The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Phoenix New Times (Ray Stern) reports on this November letter by Debbie Moak, director of the Arizona Governor's Office of Youth, Faith and Family (some paragraph breaks added):
In November of 2014, the Governor's Commission to Prevent Violence Against Women adopted the Start By Believing campaign offered by End Violence Against Women International and began encouraging communities and organizations around the State of Arizona to participate. Start By Believing is a public awareness campaign focused on cultivating an orientation of belief when responding to sexual assault. This approach encourages friends, loved ones, or law enforcement to treat victims with compassion and respect and communicate a message of belief and understanding.
This approach creates an atmosphere in which victims feel more comfortable and willing to report an assault and provide law enforcement the information necessary to investigate the case. Appropriate response to sexual assault is critical; a negative response can worsen the trauma and foster an environment where perpetrators face zero consequences for their crimes.
Recently, several serious concerns have surfaced regarding the Start By Believing campaign and whether it is appropriate for criminal justice agencies and others involved in the criminal justice process to participate. The concern is that the interjection of "belief" into the law enforcement investigation creates the possibility of real or perceived confirmation bias. Confirmation bias is the tendency to search for, interpret, favor, and recall information in a way that confirms one's preexisting beliefs or hypotheses, while giving disproportionately less consideration to alternative possibilities.
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. Additionally, many detectives have not been adequately trained to effectively defend the Start By Believing campaign on the witness stand. During a recent case in Iowa, a detective testified that the campaign required him to believe the victim, "no matter what". The prosecutor in the case explained, "… the [Start By Believing] verbiage is what's killing everybody in court".
Recognizing the veracity of these concerns, the Governor's Office of Youth, Faith and Family and the Governor's Commission to Prevent Violence Against Women convened a Start By Believing Workgroup (Workgroup) to examine these differing viewpoints and work collaboratively to develop overarching guidance for the State. The Workgroup was comprised of a broad array of stakeholders that included county attorneys, prosecutors, law enforcement, forensic nurses, a defense attorney, advocacy centers, policy makers, and advocates. Based on a series of meetings, the Workgroup recommends [that, among other things]:
The Start By Believing campaign is most appropriate for non-criminal justice agencies and others not involved in the criminal justice system. While investigations and interviews with victims should always be done in a respectful and trauma-informed manner, law enforcement agencies, and other agencies co-located in advocacy centers, are strongly cautioned against adopting Start By Believing. Should a law enforcement agency have interest in adopting Start By Believing, we strongly encourage that agency to consult and work in close collaboration with their county attorney.
The discussions should include weighing the high possibility of challenges during criminal legal proceedings based on actual or perceived confirmation bias. If the county attorney has even the slightest concern with the potential legal challenges associated with the Start By Believing campaign, it should not be adopted by law enforcement within that jurisdiction….
Research has demonstrated that victims of sexual assault who experience a supportive and compassionate response, regardless of the criminal justice system outcome, have lower rates of post-traumatic stress than victims who experience secondary trauma in the form of disbelief and blame. Regardless of the strategy that an agency adopts, it is important that victims are treated with fairness, respect, and dignity and allegations are investigated in a fair, balanced, and thorough manner.
This puts me in mind of Kipling's line from "Sons of Martha":
To these from birth is Belief forbidden; from these till death is Relief afar.
They are concerned with matters hidden—under the earthline their altars are.
He is speaking of infrastructure engineers; but, setting aside the altars under earthline, the same sentiment can apply to many other jobs, including journalists, scholars, lawyers and investigators.