Victim-Centered Investigations Undermine the Presumption of Innocence and Victimize the Innocent: Report of an Expert Panel
On October 4, 2016, dozens of panel presentations, commemorations, and other events were held across the United States and Canada in observance of Wrongful Conviction Day. The non-profit Center for Prosecutor Integrity convened an Expert Panel to probe the growing use of “victim-centered” investigations in the criminal justice and college campus settings.
The Expert Panel concluded that “victim-centered” investigations violate ethical requirements for impartial and honest investigations, are inconsistent with basic notions of fairness and justice, and give rise to wrongful convictions and determinations of guilt. The Expert Panel called for “victim-centered” investigations to be replaced by “justice-centered” approaches.
The teleconference session was moderated by Cynthia Garrett, Esq., a former civil litigation attorney who currently advocates for fairness in campus disciplinary proceedings. Following are summaries of the presentations:
What’s the Problem with Victim-Centered Investigations?
Presenter: Christopher Perry, Esq., worked as a criminal defense attorney for five years, and currently serves as a Program Director at the Center for Prosecutor Integrity.
Victim-centered investigations (VCIs) are commonly utilized in evaluating allegations of human trafficking, sexual assault, and domestic violence. VCIs ask investigators to begin with the assumption that all allegations are true, which undermines the presumption of innocence of the accused and increases the likelihood of a wrongful conviction.
Victim-centered investigations place detectives in a role-conflict in which they are expected to act as both an impartial fact-finder and counselor to the complainant. Victim-centered investigations also jeopardize the integrity of investigations by allowing the complainant to assume control of the investigative process. This would allow complainants to request that essential parts of a normal investigation, such as a rape kit or the questioning of certain witnesses, be omitted.
Law Enforcement Officers take oaths to uphold specific ethical canons. The canons call for collection of evidence in an impartial manner, an objective search for the truth, and production of honest/unbiased reports. VCI approached clearly jeopardize these ethical requirements. Respectful treatment of complainants is not incompatible with the pursuit of impartial, accurate, and honest investigations.
Lawmakers, criminal justice leaders, and college administrators should promote “justice-centered” policies to assure that investigators:
(a) Discharge their duties with objectivity and impartiality.
(b) Make reasonable efforts to contact all potential witnesses, in addition to those recommended by the complainant or accused student.
(c) Seek to gather and disclose both inculpatory and exculpatory evidence, and make all such evidence available to the complainant and the accused.
(d) Thoroughly document and/or videotape all communications with the complainant and accused, as well as with potential witnesses, evidence collected, and interviews conducted, which shall be made available to the complainant and accused prior to any institutional disciplinary hearing.
(e) Compile and evaluate evidence in an impartial manner before rendering an opinion.
(f) Not serve as victim advocate, prosecutor, adjudicator, or appellate adjudicator for the same case.
- SAVE: Victim-Centered Investigations: A ‘Near-Religious Teaching.’ http://www.saveservices.org/sexual-assault/investigations/
- Listing of investigator ethical codes: http://www.prosecutorintegrity.org/sa/investigations/
- Victor Zheng: I Was Falsely Accused of Rape: ‘Victim-Centered Investigations’ are a Travesty of Justice. April 20, 2016. http://dailycaller.com/2016/04/20/i-was-falsely-accused-of-rape-victim-centered-investigations-are-a-travesty-of-justice/
- Ashe Schow: ‘Listen and believe’ actually hurts rape victims in the long run. July 11, 2016. http://www.washingtonexaminer.com/listen-and-believe-actually-hurts-rape-victims-in-the-long-run/article/2596143
I Was a Victim of a ‘Victim-Centered’ Investigation
Presenter: Joseph Roberts was falsely accused and expelled from his former university without a hearing or procedural due process.
Mr. Roberts was just weeks away from graduation at Savannah State University when he was falsely accused of sexual harassment and expelled without a hearing. He contacted several college officials in an attempt to learn the specific nature of the allegation against him, and to clarify when he would receive a hearing. His inquiries remained unanswered and the expected hearing was never convened.
“Those weeks were some of the darkest moments of my life,” Mr. Roberts explained, detailing the feelings of disappointment, lack of self-worth, anger, and depression that haunted him. One Forum attendee asked, “What advice would you give to other students who have been falsely accused?” Roberts responded:
The first thing that I would suggest is to keep your head and stay in control of your emotions. You will feel frustrated, angry, confused, lonely, and helpless. Be sure to surround yourself with a network of people who love and understand who you are. These are the people who are vital in helping you to maintain your emotional health. Some of your closest friends and family members will have a difficult time believing your side of the story, but all is not lost. In the beginning, the internet will be your biggest ally. If you’re having trouble finding support in your real-life network, create a virtual network of students and advocates. There are organizations and forums (e.g., Stop Abusive and Violent Environments, Families Advocating for Campus Equality) that can be found online who may be able to help.
Being the victim of a false accusation feels like a crisis. The situation gets worse before it gets better; but things will get better. The progression of my recovery was: victim-survivor-advocate. For a while, I oscillated between “victim-survivor.” Just when I thought I was over it, something would remind me and I’d find myself experiencing the same dark emotions all over again. Certain things triggered me such as Facebook posts by friends who had graduated, the feeling that I was stuck in a dead-end job, seeing persons who were on campus when I was accused, and recounting my own experiences. Identify your triggers and avoid them until you arer emotionally prepared to face them.
The experience of being falsely accused can have a harmful impact on your sense of self-worth. Some of us don’t rebound. I’ve met several guys once, and then they disappear. For many, the support networks that exist now weren’t there before. Luckily, things are different now.
- Joseph Roberts: Vindication for a Student Suspended from Savannah State University. March 23, 2016. http://www.ifeminists.net/e107_plugins/content/content.php?content.1360
- Ashe Schow: ‘Victim-centered’ sex assault investigations designed to railroad accused. March 15, 2016. http://www.washingtonexaminer.com/victim-centered-sex-assault-investigations-designed-to-railroad-accused/article/2585854
- KC Johnson: USC and Investigatory Bias. Aug. 1, 2016. https://academicwonderland.com/2016/08/01/usc-and-investigatory-bias/
- Robby Soave: CU-Boulder Suspended Student for Rape, Before Interviewing Alleged Victims. Aug. 8, 2016. http://reason.com/blog/2016/08/08/uc-boulder-suspended-student-for-rape-be
The Psychological Effects on Persons Wrongfully Found Guilty of Sexual Misconduct
Presenter: Jerome Rogoff, MD, a forensic psychiatrist and psychoanalyst, worked as senior psychiatrist in a Massachusetts state prison, was a consultant to the federal government, and has testified in many wrongful conviction lawsuits.
Many wrongful convictions arise from the malfeasance of prosecutors. For prosecutors seeking political office, it is helpful to have a reputation as being “tough on crime” and to have achieved a large number of convictions. In this quest, prosecutors may ignore exculpatory evidence, even in cases where there is strong reason to believe the defendant is innocent. Dr. Rogoff noted seven such cases for which he had personal knowledge.
The use of victim-centered investigations is likely to yield a higher number of convictions. VCI proponents illogically refer to complainants as “victims,” even before a verdict has been rendered. VCI advocates assert that such investigational approaches are necessary to avoid “re-traumatizing” complainants, even though they are likely to undermine the fundamental integrity and accuracy of the investigational findings.
Persons who are falsely accused of heinous crimes suffer mentally and emotionally. They may experience depression, PTSD, or anxiety. Other symptoms include insomnia, withdrawal from society, flash-backs to the events, nightmares, and repressed memories. In some cases, falsely accused persons require long-term treatment.
Persons who have been falsely accused should resist the tendency to withdraw from society. Instead, they should contact organizations such as state chapters of the American Psychiatric Association to identify local therapists, and channel their emotions into productive pursuits.
- The Diagnostic and Statistical Manual of Mental Disorders (DSM5), American Psychiatric Association Publishing, 2013, Washington and London.
- Movie “Conviction,” starring Hilary Swank.
My Lawsuit to Stop Government Harassment
Presenter: Carolyn Martin is a certified criminal investigator; president, American Federal Contract Investigators Association; and board member, American Board of Certified Criminal Investigators.
In the military justice system, defense attorneys are usually required to base their legal theories and arguments on the evidence collected by an investigator working under the direction and control of the prosecutor. This may represent a conflict of interest for the investigator. Unfortunately, some investigators are known to conduct their investigations with a callous disregard for the rights of the accused.
Martin noted that she is the only full-time defense investigator within the Department of Defense. Possibly due to her reputation as a tenacious investigator, Martin stated she has been harassed by government agents. Martin detailed her experiences of having agents following her, accusing her of using false credentials, denying her the right to speak to her clients, and barring her from participating in a hearing as member of the defense team.
After being falsely charged with impersonating a federal agent, Martin filed a lawsuit in the District Court for Southern California. During these proceedings, the NCIS admitted to domestic spying against Ms. Martin and her family. The NCIS eventually settled the case with a $25,000 payment.
Martin concluded by noting that victim-centered approaches worsen the problem of investigative confirmation bias. The justice system isn’t broken; rather, it is the people who seek to prevent it from working who are the problem.
- Martin v. Naval Criminal Investigative Service, 2012. https://scholar.google.com/scholar_case?case=15373028870985055870&q=martin+v.+NCIS&hl=en&as_sdt=20000006&as_vis=1
- Rick Rogers. California Suit Against NCIS Agent, Marine Officer Moves Forward. August 11, 2011. http://defensetracker.com/web/california%E2%80%99s-women-suit-against-ncis-agent-marine-officer-moves-forward/
How to Botch a Criminal Investigation in Ten Easy Steps
Presenter: Claudia Whitman is the executive director of the National Capital Crime Assistance Network; has investigated numerous post-conviction innocence cases; and is the creator/trainer of Capital Defense Handbook for Defendants and Their Families.
Whitman described 10 ways that she has observed that investigators have mishandled criminal investigations:
- Failure to ensure that the prosecutor has turned over all exculpatory evidence and other relevant material, including information from a co-defendant’s trial. (Because the defense often has limited funds for investigation, if there is a co-defendant, the investigator uses information/evidence from the previous trial of that co-defendant and does no independent investigation pertinent to the person on trial.)
- Failure to use a team approach to analyze and brainstorm the case.
- Failure to communicate with the client, family, and their loved ones.
- Failure to obtain all pertinent records: police, medical, school, and counseling, which includes mitigation investigation. (A mitigation investigation uncovers the story of a defendant’s life, not just the information pertaining to the crime. A mitigation investigation identifies his or her life story, family structure, health, etc. Defense Initiated Victim Outreach, used primarily in death penalty cases, allows jurors to consider a different narrative than the typical “victim” and “monster” portrayals of the people involved in the aftermath of a violent crime.)
- Failure to interview all interested parties, including eyewitnesses, people who think they have information.
- Failure to make charts that compare initial statements with subsequent statements, and when appropriate, trial testimony.
- Failure to document all activities and investigational impressions and maintain records.
- Speaking to media representatives inappropriately.
- Holding a pre-conceived bias as to innocence or guilt; not separating fact from allegation; not following evidence.
- Misleading witnesses/client, family; making promises to witnesses for help; hidden recording or videotaping in jurisdictions where not legal.
- Larry Kaye. 51 Dirty Tricks Bad Guys Really Hate: Sneaky Tactics used by Police, Private Investigators and Bounty Hunters. 2014.
Investigator Bias Creates Liability Risk for Universities
Presenter: E. Everett Bartlett, PhD, president of the Center for Prosecutor Integrity, is a former university professor, risk management consultant, and regulatory advisor.
Over 100 lawsuits have been filed against universities by students accused of sexual assault. In 30 cases, judges have made rulings that were at least partly favorable to the accused student. In 18 out of the 30 lawsuits, the student alleged investigational improprieties. The nine types of improprieties are listed below, along with sample allegations:
1: Multiple/Conflicting Roles and Inadequate Qualifications of Investigator: Under the Special Examiner Process, a single individual was essentially vested with the powers of an investigator, prosecutor, judge, and jury. (John Doe v. Brandeis University, Page 69)
2: Undue Investigational Delays: College hired a lawyer who took approximately five months to complete her investigation. (Doe v. Middlebury College, Page 3)
3: Overt Bias/ Predetermination of Guilt: From the outset, the investigator abused her authority. Rather than proceeding in a fair and impartial manner, the investigator set out to find Ritter responsible for sexual misconduct. The investigator conducted the entire process in favor of the complainant and with a presumption of guilt placed on the plaintiff.” (Ritter v. Oklahoma City University, Page 5)
4: No Reasonable Basis for Initiating the Investigation: When a subsequent investigation was undertaken, all of the charges were revealed as complete and utter fabrications by a deranged Agnes Scott student with a known propensity for making false accusations. (Amanda Hartley v. Agnes Scott College, Page 6)
5: Improper Preliminary Actions: When asked if he needed a lawyer, the accused was warned that if he didn’t participate, the investigation would move forward without his input. (Sterrett v. Cowan, Pages 6 -7)
6: Accused Student Not Allowed to Contact Potential Witnesses to Testify on His Behalf: The university administrator who led the investigation into the charges prohibited the accused student from contacting any of the witnesses and instructed him that he should not contact other university students to testify on his behalf. (Jeremiah Marshall v. Indiana University, Page 2)
7: Biased/Inadequate Collection of Evidence: The investigators disregarded at least four witness statements that demonstrated that Doe was not exhibiting visible signs of intoxication during the time leading up to the intimate encounter with Prasad. (Vito Prasad v. Cornell University, Page 18)
8: Failure to Consider Relevant Evidence or Faulty Evaluation/Inferences from the Evidence: The complainant’s narrative of events and subsequent written statement contained inconsistencies, but the investigator did not consider the inconsistencies because he did not view the narrative as “evidence.” (John Doe v. Georgia Board of Regents, Page 10-11)
9: Improper Recordkeeping or Reporting: None of the communications with witnesses were recorded, and summaries were not verified by witnesses after they were written up. (Lewis McLeod v. Duke University, Page 15.)
- Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases. 2016. http://www.saveservices.org/wp-content/uploads/Sexual-Misconduct-Lawsuits-Report2.pdf
- Eugene Volokh: Court: George Mason University violated due process when expelling student for alleged BDSM-related sex assault. March 4, 2016. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/04/court-george-mason-university-violated-due-process-while-expelling-student-for-alleged-bdsm-related-sex-assault/?utm_term=.2cb16e11675e
- Jack Hunter: No Harassment, No Victim, No Investigation. Expelled Anyway. Aug. 8, 2016. http://www.saveservices.org/2016/08/no-harassment-no-victim-no-investigation-expelled-anyway/
- Ashe Schow: Evidence should be most important in sexual assault investigations. Aug. 15, 2016. http://www.washingtonexaminer.com/evidence-should-be-most-important-in-sexual-assault-investigations/article/2599361
The University of Texas Blueprint for Injustice
Presenter: Michael Conzachi is an Army veteran, retired homicide detective, and former police academy instructor from Southern California.
The University of Texas School of Social Work recently published a “Blueprint for Campus Police” based on the victim-centered investigational model. The Blueprint recommends that investigators presume the truthfulness of the accuser and the duplicity of the accused:
- “The victim’s trauma response may make them appear less credible due to fragmented or lost memories and their attempts to make sense of what happened. Whereas, the alleged perpetrator knows what happened and therefore, appears to make more sense, which can be mistaken for credibility.” (p. 97)
- “Victims often self-blame and feel bad about what happened, while alleged perpetrators often don’t feel badly about it, except for being caught.” (p. 97)
- “Studies have consistently shown that detecting deception is difficult, so officers may not realize when a perpetrator is lying.” (p. 97)
The Blueprint encourages investigators to anticipate possible defenses against allegation in order to find ways to refute them and skew their reports accordingly. This represents a severe conflict of interest to campus investigators who are required by Department of Education Office for Civil Rights’ directives to conduct investigations that are “impartial.”
Blueprint recommendations regarding the minimization of inconsistent statements and exculpatory information from investigational reports may represent a violation of Federal Law; specifically Title 18, United States Code, Section 1512, Tampering, Concealing, or Obstructing a Witness or Evidence.
- Michael Conzachi: The College Sexual Assault Investigative Process Now Compromised by University Police and May be in Violation of Federal Law, March 26, 2016. http://ncfm.org/2016/03/news/discrimination-news/discrimination-against-men-news/ncfm-adviser-michael-conzachi-he-college-sexual-assault-investigative-process-now-seems-to-be-compromised-by-university-police-and-may-be-in-violation-of-federal-law/
- College Fix: University of Texas tells its police to hide evidence that favors students accused of rape. March 14, 2016. http://www.thecollegefix.com/post/26614/
- Samantha Harris: University of Texas ‘Blueprint’ for Campus Police Raises Fairness Concerns. March 11, 2016. https://www.thefire.org/university-of-texas-blueprint-for-campus-police-raises-fairness-concerns/
- University of Texas-Austin School of Social Work: Blueprint for Campus Police. February, 2016. https://utexas.app.box.com/v/blueprintforcampuspolice