September 21, 2019

TITLE IX UPDATE: Fake Claims of Rape Due to Trauma Under Scrutiny.

The big news in campus sexual misconduct hearings is that believers in trauma-informed adjudications are on the defensive. What that verbal mouthful means is that apparent weaknesses in a complainant’s case—inarticulateness, contradictions, lying, or being too “frozen’’ or fearful of testifying—must not be automatically taken as evidence that sexual trauma has occurred.

In recent years, the one-sided nature of “trauma-informed” training has formed a noticeable trend in the flood of lawsuits filed by accused students. In a lawsuit against Penn, the court cited the university’s trauma-informed training as a key reason why the complaint survived a motion to dismiss. During the Brown university bench trial, the decisive vote in the adjudication panel testified that she ignored exculpatory text messages because of the training she had received. Ole Miss’ trauma-informed training suggested that an accuser lying could be seen as a sign of the accused student’s guilt. And at Johnson & Wales, the university was so disinclined to make public the contents of its training that it refused a request by the accused student’s lawyer to see it before the hearing.

Amidst this legal backdrop came Emily Yoffe’s blockbuster article in the Atlantic. Published on September 2017, the piece reviewed the dubious science behind the trauma-informed training used at many schools. Yoffe’s conclusion: “The result is not only a system in which some men are wrongly accused and wrongly punished. It is a system vulnerable to substantial backlash. University professors and administrators should understand this. And they, of all people, should identify and call out junk science.”

A few weeks ago, in a remarkable statement, ATIXA, the Association of Title IX Administrators, an organization that generally defended the Obama administration’s accuser-friendly approach to Title IX adjudications, added to these concerns. In a seven-page statement, the organization acknowledged that “Emily Yoffe did not win many friends for her critical piece on the topic in The Atlantic in 2017, but ATIXA believes her points needed to be made.”

The ATIXA statement expressed support for the principle of investigators understanding trauma but worried that a one-sided approach permeates too many campus adjudications: “To assert that trauma cannot be faked is as flagrantly false a claim as asserting that trauma is proof of assault. Individuals can fake sleep disorders, nightmares, heightened arousal, trust issues, triggering, and more.”


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