Trauma-informed practices produce worse investigations
The presumption of innocence might as well be a thing of the past in Massachusetts. More accurately, the Bay State appears to be returning to its roots of assuming the guilt of marginalized communities.
The Boston law firm Zalkind Duncan has a useful two-part rundown of state legislation that concerns campus sexual misconduct allegations. Several bills were heard by the Legislature’s Joint Committee on Education Tuesday.
They are as bad as you think.
H-1209 and S-764 would require “trauma-informed training” for investigators. This is akin to telling investigators “accusers are never wrong,” and it’s based on “science” that’s about as reliable as Puritan identification of witches. (Even the Trump administration still funds this abomination.)
Zalkind Duncan warns that such training can “instruct investigators to place the burden of proof on the responding student to disprove the complainant’s account, or encourage investigators to ignore or explain away evidence that may call into question a party’s credibility.” The University of Texas police force, for example, is instructed not to collect evidence that could help an accused student.
The firm recommends lawmakers focus on training investigators not to cause “unnecessary emotional distress or further trauma to either student,” but that they “remain fair and unbiased in seeking out relevant evidence.”
The bills also appear to mandate a single-investigator model in which one person, “often a university employee, makes all the decisions as judge, jury, and executioner.” Multiple courts have denounced this model when used by colleges, including in a ruling against Massachusetts’ own Brandeis University.
As is typical of clueless lawmakers, the bills don’t define key terms including dating violence and sexual assault, instead telling colleges to define them consistent with “applicable federal definitions.” This can mean everything from statutory law to court decisions to regulations and even “guidance documents,” including the Obama administration letters that ramped up the campus rape frenzy. Zalkind Duncan notes this makes the data-collection purpose of the law useless.
The Senate bill is better than the House bill on “confidential resources advisors” (providing them to both accusers and accused), but worse by including “non-sexual forms of harassment” when conducting the proposed mandatory “climate surveys.” It also tells colleges to consult with rape crisis centers and law enforcement, but not criminal defense lawyers or advocates for accused students.
The House bill includes “ambiguous and confusing” language on cross-examination that could conflict with not only court rulings but the pending Title IX regulation from the Department of Education, the firm noted. It would bar them from “directly” questioning each other during proceedings, suggesting their advisors can’t even do the questioning. (Hearing panels and single investigators often refuse to ask relevant questions to accusers posed by accused students.)
Transcript says you’re guilty for the duration of investigation
Another bill (S-747) would declare accused students guilty on their transcripts before a proceeding has concluded. It’s hard to imagine a worse single provision:
This bill would require colleges and universities to put a “prominent” notation on the transcript of a student accused of crimes of violence, which includes aggravated assault and both forcible and non-forcible sex offenses, as soon as a disciplinary process is started. That notation would be removed if the student was eventually found not responsible through the process.
This would be a major change from current practice, where a student’s disciplinary history is included in an educational record but not transcript. Because so many proceedings include dueling claims of sexual assault, both parties would likely have this “prominent” notation on their transcripts for “anywhere from four months to over a year,” the law firm says.
It “flies in the face of the presumption of innocence” guaranteed to students at public institutions under state law, and “could be open to a constitutional challenge” because the notation would “impede a student’s ability to continue his or her education or gain employment.”
Because not all accusers want draconian punishments on the students they accuse, it could also reducing reporting because of the “immediate negative impact on the person being reported,” Zalkind Duncan says.
Perhaps the dumbest provision of them all is found in H-1223. It would require sexual harassment training for everyone, every year, with this definition:
unwanted or offensive sexual behavior that has the purpose or effect of creating a hostile or stressful living, learning, or working environment
“Stressful.” Try to imagine today’s college students finding any interaction free of stress. They can’t even.
This bill also has the same problem as H-1209 and S-764: It requires “trainings and policies” to be in compliance with federal guidance.
Not only did the Obama administration’s guidance on sexual misconduct investigations not go through any rulemaking to make it legally binding, but it’s already been rescinded by the Trump administration. As the law firm notes, that’s why these “Dear Colleague” letters never went through public comment or oversight – “in theory, they are not legally binding.”
IMAGE: Daniel Mennerich/Flickr