Anyone familiar with the Scottsboro Boys or “To Kill a Mockingbird” will be familiar with the need for due process in sexual assault allegations. The often “he said/she said” nature of these cases make them especially susceptible to false allegations. Unfortunately, there is continuing pressure to reduce even basic due process protections and to prosecute unfounded cases.
In one recent Nebraska case, for example, prosecutors charged a man with sexual assault even though the accuser changed her story numerous times, destroyed evidence and made unsubstantiated allegations in two unrelated cases. The case was so weak a jury acquitted him in less than an hour.
In another recent Nebraska case, a man was prosecuted for sexual assault despite substantial uncertainty any assault had occurred and DNA evidence that showed there had been no sexual contact between the parties. He was also acquitted.
These are in addition to dozens of similar cases from elsewhere around the country. In addition, hundreds of lawsuits have been filed against colleges and universities alleging they violated the due process rights of accused students.
Why is this happening? Biased training is partly to blame. Two years ago, a lawsuit forced our state judicial branch to disclose training materials used to train our judges. Once disclosed, those materials showed our judges were given false information that misrepresented applicable research and failed to disclose dozens of studies that contradicted the presenter’s personal political agenda.
One form of biased training is based on “trauma-informed” practices. According to a recent article, “assertions about how trauma physiologically impedes the ability to resist or coherently remember (sexual) assault have greatly undermined defense against assault allegations. But science offers little support for these claims.” These practices are so suspect that a federal court recently found “trauma-informed” practices in college sexual misconduct investigations were plausible evidence of unlawful gender bias.
Unfortunately, a new Nebraska statute authorizes new “restorative justice training” that specifically includes “trauma-informed practices.” Our state judicial branch has also sponsored numerous programs over the last several years that are based on “trauma-informed practices.”
In addition, prosecutors and police are being pressured to abandon objective investigation techniques and to instead “start by believing,” be “victim-centered” or “believe survivors.” One result is cases are increasingly being brought that have no corroborating evidence to support the accuser’s allegations, something that rarely happens in other cases. These practices are unsound from an investigatory perspective and constitutionally suspect because they encourage fact-finders to abandon the constitutional presumption of innocence.
What can be done? New unbiased training must be provided to stop the flow of misinformation to our judges, police and prosecutors and to correct the misinformation that has already been communicated. This training should reject discredited theories like “trauma-informed” and “start by believing,” and instead teach objective and constitutionally-sound practices. The content of all training should be available to the public to ensure it is unbiased.
Shawna Thompson is a director of Nebraskans for Equal Justice and a longtime advocate for children and sexual assault victims. She lives in North Platte.