This Title IX Bill Would Undermine Due Process Rights for New Jersey College Students
The "victim-centered" training required by S.B. 2469 would compromise the impartiality of Title IX investigations.
A bill introduced last month in the New Jersey Senate could threaten the due process rights of students who are accused of Title IX violations. S.B. 2469 would require that employees at public colleges and universities who are involved in adjudicating, receiving reports of, or providing services to victims of alleged sexual violence undergo a "victim-centered" training. This training would also be required for students employed as resident advisors, or dorm supervisors.
The bill, which has been referred to the Senate Higher Education Committee, would ensure "the compassionate and sensitive delivery of services in a nonjudgmental manner; ensures an understanding of how trauma affects victim behavior; maintains victim safety, privacy and, where possible, confidentiality; and recognizes that a victim is not responsible for the sexual assault." At face value, that seems like a solid policy requirement. People providing services to victims should know how to treat them with care and compassion.
However, some of those "providing services" to victims are also meant to be impartial investigators of serious allegations, such as university employees involved in adjudicating allegations of sexual assault. Giving "victim-centered" training to those employees raises the question of whether a victim-centered approach also allows for an impartial examination of the evidence and testimony for and against a student accused of sexual assault.
Students accused of Title IX violations already face low standards of evidence. If S.B. 2469 passes, every university employee involved in hearing a case would also be trained to see the accuser as more credible by default.
Such training requirements exist elsewhere in higher education. According to "Title IX and 'Trauma-Focused' Investigations: The Good, The Bad, and the Ugly," a 2019 paper published in the Journal of Applied Research in Memory and Cognition, these trainings often assert that a victim must be believed—even if their story is deeply flawed. In fact, they often argue that having a confusing or unclear story is a sign that a complainant is telling the truth—as such flaws in testimony are the result of trauma. As the authors write, "A particularly ugly feature of [this] training is that it specifically suggests that if memory reports of alleged victims fit the 'profile' of those expected from a trauma victim, this fit should serve as evidence that the report is true."
In a 2015 Harvard Law Review article, legal scholar Janet Halley examined Harvard's "victim-centered" training, writing that it "is 100% aimed to convince [employees] to believe complaints, precisely when they seem unreliable and incoherent." If Title IX investigators and decision makers are taught that every complainant is telling the truth—and that any inconsistencies are themselves signs of trauma—then any hearing is essentially a show trial. The accuser is telling the truth because they are the accuser, regardless of what the accused may say in response.
Requiring these trainings only makes sense if legislators believe that everyone accused of a Title IX offense is guilty—something which has been proven over and over to be untrue. The uncomfortable truth about Title IX investigations—and sexual assault investigations more broadly—is that there is rarely conclusive evidence against the accused, and some accusations are indeed false.
Sexual assault is a serious crime that often goes unpunished. However, we shouldn't respond to this unpleasant fact by attempting to lower the standard of evidence—or in this case, bias Title IX employees toward the complainant.
Title IX investigators make crucially important decisions about whether to find someone responsible for sexual assault and intimate partner violence. Training Title IX employees to see the complaining party as always truthful, as S.B. 2469 would require, also means training them to assume that the accused party is always guilty. That is not a just scheme, even if it guarantees that every actual victim receives justice.