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The National Center for Campus Public Safety
Why Campuses Should Conduct
Trauma-Informed Sexual Assault
Investigations

Je...
The National Center for Campus Public Safety
Agenda
•  Title IX and Clery Act Investigations
•  Potential Effects of Trauma...
The National Center for Campus Public Safety

Title IX and Clery Act

Investigations
4
The National Center for Campus Public Safety
Current Legal Environment
•  April, 2011 OCR Dear Colleague Letter
•  March, ...
The National Center for Campus Public Safety
Current Legal Environment
•  September, 2014 Not Alone resources on
Title IX ...
The National Center for Campus Public Safety
Title IX Language
•  Title IX of the Education Amendments of
1972 (Title IX),...
The National Center for Campus Public Safety
OCR Guidance
•  April 2011 OCR Dear Colleague Letter on
Sexual Violence: 
htt...
The National Center for Campus Public Safety
White House Task Force
Publications
• April 2014 White House Task Force Repor...
The National Center for Campus Public Safety
Sexual Harassment Definition
• Sexual harassment is unwelcome conduct of a sex...
The National Center for Campus Public Safety
Sexual Violence Definition
• Sexual violence is a form of sexual
harassment co...
The National Center for Campus Public Safety
Scope of Coverage
• Title IX protects students from sexual
harassment in an i...
The National Center for Campus Public Safety
Scope of Coverage
• In addition to student-on-student sexual
harassment, Titl...
The National Center for Campus Public Safety
Scope of Coverage
• Institutions may have obligation to respond to covered se...
The National Center for Campus Public Safety
Scope of Coverage
• Title IX protects third parties from sexual
harassment or...
The National Center for Campus Public Safety
Summary of Title IX Obligations
• When institution knows or reasonably should...
The National Center for Campus Public Safety
Summary of Title IX Obligations
• Institutions must investigate complaints
ad...
The National Center for Campus Public Safety
Violence Against Women
Reauthorization Act of 2013


• Amends HEA/Clery Act “...
The National Center for Campus Public Safety
Policy Requirements
• ASR must include statements that, e.g.:
– covered disci...
The National Center for Campus Public Safety
Potential Effects of Trauma
20
The National Center for Campus Public Safety
Effects of Sexual Assault on
Memory
• During sexual assault, brain detects a
t...
The National Center for Campus Public Safety
Potential Signs of Trauma
• Difficulty concentrating, disorganization
• Instabi...
The National Center for Campus Public Safety
“Counterintuitive” Behaviors
• May appear “normal” to others after an
assault...
The National Center for Campus Public Safety
“Counterintuitive” Behaviors
• May engage in consensual sexual or social
acti...
The National Center for Campus Public Safety
Impacts on Investigation
• There are no bright-line rules
• Withhold pre-judg...
The National Center for Campus Public Safety
Receiving Reports, 
Interim Measures, and
Threat Assessment
26
The National Center for Campus Public Safety
First Impressions
• A complainant’s first impression is
extremely important
• ...
The National Center for Campus Public Safety
Barriers to Reporting
• No one will believe me
• Everyone will find out if I r...
The National Center for Campus Public Safety
Encouraging Reporting
- Are your outreach efforts effective?
- Do investigation...
The National Center for Campus Public Safety
Initial Assessment
• First Questions:
– Safety of complainant/others
– Medica...
The National Center for Campus Public Safety
Initial Assessment
• Next steps determined by:
– Whether complainant requests...
The National Center for Campus Public Safety
Interim Measures- Title IX
- Allow complainant to avoid contact with
responde...
The National Center for Campus Public Safety
Interim Measures- Clery Act
• Interim suspension (if respondent
reasonably ap...
The National Center for Campus Public Safety
Notice of Rights and Options
• Under Clery/VAWA, institution’s ASR must state...
The National Center for Campus Public Safety
IPV, SA & Stalking / 

Threat Assessment Interaction
• May be Threat Assessme...
The National Center for Campus Public Safety
Need for Collaboration
• Title IX and VAWA disciplinary
investigations can in...
The National Center for Campus Public Safety
• Threat assessment investigations that
involve dating violence, domestic
vio...
The National Center for Campus Public Safety
• Failure to coordinate can lead to
compartmentalized information, disjointed...
The National Center for Campus Public Safety
Fair, Trauma-Informed
Investigation
39
The National Center for Campus Public Safety
Ensuring Fairness to All Parties
• Must be recognized that:
– Individual case...
The National Center for Campus Public Safety
Impacts on Investigation
• Again, there are no bright-line rules
• Withhold p...
The National Center for Campus Public Safety
Planning the Investigation
• Analyze the complaint
– What issues are implicat...
The National Center for Campus Public Safety
Planning the Investigation
• Outline the issues
• List the elements and facts...
The National Center for Campus Public Safety
Trauma-Informed Interviewing
• Places a premium on the creation of a
safe spa...
The National Center for Campus Public Safety
Interviewing
• Pay attention to how your actions and
questions could affect pa...
The National Center for Campus Public Safety
Interviewing
• Allow parties to tell account in their own
words first, before ...
The National Center for Campus Public Safety
Appropriate Questioning
•  Open-ended questions may yield better
information
...
The National Center for Campus Public Safety
Appropriate Questioning
•  Keep effects of trauma and issues related to IPV,
s...
The National Center for Campus Public Safety
Document Answers Clinically
•  Use sensitivity in soliciting information,
but...
The National Center for Campus Public Safety
Evidence of Consent?
•  What words or actions did complainant use to
convey c...
The National Center for Campus Public Safety
Interviewing the Complainant
•  Acknowledge that conversation will be
difficult...
The National Center for Campus Public Safety
Interviewing the Complainant
•  Focus on What Can be Remembered
•  Memories r...
The National Center for Campus Public Safety
Interviewing the Complainant
•  Goal:
– Who, what, where, when, why
– Establi...
The National Center for Campus Public Safety
Interviewing the Complainant
•  Relationship (if any) with respondent
•  The ...
The National Center for Campus Public Safety
Interviewing the Complainant
Again:
•  Trauma can impair implantation of memo...
The National Center for Campus Public Safety
Interviewing the Complainant
•  Due to effects of trauma, additional details
m...
The National Center for Campus Public Safety
Alcohol and Drug Issues 

•  Alcohol and drugs can interfere with
encoding of...
The National Center for Campus Public Safety
Interviewing the Respondent
•  Develop strategy
•  Be prepared
•  Have backgr...
The National Center for Campus Public Safety
Interviewing the Respondent
•  Goals:
– Who, what, where, when, why
– Establi...
The National Center for Campus Public Safety
Interviewing the Respondent
•  Anticipate denial of allegations
– Lay foundat...
The National Center for Campus Public Safety
Interviewing the Respondent
•  Questions re “consent” defense, if offered:
– W...
The National Center for Campus Public Safety
Interviewing Other Witnesses
•  Who, what, when, where, why
•  Establish chro...
The National Center for Campus Public Safety
Gathering Documents
•  From Complainant
•  From Respondent
•  From other witn...
The National Center for Campus Public Safety
Other Available Sources of
Evidence
•  Video surveillance
•  Pass card record...
The National Center for Campus Public Safety
Circle Back to Parties
•  Ask any questions you forgot to ask the
first time
•...
The National Center for Campus Public Safety
Summary
•  A trauma-informed approach should encourage
reporting and complain...
www.margolishealy.com
www.nccpsafety.org
info@nccpsafety.org
1.866.817.5817
www.bja.gov
Fairness, Accuracy, and Access: Why Colleges and Universities Should Conduct Trauma-Informed Sexual Assault Investigations...
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Fairness, Accuracy, and Access: Why Colleges and Universities Should Conduct Trauma-Informed Sexual Assault Investigations and Adjudications

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This presentation is part of the National Center for Campus Public Safety’s free webinar series, Campus Public Safety Online. In this webinar, Jeffrey J. Nolan, J.D., a faculty member for our Trauma-Informed Sexual Assault Investigation and Adjudication Institute and an attorney with Dinse Knapp McAndrew, discusses why campuses should conduct trauma-informed sexual assault investigations and adjudications. While a trauma-informed approach naturally promotes access for complainants by encouraging their participation, it also promotes accuracy by enabling investigators and decision-makers to ask appropriate questions and better understand evidence that may be affected by trauma. A more accurate understanding of evidence, such as interviews, in turn promotes fairness to all parties. Promising practices strongly suggest that a trauma-informed approach benefits complainants, respondents, and institutions of higher education.

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Fairness, Accuracy, and Access: Why Colleges and Universities Should Conduct Trauma-Informed Sexual Assault Investigations and Adjudications

  1. 1. The National Center for Campus Public Safety Why Campuses Should Conduct Trauma-Informed Sexual Assault Investigations Jeffrey J. Nolan, J.D. www.dinse.com June 21, 2016 2
  2. 2. The National Center for Campus Public Safety Agenda •  Title IX and Clery Act Investigations •  Potential Effects of Trauma •  Receiving Reports, Interim Measures and Threat Assessment •  Fair, Trauma-Informed Investigation •  Opportunities for Questions Throughout 3
  3. 3. The National Center for Campus Public Safety Title IX and Clery Act
 Investigations 4
  4. 4. The National Center for Campus Public Safety Current Legal Environment •  April, 2011 OCR Dear Colleague Letter •  March, 2014 VAWA Amendments to Clery •  April, 2014 OCR Questions and Answers •  April, 2014 White House Not Alone Report and resources 5
  5. 5. The National Center for Campus Public Safety Current Legal Environment •  September, 2014 Not Alone resources on Title IX Coordinator role and interim measures •  October, 2014 Clery regulations (effective July 1, 2015) •  April, 2015 OCR DCL re Title IX Coordinators 6
  6. 6. The National Center for Campus Public Safety Title IX Language •  Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., prohibits discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance 7
  7. 7. The National Center for Campus Public Safety OCR Guidance •  April 2011 OCR Dear Colleague Letter on Sexual Violence: http://www2.ed.gov/about/offices/list/ocr/letters/ colleague-201104.pdf •  April 2014 OCR Q&A on Title IX and Sexual Violence: http://www2.ed.gov/about/offices/list/ocr/docs/ qa-201404-title-ix.pdf 8
  8. 8. The National Center for Campus Public Safety White House Task Force Publications • April 2014 White House Task Force Report: Not Alone: https://www.notalone.gov/assets/report.pdf • April 2014 Sample Reporting/Confidentiality Policy, Sexual Misconduct Policy Checklist: https://www.notalone.gov/schools/ • September 2014 Statements re Role of Title IX Coordinator, Interim and Supportive Measures, and Definitions of Prohibited Conduct: https://www.notalone.gov/schools/ 9
  9. 9. The National Center for Campus Public Safety Sexual Harassment Definition • Sexual harassment is unwelcome conduct of a sexual nature: - includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, Student-to-student harassment - creates hostile environment if conduct is sufficiently severe or pervasive that it interferes with or limits a student’s ability to participate in or benefit from institution’s program - Schools should investigate all reports of unwelcome conduct of a sexual nature to determine if conduct is sufficiently severe or pervasive to create hostile environment 10
  10. 10. The National Center for Campus Public Safety Sexual Violence Definition • Sexual violence is a form of sexual harassment covered by Title IX. - Sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol - An individual also may be unable to give consent due to an intellectual or other disability - A number of different acts fall into the category of sexual violence, including rape, sexual assault, sexual battery, and sexual coercion. 11
  11. 11. The National Center for Campus Public Safety Scope of Coverage • Title IX protects students from sexual harassment in an institution’s education programs and activities, including: - All academic, educational, extracurricular, athletic, and other programs of the institution - On-campus, off-campus, on a school bus or shuttle, at a class or training program sponsored at another location, etc. 12
  12. 12. The National Center for Campus Public Safety Scope of Coverage • In addition to student-on-student sexual harassment, Title IX prohibits: – Student-on-employee sexual harassment, – Employee-on-employee sexual harassment • (Title VII standards are applied in practice), and – Employee-on-student sexual harassment (see 2001 Revised Sexual Harassment Guidance) 13
  13. 13. The National Center for Campus Public Safety Scope of Coverage • Institutions may have obligation to respond to covered sexual harassment that initially occurred off campus and outside institution’s education program or activity - If student files a complaint re off-campus conduct, institution “must process the complaint in accordance with its established procedures.” - Investigation may demonstrate that misconduct started or continued on campus - If there are continuing effects on campus of off-campus sexual harassment that are creating or contributing to hostile environment (e.g., taunting/harassment by alleged perpetrator or friends), institution must address hostile environment the same way it would address hostile environment created by on- campus sexual harassment 14
  14. 14. The National Center for Campus Public Safety Scope of Coverage • Title IX protects third parties from sexual harassment or violence in an institution’s education programs and activities - E.g.: Title IX protects a high school student participating in a college’s recruitment program, a visiting student athlete, and a visitor in an institution’s on-campus residence hall • Title IX protects students from sexual harassment by institutional employees (faculty/staff), other students, or third parties 15
  15. 15. The National Center for Campus Public Safety Summary of Title IX Obligations • When institution knows or reasonably should know of possible sexual harassment, it must take immediate and appropriate steps to investigate or otherwise determine what occurred. If investigation reveals that sexual harassment created hostile environment, Title IX requires institution to take prompt and effective steps reasonably calculated to: - End sexual harassment and eliminate hostile environment; - Prevent its recurrence; and - As appropriate, remedy its effects. • Institution should not wait until hostile environment has been created to take steps to protect its students 16
  16. 16. The National Center for Campus Public Safety Summary of Title IX Obligations • Institutions must investigate complaints adequately, reliably, and impartially • Institutions must adopt and publish grievance procedures that provide for a prompt and equitable resolution of complaints • Institutions should undertake education and prevention efforts aimed at students 17
  17. 17. The National Center for Campus Public Safety Violence Against Women Reauthorization Act of 2013
 • Amends HEA/Clery Act “to improve education and prevention related to campus sexual violence, domestic violence, dating violence, and stalking” • VAWA comes to campus/Title IX meets Clery 18
  18. 18. The National Center for Campus Public Safety Policy Requirements • ASR must include statements that, e.g.: – covered disciplinary proceedings will provide a prompt, fair and impartial investigation and resolution – such proceedings will be conducted by officials who receive annual training on issues related to domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that “protects the safety of victims and promotes accountability” 19
  19. 19. The National Center for Campus Public Safety Potential Effects of Trauma 20
  20. 20. The National Center for Campus Public Safety Effects of Sexual Assault on Memory • During sexual assault, brain detects a threat to survival • Body produces hormones that affect regions of brain where memories are encoded • Memory of sexual assault is often fragmented and impaired due to changes in brain chemistry • Recall may be partial and asynchronous 21
  21. 21. The National Center for Campus Public Safety Potential Signs of Trauma • Difficulty concentrating, disorganization • Instability, anger, temper, flat affect • Shame, sadness • Reluctance, ambivalence regarding discipline process • Health decline • Difficulty sleeping • Destructive coping behaviors • Disassociation/confusion • Intrusive thoughts, nightmares, flashbacks 22
  22. 22. The National Center for Campus Public Safety “Counterintuitive” Behaviors • May appear “normal” to others after an assault • May behave “normally” around other party while deciding what action to take • May even seek contact with other party to convince self it didn’t happen or get an explanation or apology • May delay reporting, if report at all 23
  23. 23. The National Center for Campus Public Safety “Counterintuitive” Behaviors • May engage in consensual sexual or social activities after assault • May engage in apparently normal texting and other communications after assault • May not cease all contact when first becomes concerned about stalking behavior • May not leave or discontinue all contact with reportedly abusive person immediately 24
  24. 24. The National Center for Campus Public Safety Impacts on Investigation • There are no bright-line rules • Withhold pre-judgment: The parties may not act as you expect them to • Be aware of your own biases as well as those of the complainant, respondent and witnesses • Let the available facts, not unfair victim- blaming or societal/personal biases, guide your investigation 25
  25. 25. The National Center for Campus Public Safety Receiving Reports, Interim Measures, and Threat Assessment 26
  26. 26. The National Center for Campus Public Safety First Impressions • A complainant’s first impression is extremely important • Inappropriate comments upon first report or during investigation can turn a complainant away from the process, which: – Deprives the complainant of access to resources and support, and – May deprive institution of ability to respond effectively 27
  27. 27. The National Center for Campus Public Safety Barriers to Reporting • No one will believe me • Everyone will find out if I report • Everyone will blame me • I was so drunk …it is my fault • I made the first move and then changed my mind • Respondent is in my group of friends; no one will believe respondent did this • I don’t want to get respondent kicked out of school • I will be socially ostracized • What if this gets in the media? • Will the investigation make things worse? 28
  28. 28. The National Center for Campus Public Safety Encouraging Reporting - Are your outreach efforts effective? - Do investigation/adjudication policies have a chilling effect on reporting of SA/IPV/Stalking? - Survey and analyze that issue, and make changes as appropriate - Amnesty- OCR recommends that institutions inform students: ü primary concern is student safety ü any other rules violations will be addressed separately from the sexual violence allegation, and ü use of alcohol or drugs never makes the complainant at fault for sexual violence 29
  29. 29. The National Center for Campus Public Safety Initial Assessment • First Questions: – Safety of complainant/others – Medical treatment of injuries – Emotional wellbeing/counseling – Preservation of evidence – Possible interim measures – Right to notify (or decline to notify) law enforcement if conduct is criminal in nature 30
  30. 30. The National Center for Campus Public Safety Initial Assessment • Next steps determined by: – Whether complainant requests confidentiality or that investigation not be pursued – Whether complainant wishes to pursue investigation and adjudication process – Whether institution must proceed regardless of complainant’s wishes to promote campus safety – Whether law enforcement fact gathering requires temporary delay in fact gathering by institution 31
  31. 31. The National Center for Campus Public Safety Interim Measures- Title IX - Allow complainant to avoid contact with respondent (change academic, extracurricular activities and living, transportation, dining and working situation) - Offer interim measures and support services, and increase monitoring, etc., even if institution can respect complainant’s request for confidentiality - In general, when taking interim measures, institutions should minimize the burden on the complainant 32
  32. 32. The National Center for Campus Public Safety Interim Measures- Clery Act • Interim suspension (if respondent reasonably appears to pose a risk of danger, such as stalking, further violence, retaliation) • Assisting complainant to change academic, residential, transportation and working situations • Notify complainant of rights & institution’s responsibilities re: orders of protection, no contact orders, restraining orders, etc. 33
  33. 33. The National Center for Campus Public Safety Notice of Rights and Options • Under Clery/VAWA, institution’s ASR must state that complainant will receive written notice of rights and options regarding: – Victims’ option to: (a) notify law enforcement, including campus and local police; (b) be assisted by campus authorities in notifying law enforcement; and (c) decline to notify law enforcement – Victims’ rights and institutional responsibilities regarding judicial no-contact, restraining and protecting orders – Other information specified in regulations • Emphasizing choice and agency is consistent with trauma-informed approach 34
  34. 34. The National Center for Campus Public Safety IPV, SA & Stalking / 
 Threat Assessment Interaction • May be Threat Assessment and Management Team (“TAM”) overlap in DV, DV, SA & stalking cases • TAM team can be valuable resource • Institutions should avoid a silo mentality • Institutions should report to and utilize TAM team as necessary in conjunction with disciplinary processes 35
  35. 35. The National Center for Campus Public Safety Need for Collaboration • Title IX and VAWA disciplinary investigations can involve ongoing safety concerns: – To complainant(s) – To others on campus – To other campuses – To university personnel
 • These investigations and decision-making about interim measures, no contact orders, etc. can benefit from input from a threat assessment team 36
  36. 36. The National Center for Campus Public Safety • Threat assessment investigations that involve dating violence, domestic violence, sexual assault, and/or stalking should involve: – Trauma-informed interviewing – Referral to Title IX coordinator – Parallel investigations • These TAM investigations can benefit from expertise of Title IX investigators and others Need for Collaboration 37
  37. 37. The National Center for Campus Public Safety • Failure to coordinate can lead to compartmentalized information, disjointed safety or intervention efforts
 • Lack of coordination can also result in multiple unnecessary contacts with complainant to obtain the same information
 • Coordinated efforts can yield enhanced information-sharing and integrated safety efforts Need for Collaboration 38
  38. 38. The National Center for Campus Public Safety Fair, Trauma-Informed Investigation 39
  39. 39. The National Center for Campus Public Safety Ensuring Fairness to All Parties • Must be recognized that: – Individual cases are not about statistics – Decision in every case must be based on preponderance of evidence presented – Cannot fill in evidentiary gaps with statistics, personal beliefs or information about trauma – Process must be fair and impartial to each party – Institution may proceed without active involvement of alleged victim; base conclusions on impartial view of evidence presented 40
  40. 40. The National Center for Campus Public Safety Impacts on Investigation • Again, there are no bright-line rules • Withhold pre-judgment: The parties may not act as you expect them to • Be aware of your own biases as well as those of the complainant, respondent and witnesses • Let the available facts, not unfair victim- blaming or societal/personal biases, guide your investigation 41
  41. 41. The National Center for Campus Public Safety Planning the Investigation • Analyze the complaint – What issues are implicated? – Any concerns requiring input from legal counsel? • Are any interim measures in place and how might they affect investigation? – No Contact Orders for both parties are commonplace; should be given no weight – Exclusion of respondent from campus is interim precaution; should be given no weight • Are potential retaliation issues present? • Is threat assessment being conducted, and if so, how might that affect the investigation? 42
  42. 42. The National Center for Campus Public Safety Planning the Investigation • Outline the issues • List the elements and facts you will need to establish • Identify the potential witnesses (parties, first responders, friends, witnesses, etc.) • Are policies other than IPV, SA, Stalking policies implicated (e.g., general violence, sexual harassment policies)? 43
  43. 43. The National Center for Campus Public Safety Trauma-Informed Interviewing • Places a premium on the creation of a safe space in order to build trust –Compassionate, understanding, listening –Open-ended questions • Understands the limits of memory and traumatic memory 44
  44. 44. The National Center for Campus Public Safety Interviewing • Pay attention to how your actions and questions could affect parties • Document interview carefully in a manner that allows you to maintain focus, attention on sensitive matters being discussed • Don’t allow distractions to imply lack of sensitivity, respect 45
  45. 45. The National Center for Campus Public Safety Interviewing • Allow parties to tell account in their own words first, before going back and asking questions • Try not to imply judgment with questions – Not: “Why did you go to the respondent’s room?” “Why didn’t you report this right away?” • Ask open-ended questions initially and ask for more details as the interview progresses – “What happened next?” “Who else was there?” 46
  46. 46. The National Center for Campus Public Safety Appropriate Questioning •  Open-ended questions may yield better information – E.g.: “what do you remember about ____?” – Not: “start at beginning and tell us everything that happened” •  Prior sexual activity between parties may be relevant •  Complainant’s prior sexual or dating activity with others is NOT relevant 47
  47. 47. The National Center for Campus Public Safety Appropriate Questioning •  Keep effects of trauma and issues related to IPV, sexual assault and stalking in mind when framing questions •  Do not engage in “victim-blaming” •  Do not automatically assume any party is not credible just because memory, behavioral features (as discussed earlier) are present •  But: do not automatically assume policies were violated just because trauma may be present -- the decision must be based on preponderance of the evidence presented •  Seek clarification of inconsistencies to extent possible 48
  48. 48. The National Center for Campus Public Safety Document Answers Clinically •  Use sensitivity in soliciting information, but recognize you must document details of sexual contact in explicit, clinical terms •  In documentation, avoid consent language, such as: – Complainant “performed” sexual acts – “sexual intercourse” – “oral sex” •  Use quotes if witnesses use slang or euphemisms 49
  49. 49. The National Center for Campus Public Safety Evidence of Consent? •  What words or actions did complainant use to convey consent/non-consent? –  Must examine sexual contacts, acts in detail •  Was complainant capable of consenting ? (Asleep? Passed out?) •  [Ask the respondent] What did complainant say to you and/ or what actions did they take to show consent? •  If applicable, what role, if any, did respondent play in complainant’s intoxication/ incapacitation? 50
  50. 50. The National Center for Campus Public Safety Interviewing the Complainant •  Acknowledge that conversation will be difficult •  Preface rationale for asking questions about, e.g.: – Motivations, choices, clothes – Use of drugs/alcohol – Inconsistencies •  The point: you are not “victim blaming”- you are gathering necessary details without pre-judgment 51
  51. 51. The National Center for Campus Public Safety Interviewing the Complainant •  Focus on What Can be Remembered •  Memories related to senses of smell, hearing, touch, taste, sight may be better formed due to effects of trauma on memory •  Experience, thought process during event •  If fear motivated acquiescence without consent, specifically why afraid? •  Recollection of details may improve over time and through follow-up interviews 52
  52. 52. The National Center for Campus Public Safety Interviewing the Complainant •  Goal: – Who, what, where, when, why – Establish chronology, even if complainant dose not recall all events chronologically – Identify other witnesses/evidence •  Explain your neutral role •  Emphasize that institution wants to hear about any retaliation concerns 53
  53. 53. The National Center for Campus Public Safety Interviewing the Complainant •  Relationship (if any) with respondent •  The incident (including lead up, detailed alcohol/drug information) •  Details of sexual contact •  Description of force/consent (or lack of) •  Behavior after incident •  Decision to report 54
  54. 54. The National Center for Campus Public Safety Interviewing the Complainant Again: •  Trauma can impair implantation of memory •  Complainant may remember some details but not others •  Complainant may not be able to remember events in chronological order 55
  55. 55. The National Center for Campus Public Safety Interviewing the Complainant •  Due to effects of trauma, additional details may be remembered over time •  Recollection is a process •  Make sure complainant knows that if they recall additional details, they can and should contact investigator •  Let complainant know that investigator may be back in touch after interviewing others 56
  56. 56. The National Center for Campus Public Safety Alcohol and Drug Issues •  Alcohol and drugs can interfere with encoding of memory •  To determine intoxication vs. incapacitation issues, investigators need to seek detailed information about: – Alcohol/drug consumption – Food/water consumption – Tolerance levels – Observations of parties by others, if possible 57
  57. 57. The National Center for Campus Public Safety Interviewing the Respondent •  Develop strategy •  Be prepared •  Have background in mind if information is available •  Review all available evidence in advance, and plan how to use it in questioning 58
  58. 58. The National Center for Campus Public Safety Interviewing the Respondent •  Goals: – Who, what, where, when, why – Establish chronology – Identify other witnesses/evidence •  Explain your neutral role •  Emphasize: no conclusions reached yet •  Emphasize that institution strictly prohibits retaliation, regardless of the merits of the complaint 59
  59. 59. The National Center for Campus Public Safety Interviewing the Respondent •  Anticipate denial of allegations – Lay foundation first: •  Issues with complainant in past? •  Reason they would fabricate this? •  What if other witnesses corroborate complainant’s story? – Be respectful but persistent – Be patient to get answers to tough questions – Don’t be afraid to leave question pending for a while 60
  60. 60. The National Center for Campus Public Safety Interviewing the Respondent •  Questions re “consent” defense, if offered: – Was complainant upset during or following event? – Why did you apologize? – Has complainant’s behavior toward you or others changed? •  Have complainant’s recollection well in mind and compare and contrast through questioning •  Seek explanations for inconsistencies 61
  61. 61. The National Center for Campus Public Safety Interviewing Other Witnesses •  Who, what, when, where, why •  Establish chronology •  Corroboration is key •  Anyone else you should talk to? •  Emphasize importance of confidentiality •  Emphasize importance of no retaliation 62
  62. 62. The National Center for Campus Public Safety Gathering Documents •  From Complainant •  From Respondent •  From other witnesses •  From all reasonable sources, including email, text messages, & other social media 63
  63. 63. The National Center for Campus Public Safety Other Available Sources of Evidence •  Video surveillance •  Pass card records •  Other security system evidence •  Phones/computers •  Clothing •  Medical records •  Restaurant/bar receipts •  Photos, videos 64
  64. 64. The National Center for Campus Public Safety Circle Back to Parties •  Ask any questions you forgot to ask the first time •  Ask questions that have arisen from investigation •  Ask for explanations of any inconsistent evidence that has emerged •  Has anything relevant happened since first interviewed? •  Remembered anything would like to add? 65
  65. 65. The National Center for Campus Public Safety Summary •  A trauma-informed approach should encourage reporting and complainant participation •  Employed properly, a trauma-informed approach does not “favor” complainants or disadvantage respondents •  A trauma-informed approach recognizes and accounts for societal and personal biases and “levels the playing field”, therefore fairly promoting accuracy •  Accuracy and fairness is important to all parties and institution 66
  66. 66. www.margolishealy.com www.nccpsafety.org info@nccpsafety.org 1.866.817.5817 www.bja.gov

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