Accused student initially treated as the victim
Indiana University’s Title IX procedures advise panelists in sexual-misconduct hearings to question accusers and accused students with completely different approaches and assumptions.
The training materials were published Thursday as evidence in a lawsuit against the public university for its “arbitrary, capricious” and gender-biased Title IX proceeding against an accused student.
In a pre-hearing motion for preliminary injunction filed Friday, “John Doe” says he was initially treated as the “victim” in the September 2017 investigation, which stemmed from a photo taken of his sexual activity with “Jane Doe.” (The lawsuit does not use the common “Roe” pseudonym for the accuser.)
He told the Office of Student Conduct that the photo “did not bother” him and that Jane had told him the same thing. John didn’t identify Jane to the office “to protect her privacy.” (The sexual encounter apparently took place at a fraternity party, though the lawsuit doesn’t state that as fact. John says his fraternity president told him to “downplay” the incident.)
Eight months after their sexual encounter, Jane alleged that John had sexually assaulted her at the party. The following month a campus police officer interviewed John for an hour before telling him Jane had accused him.
The investigation started out on unequal and biased footing against John, with campus police interviewing male witnesses identified by John and the Office of Student Conduct interviewing female witnesses, according to the suit.
The office didn’t bother listening to the interviews recorded by police, instead summarizing the interviews based on written police reports. A hearing panel suspended John for four years, and the decision was upheld by an appellate officer in November.
John alleged the university violated Title IX, its contract with him and its own policies throughout the investigation, charging process, hearing and appeal.
The 53-page evidence document laying out Title IX training makes clear that hearing panelists are directed to treat the accuser and the accused differently.
Quite a difference, from the @IndianaUniv TIX training, between how panelists are supposed to question accusers ("trauma-informed") and accused students ("confronting" and "challenging" OK under some circumstances).
— KC Johnson (@kcjohnson9) January 4, 2019
On a page titled “Questioning the Complainant,” the public university directs panelists to be vigilant with their verbal and body language toward the accuser.
“Consider the use of a trauma-informed approach, if applicable,” it recommends. Taking “trauma” into consideration can mean dismissing inconsistencies in statements or changing accounts by the accuser; not asking for answers specific enough to be falsifiable; and ignoring “the absence of verbal or physical resistance,” under controversial theories of neurobiology that have been derided as “junk science.”
Panelists should be “mindful of your verbal and non-verbal behaviors,” let accusers “choose the terms that describe the incident and their impact” and “use their language/phrasing,” and postpone questions to give accusers more time to “answer completely.”
Accused students, by contrast, are not to be treated with a trauma-informed approach.
While providing the same suggestion about building trust with a party, the training does not tell panelists to be careful with their verbal and body language or use the same language and phrasing as the accused student.
It simply tells them to “be patient” and ask “broad” and “clarifying questions” to the accused student.
In a recommendation that has no parallel to practices for accusers, the training allows panelists to question the veracity of the accused student’s statements.
“Before confronting or challenging, consider the cost/benefit to the process,” it reads.
The training materials came out because the judge allowed limited discovery in the fast-moving case, according to Brooklyn College Prof. KC Johnson, who chronicles Title IX litigation.