“Victim-Centered” Justice Is a Threat to Due Process

Last update January 23, 2021

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Wendy McElroy January 23, 2021 SNB & CHF

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Summary:
“Trauma-informed justice” has percolated in academia and activism for decades. It is now knocking on the door of local police departments to demand changes that could upend the basics of how people relate to law enforcement. The approach converts the police into social workers or therapists and erases the due process upon which traditional Western justice hinges. It also increases the odds of wrongful convictions. Trauma-informed justice—sometimes called “victim-centered” justice—involves an interview methodology in which the police prioritize empathy for an accuser who is automatically considered to be a victim. Rooted in trauma-informed feminist therapy of the 1960s, the methodology is especially favored for allegations of sexual abuse, such as domestic

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“T rauma-informed justice” has percolated in academia and activism for decades. It is now knocking on the door of local police departments to demand changes that could upend the basics of how people relate to law enforcement. The approach converts the police into social workers or therapists and erases the due process upon which traditional Western justice hinges. It also increases the odds of wrongful convictions.

Trauma-informed justice—sometimes called “victim-centered” justice—involves an interview methodology in which the police prioritize empathy for an accuser who is automatically considered to be a victim. Rooted in trauma-informed feminist therapy of the 1960s, the methodology is especially favored for allegations of sexual abuse, such as domestic violence, where the accusers who come forward are overwhelmingly female. The methodology was refined by Russell Strand, US Military Police School, who offered the forensic experiential trauma Interview (FETI) as a way to question presumed victims without making them relive an assault.

According to trauma-informed trainers, the police should conduct investigations according to three broad principles.

The accuser is automatically assumed to be a victim even before any verification process occurs; the accused is automatically assumed to be guilty based on nothing more than an allegation. This dynamic reflects a core belief of the #MeToo movement: “Believe All Women.” The leading proponent of the trauma-informed approach is the End Violence against Women International (EVAWI) group, which argues that “believing” accusers “is the starting point for a fair and thorough investigation.” If EVAWI is taken literally, however, further investigation seems to be unnecessary. An accusation is proof of guilt and is grounds for conviction. Why investigate?
Contradictions, memory gaps, and inconsistencies in an accuser’s testimony are symptoms of deep trauma and should not be seen as disprobative. A much-quoted guide to FETI states, “Trauma victims often omit, exaggerate, or make up information when trying to make sense of what happened to them or to fill gaps in memory.” The true flaw in the process is said to be the police department’s approach, which depends on what is called “peripheral information”—for example, a suspect’s description and the time or place of an alleged attack. Instead, the police should focus on eliciting nonlinear information from the accuser by establishing trust and interpreting her memories.
Factors that cast doubt on the allegation, such as an accuser’s history of false allegations or drug use, are not to be considered. This creates an enormous problem if the case goes to trial, of course. The Arizona Governor’s Commission to Prevent Violence against Women issued a letter to Arizona’s criminal justice agencies to explain, “In cases that proceed to trial, defense counsel likely could impugn investigators and claim that alternative versions of the crime were ignored and/or errors were made during the investigation as a result of confirmation bias created by the ‘belief’ element of the Start By Believing campaign.”

Trauma-informed advocates abandon the ethical code of conduct spelled out by the International Association of Chiefs of Police. Article 10, Presentation of Evidence, states, “The law enforcement officer shall be concerned equally in the prosecution of the wrong-doer and the defense of the innocent. He shall ascertain what constitutes evidence and shall present such evidence impartially and without malice.” By this standard, everyone and their testimonies are to be treated equally.

FETI destroys the due process upon which Western criminal justice rests. The central principle of due process: an accused is innocent until proven guilty either by a standard of “clear and convincing evidence” or “beyond a reasonable doubt.” There must be proof before there is guilt and, as a matter of logic if not of justice, the accuser bears the burden of proof, because she is the one making an affirmative statement. Start by Believing inverts this principle and logic, eliminating Western justice in the process.

Unfortunately, the trauma-informed approach is gaining momentum, with training courses for law enforcement seeming to spring up everywhere. Most are held at universities where trauma-informed procedures have dominated Title IX investigations for the last decade; these investigations address allegations of sexual misconduct on campus and a “believe the women” ideology dominates. The spread of FETI is yet another instance of social justice policies spilling from campuses out onto Main Street.

Other factors contribute to the spread. A revolution in how law enforcement is perceived has occurred, with “Defund the Police!” being one of the loudest aspects. A righteous indignation at police brutality and immunity is fueling a rebellion against the status quo of law enforcement. Trauma-informed justice also grows because it is still grassroots; activists go directly to law enforcement agencies. This makes it largely invisible in the media and to the public, from which it encounters little resistance.

This needs to change. Trauma-informed justice must be opposed on three grounds: ethically, on the science, and on practicality.

The ethical case against trauma-informed justice has been made already: it introduces systemic bias into what should be an evidence-based, honest, and impartial process; it embeds unequal treatment under the law; it increases the likelihood of false convictions. It is unfair.

The increased likelihood of false convictions needs to be stressed, because the trauma and tragedy of false convictions is often ignored or diminished. This will proliferate because trauma-informed politics encourages law enforcement to become de facto advocates for an accuser and presume the guilt of an accused.

A commonly stated goal of the trauma-informed approach is to secure a “successful prosecution,” which refers to securing a conviction but makes no comment on whether the defendant may be innocent. After all, Start by Believing declares all accuseds to be immediately and automatically guilty, which obviates the need to discuss their possible innocence. When the police preemptively decide that an accused is guilty, research shows what common sense suspects. The police look for supporting evidence and tend to dismiss counterinformation due to confirmation bias. Again, wrongful convictions become more likely, especially since EVAWI instructs investigators on how to assist prosecutors in countering “potential defense strategies.”

Another reason trauma-informed justice gains ground: law enforcement is asked to listen “to the science.” The science of traumatized people remembering events in a disjointed or inconsistent manner is presented as “settled.” This is not true. Unbiased studies contradict the claims of trauma-informed justice. Daniel Reisberg’s “Emotion’s (Varied) Impact on Memory for Sexual Misconduct” found, for example: “These data suggest that traumatic events are likely to be well remembered.” At bare minimum, the nature of traumatized memories is a matter for vigorous debate, and untested ideology-based theories should not be fixed into policy.

The current standard police procedure is called the Reid method. It has three steps: factual analysis, interviewing, and interrogation. The factual analysis eliminates suspects and develops leads. Interviewing elicits investigative and behavioral information through nonaccusatory dialogue with accusers, suspects, and witnesses; the interview has nine well-defined stages. Interrogation involves subjecting a confirmed suspect to accusations in which the investigator claims to know the person is guilty and angles for a confession. Police investigations may be imperfect, but they have been tested and streamlined by time, with legal challenges providing protections to those being questioned.

In its “Report on the Use of the Forensic Experiential Trauma Interview (FETI) Technique” (2015), the United States Air Force Office of Special Investigations summarized its reluctance to replace an established protocol with trauma-informed techniques.

We believe it would be inappropriate and irresponsible to discontinue the use of a robust, well-studied, effective, and empirically-validated interviewing method that is supported by the latest scientific research (the Cognitive Interview), in favor of an interviewing method that is loosely-constructed, is based on flawed science, makes unfounded claims about its effectiveness, and has never once been tested, studied, researched or validated.

Social workers and therapists may need to start by believing the person they seek to heal. But the police are not mental health workers; they deal in cold, hard facts that have no gender or race. Investigators need to discern what is true or false about a situation rather than respond emotionally to it. In the process, some officers make mistakes and some act with malice; officers are human beings with all the flaws of shared humanity. The incompetence or malfeasance of individuals must be remedied, but neither one is an indictment of the principles of Western justice. Turning accusations into convictions only makes prisoners of innocent people.