This presentation is part of the National Center for Campus Public Safety’s (NCCPS) free webinar series, Campus Public Safety Online. In this webinar, Jeffrey J. Nolan, J.D., a faculty member for the NCCPS Trauma-Informed Sexual Assault Investigation and Adjudication Institute and 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.

2. 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
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3. 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
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4. The National Center for Campus Public Safety
Title IX and Clery Act
Investigations
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5. 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
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6. 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
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7. 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
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8. 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
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9. 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/
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10. 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
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11. 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.
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12. 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.
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13. 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)
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14. 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
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15. 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
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16. 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
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17. 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
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18. 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
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19. 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”
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20. The National Center for Campus Public Safety
Potential Effects of Trauma
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21. 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
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22. 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
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23. 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
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24. 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
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25. 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
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26. The National Center for Campus Public Safety
Receiving Reports,
Interim Measures, and
Threat Assessment
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27. 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
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28. 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?
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29. 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
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30. 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
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31. 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
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32. 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
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33. 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.
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34. 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
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35. 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
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36. 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
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37. 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
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38. 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
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39. The National Center for Campus Public Safety
Fair, Trauma-Informed
Investigation
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40. 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
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41. 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
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42. 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?
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43. 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)?
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44. 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
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45. 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
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46. 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?”
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47. 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
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48. 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
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49. 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
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50. 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?
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51. 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
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52. 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
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53. 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
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54. 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
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55. 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
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56. 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
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57. 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
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58. 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
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59. 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
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60. 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
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61. 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
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62. 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
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63. 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
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64. 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
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65. 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?
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66. 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
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67. www.margolishealy.com
www.nccpsafety.org
info@nccpsafety.org
1.866.817.5817
www.bja.gov