Transcripts For CSPAN2 Sexual Assault On Campus 20170907 : v

Problem of Sexual Assault on campuses. Panelists include a lawyer for a number of accused students. Attorneys representing colleges, and Michelle Obamas former chief of staff was on the Obama White House task force looking into campus Sexual Assaults this was part of the american bar Associations Annual meeting in new york city. I like to introduce our panelists. To my right i have Lynn Hecht Schafran who is attorney and director since 1981 at the National Judicial Education Program at a legal momentum. Legal momentum is a countries oldest advocacy organized for women. She is develop Training Programs about Sexual Assault cases for judges and other Justice System professionals in several media. And right frequently for legal judicial publication including the magazine of the aba, judicial division, the judges journal. And i have to my left jane sovern who is deputy general counsel for the City University of new york, the nations leading urban Public University with 24 campuses and more than 272,000degree seeking students. Jane has led the team effort in preventing and responding to campus Sexual Misconduct. Tina tchen is a former assistant under obama and the former chief of staff to First Lady Michelle Obama here she also served as the executive director of the White House Council on women and girls for eight years, and in the capacity worked closely on the Obama Administrations effort to combat Sexual Assault, including on the President Task force to protect students from Sexual Assault. Andrew miltenberg described by newsweek as the go to an attoy for students accused of Sexual Assault has defended more than 100 students at discipline or proceedings facing suspension or expulsion from a wide range of colleges and universities, and filed the first lawsuit against the United States department of Education Office for civil rights challenging the Dear Colleague letter. He also has filed numerous civil lawsuits against university in connection with mistreatment of accused students, including on behalf of of the male student accused in the mattress case. His article representing students on campus is featured in American Bar Associations litigation journal in 2016. And then i have Nancy Chi Cantalupo who was working for over 22 years to combat genderbased violence in education. As an attorney, a university minister, a Student Activist and now a law professor and title ix scholar, she is published over a dozen articles and beds on this topic including in the Yale Law Journal Forum in the New York Times room for debate pic and is currently working with the aba commission a special Domestic Violence to develop standards of practice for investigating complaints of campus Sexual Harassment and violence. Were going to hold questions to the end and i would like to start by asking lynn to address generally force issues of Sexual Violence. So, good afternoon, everyone. Thank you, back. Ive been asked to begin the conversation with an overview of a critical barrier to dealing fairly and effectively with Sexual Assault cases in any context. Stereotypes and myths about Sexual Assault that are deeply rooted in our society and which, every aspect of the responses Sexual Violence. The quotation that you see on the screen, stereotypes and myths about the causes and prevention of rate still prevail in the criminal Justice System comes from the Florida Supreme Court gender Bias Task Force report. It was published in 1990. It echoes the findings of the more than 40 other states Supreme Courts that agenda buys taskforces, and regrettably, it is as valid today as it was in 1990. Happily, theres also some good news on the horizon, but lets start with the bad news. As director of the National Judicial Education Program, which is known as in gdp, ive been involved in providing education for judges and Justice System professionals of all kinds for more than 30 years. And its very clear to me that there is a commonality between the criminal Justice System and the campus system, even though they are very different animals with very different purposes and very different protocols. And that is all too often people are charged with investigating these cases and making decisions about these cases dont know anything about Sexual Assault. Making it worse, they are sure they know everything because like so many people they might into the myth of what constitutes real rape. The stranger who jumps from the bushes with a knife, the victim sustained terrible physical injuries and reports immediately to the police. There are cases like this but they are the extreme minority. So given that today there is so much very serious evidencebased research about every aspect of rate, why is it that we are still dealing with this situation in which people should know better shall we say are still wedded to these old stereotypes and myths. Im going to take you down a little trip, a little trip down memory lane, and time is limited such as going to start in 1904. [laughing] okay. Now, everyone in this room knows who john Henry Whitmore is, right . Great legal scholar. Well, he was a deep dive freudian and here we have him basically rooting into american law. The notion of the crazy ladies who lie. And as you can see on the screen, in his great treatise, wigmore on evidence he wrote no judge should never let a sex offense charge go to the jury unless the female complainants social history and mental makeup have been examined and testified to by a qualified physician. Thats 1904. And lest you think that idea died in the dust, here we have our very own American Bar Association in 1937 and 1938. It was doing a major review of the law of evidence looking at wigmore and others, and lo and behold it looks the same. Not only the same look at this ringing endorsement. Today, it is unanimously held, and we say unanimously advisedly by experienced psychiatrists that the complainant woman in a sex offense case should always be examined by competent experts to ascertain whether she suffers from some mental or moral delusion, or tendency frequently found in young girls causing distortion of the imagination in sex cases. The warnings of the psychiatric profession, supported as they are by thousands of observed cases, should be heeded by our profession. So i just repeat, thats a very own American Bar Association. Now, the myth that rape allegations, false rape allegations are rampant is rampant. Theres a great deal of research into this, and the finest analyses of the methodologically sound research in Police Reports concludes that between two and 8 of reported rape allegations are false. The National Institute of justice funded the study that was published in 2010. He was called Police Investigations of rape, roadblocks and solutions. Municipal and campus Law Enforcement officers estimated the percentage of false rape reports, there estimates ranged from 10 to 95, to 100 . At the conclusion of this report was, this entire analysis suggests that a great Many Police Officers still believe in rape myths, specifically the one that women lie. So now lets move to the thread the needle issue about rape cases pics of this is a quotation from f lee bailey and henry in its day quite wellknown treatise on crimes of violence. Now, f lee bailey may bid on the o. J. Drinking but basically he has fallen on hard times. But in the 1973 when he and henry about this they were both very, very respected criminal defense attorney. You can see according to medical experts, and again we have the medical experts involved, the average woman is equipped to interpose effective obstacles to penetration by means of the hands, pelvic muscle. The assertion that rape is impossible because one cannot thread a moving needle. Well, here someone else who believes in the moving needles through. His name is robin camp. He was a judge in canada and he got in trouble because during a trial he said flat out to the victim, why couldnt you just keep your knees together . So he was removed from the bench by the canadian judicial council. In fact, he actually reside before the formally removed him. But in his defense, justice camp said he did not receive any training about Sexual Assault cases, and that his law practice had been a commercial bankruptcy law. Well, canada as result of this case and some similar, is now considering a bill thats called the judicial accountability to Sexual Assault training act, and it would require that lawyers were seeking judgeships, and sitting judges, have mandatory training about Sexual Assault cases. The legislator who introduced this bill said, many canadians would be surprised to learn that a lawyer doesnt need any experience in the sensitivities of Sexual Assault cases to become a judge overseeing these types of challenging trials. I think a lot of americans would be surprised to learn that thats exactly the case here in the United States. The law is a very odd profession in this respect. Its basically exulting ignorance. If you are a doctor you cannot be a dermatologist on monday and tuesday commen, and separate cod twins the rest of the week. But if you are a lawyer you can have a 20 year career in commercial law, become a judge, and overnight you are presiding in Sexual Assault cases without any background, training, experience in the field. And heres a u. S. Judge. His statement which you should all just take a moment and read for yourselves is really disturbing because he actually had experience in this field. He had been a specialized sex crimes prosecutor for 18 months right before becoming a judge. So this is really worrisome. Weve got a prosecutor who has some very interesting ideas about what constitutes rape and that damage you have to be to be worthy of a serious sentence against the person who has attacked you. So no reticular if that come with the California Judicial Commission admonished him, they made a particular point of the fact that in 1980, and now were talking about a case that came up in 2012, 1980 california had removed the resistance requirement from its law. So question. Are the people been quoting typical or not . This is the cover of a publication that is on your flash drive. Its called obviously judges tell, what i wish i had known before i presided in an adult victim Sexual Assault case. I wrote this publication based on a one question survey that i sent to judges around the country who had participated in njep understand Sexual Violence programs. And it was just this one question. What did you wish you had known before you started presiding in these cases . I thought i would get back like David Letterman is top ten. Got back so many different responses, many of them the same, but with all the addons. It ended up at this has 25 points. Now, these are the good guys. They knew the importance of training. They came to these programs, but when you look at what their questions were, what they wish they had known before they came to the bench before they started presiding in these cases, you can see that they lacked the most basic factual knowledge about Sexual Assault. Heres a very brief look at four of their points. The vast majority of Sexual Assaults are committed by some of the victim knows. Best research on this comes from the medical university of South Carolina. They found that in 89 of Forcible Rapes, and 81 of drug facilitated incapacitated rapes, the victim knew her attacker. The absence of serious observable physical injuries is not inconsistent with a Sexual Assault. Medical university of South Carolina again, only 6 of drug facilitated incapacitated, and 16 of Forcible Rape victims reported serious physical injuries. Victims of stranger and nonstranger rape almost always sustain profound, longlasting psychological injuries. The reality is that almost every rape victim, female or male, suffers severe psychological injury and a high rate of longterm posttraumatic stress disorder. Rape victims have far higher rates of contemplative and attempted and completed suicide than to nonvictims. Many turn to alcohol and drugs to self medicate the trauma. I think its profoundly disturbing to think that judges, or indeed anyone else, would not intuitively grasp they unwanted sexual penetration would cause great psychological harm but in fact, many people do not know this. And finally this one. Victim behaviors that are commonplace during and after a rape, not physically resisting, delayed reporting, and so on appear counterintuitive to those not knowledgeable about Sexual Assault. Obviously we dont have time to cover all of these, so i just want to focus on resistance. Remember, judge Derek Johnson was faulting the victim in this harangue this case because she didnt fight back enough, even though the law did not require it. 17 years ago i added a unit on the neurobiology of trauma to njep understand Sexual Violence programs that because i thought it was really important for the judges to be aware of the automatic psychophysical brain states that inhibit resistance, and to understand that this is the way the human brain responds, again automatically, to a terrifying attack of any kind. And it is not unique to Sexual Assault victims. This is the human brain across the board. Freezing, im sure most of you have heard the expression frozen fright. Freezing, this is a brainbased response to detecting danger, especially a predators attack. Think about deer in headlights. The brain response rapidly shifts the organization into a state of vigilance for incoming attacks and avenues of escape, but when the brain perceives, this is a subjective perception, u. S. Observer might think she could have jumped up from the bit and run out the door, when the victim herself, when her brain says youre not getting out of here, what happens is that extreme survival reflexes kick in. So this immobility which the body is literally paralyzed by fear unable to move or cry out, collapsed immobility, this is the possum playing dead. Disassociation, victims feel as if they are just observing this whole thing in entering. Its happening to somebody else. So i said the was a little good news, and here we go. A few years ago the virginia Supreme Court asked the trial judge to present a program for the new judges based on the publication judges tell. Afterwards, several of the judges told the presenter that the program had disabuse them of several false ideas. They had believed that the stranger jumps from bush a stereotype was accurate. They felt real rape victims had to sustain very serious physical injuries, and they did not understand that rape causes very serious psychological injuries. About a week later one of the judges, new judges who participated came to the presenter and said that he had just presided in his first Sexual Assault case and that he would not a convicted the defendant if he had not come to the training. Because the victim in this case did not have the serious physical injuries that he had always been told with a hallmark of real rape. So think back to the judges who wrote the one question survey that they had not known that victims had to have, that victims did not have to serious physical injuries to have been Sexual Assault victims. Think about what that might admit over the years before those judges learned that, in fact, thats the reality. I mentioned, let me go back, last year we presented a program for the colorado violence against women judicial institute. Its probably bought an article that was in the judges journal and thats on your flash drive on