the basis of trauma, they will believe her and find him guilty.”

In criminal cases, investigators should start out by believing both the accuser and the accused and see where the evidence takes them, says Kimberly A. Lonsway, research director for End Violence Against Women International, a nonprofit training organization whose Start by Believing public-awareness campaign began in 2011.

“We’ve always known that victims often have certain problems with their statements. They aren’t chronological. They aren’t linear. What’s new is that now, we understand the neurobiology behind it,” Lonsway says.

“If you’re being falsely accused, what you want is a good investigation,” she adds. “That’s what’s going to clear you. When an investigator expresses doubt, either explicitly or implicitly, victims often withdraw from the process or even recant.”

Hopper agrees. “If someone really has been sexually assaulted, the stress of encountering an investigator who conveys not believing them can make it harder to retrieve critical pieces of memory, because stress impairs recall,” he says. As a result, they may be less likely to share important information they do recall, and generally less likely to cooperate with the investigation.

“If someone reports ‘I got mugged last night,’ investigators don’t start by disbelieving them,” he says. “We shouldn’t treat people who have been sexually assaulted differently than anyone else.”

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.