Title IX and Trauma
October 24, 2019
The trauma of sexual assault may impact a survivor’s ability to accurately remember events, and a survivor should not be further traumatized by being pushed to remember events or questioned as to his/her credibility. This line of reasoning is an offshoot of what has been termed “trauma informed care,” and has become a hot button topic in the Title IX Offices of college campuses. The debate surrounding this topic prompted the Association of Title IX Administrators (ATIXA) to issue a statement in August of 2019.
Proponents of trauma informed care in a Title IX investigation setting argue that, from a scientific standpoint, trauma associated with sexual assault causes changes to the survivor’s brain. This may include changes to the prefrontal cortex (controls logical thinking), hippocampus (controls memory), and amygdala (controls emotions, survival instincts and memory). Memories of the assault may come back in bits and pieces, may be difficult to remember in linear order, and may cause irrational behaviors which the survivor cannot control. Critics say this is junk science and has no place in Title IX world. They argue that trauma informed care should not result in complainants being believed at all costs – even if they cannot remember, do not seem credible, or their stories change.
So what is a Title IX Investigator to do? While “can’t remember” creates evidentiary and credibility problems, an investigator should be sensitive to a survivor’s trauma, and can use a number of methods that will help bring out the survivor’s narrative while also minimizing the trauma of reliving the event. An interview space should feel welcoming and safe, and a “cross examining” aggressive style of questioning should be avoided in an interview setting. Both the complainant and respondent should be greeted with a smile and treated with empathy, patience, respect and dignity. Parties should be permitted to tell what happened without significant interruption during their first meeting, and you should hold as many questions as possible until they are finished. The meetings for the complainant and respondent may be quite lengthy, and the parties should be reminded that they are welcome to return at any time as they remember additional facts.
In addition, explain the process. Transparency is critical when conducting investigations. One of the most trauma informed practices an investigator can perform is to clearly and accurately describe the investigation process, the investigator’s role, and the potential outcomes for their situation. The parties may have to meet with many administrators and/or agencies, thus it is critical that they know who you are and why they are meeting with you. While it may be a more limited discussion during follow up meetings, your role should be explained at the beginning of each meeting as a reminder.
As a Title IX Investigator, trauma informed care should be a “tool in your toolkit” but needs to be also kept in perspective. For a more in-depth discussion on this topic, see The Law and Higher Ed Podcast, Episode 13.
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