You are hauled in by the police and accused of rape. Being innocent, you demand to know details of the accusation: when, where did the crime occur, and on what’s the evidence? The police respond, “the young woman’s allegation is the only evidence, and her account has shifted several times about when and where. Now prove you did not rape her.” This Kafkaesque scenario inverts the presumption of innocence by assuming you are guilty merely because you are accused.
A bill before Congress seeks to gut the presumption of innocence upon which all of due process rests. The Abby Honold Act would fund and expand “trauma-informed” law enforcement in police departments across the land. This #Metoo-approach to allegations of sexual abuse requires the police to “believe the woman” and automatically view her as a victim. The Act redefines due process and objective police work as attacks on accusers because the presumption of innocence is granted to an accused and the burden of proof is placed on an accuser who is asked for evidence. (Men are victimized by sexual abuse, as well — and at rates similar to women — but male victims constitute a small percent of reported assaults.)
The Act and its underlying #Metoo politics are pernicious. They draw on the natural compassion people feel toward sexual victims and use this response as a moral mandate to gut justice. The currently popular drive to reform the police is hijacked to pull off a revolution instead — one that heads in the wrong direction by deliberately embedding bias and subjectivity into law enforcement in the name of crusading virtue. Only a unrepentant villain could object to believing a rape victim — a position that silences most critics.
In January 2021, Amy Klobuchar reintroduced a 2017 version of the Act in the Senate; Tom Emmer (R-MN) reintroduced it in the House. The bill’s text describes its purpose: “To authorize the Office on Violence Against Women to improve the handling of crimes of domestic violence, dating violence, sexual assault, and stalking by incorporating a trauma-informed approach into the initial response to and investigation of such crimes.” [Note: some presentations of the Act include the words “evidence-based” even though “trauma-informed” is a diametrically opposed concept.]
The Abby Honold Act is named after a former University of Minnesota student who was violently raped in 2014. Her case became a media sensation because the investigation was badly conducted and this was deemed to be the norm within police departments. Honold spent the next few years campaigning for federal funds with which to retrain police officers on how to handle sexual abuse cases.
Standard police procedure is supposed to address an accuser in an unbiased manner in order to collect evidence that supports or invalidates an allegation. This is called the Reid method, which has three steps: factual analysis to develop or discard leads, interviews to gather more information, and interrogations to elicit a confession. Police execution often falls short, but this is the ideal procedure. By contrast, trauma-informed police procedure is called the Forensic Experiential Trauma Interview (FETI) and is proudly biased in favor of the accuser. The manual, “FETI Forensic Experiential Trauma Interview,” opens, “The real key to FETI is not the exact questions, but the approach: sympathetic, believing, victim-centered.” Like a therapist, the investigator uses “principles and techniques developed for forensic child interviews (open-ended non-leading questions, soft interview room and empathy).”
The process also has three steps. First, the accuser/victim is believed. Second, contradictions, memory gaps, and inconsistencies in the accuser/victim’s testimony are not considered disprobative. Investigators work with an accuser/victim to build a case that reconciles gaps or contradictions in testimony with the explicit goal of convicting an accused. A guide to FETI states, “Trauma victims often omit, exaggerate, or make up information when trying to make sense of what happened to them or to fill gaps in memory.” Third, factors that cast doubt on the accuser/victim’s testimony are dismissed; for example, a history of false allegations is not relevant. In short, the investigator eschews standard evidence-gathering techniques. The proposed Rape Accusation Program Employee for You (RAPEY) Act in Texas is an example. The RAPEY Act prohibits the use of lie detectors on accusers/victims.
An account of the RAPEY Act explains, “The bill’s author … believes in science.” What is the science to which objectivity, evidence, and due process must bow?
Certified FETI — the “founding and governing body of the official” FETI Interview — describes the process as science-based methodology “informed by the latest research on the neurobiology of trauma and memory.” A FETI consulting firm expands. “Traumatic memories are … encoded in sensory details…. Individuals who experience trauma encode their memories in flashes or broken detail and the incidents are remembered with senses — sight, hear, touch, smell, taste.” A victim may not provide a chronological sequence, it is claimed, but may rely on sensory memories to fill in the gaps with “what logically makes sense to them.” What makes sense to the person can shift from one account to another.
This profoundly impacts police interviews with the accuser/victim. A traditional interviewer asks, for example, “What was the suspect wearing? What did the suspect look like?” The FETI interviewer asks, “What are you able to remember about what you felt? What are you able to remember about what you tasted?” The accuser/victim is not pushed for details that make her uncomfortable.
Does FETI work? Advocates point to its use in the military as proof of its legitimacy. But the U.S. Air Force explicitly rejected FETI, stating, “Given the lack of empirical evidence on FETI’s effectiveness, and the large number of investigative, professional and scientific concerns regarding FETI and FETI training, the Air Force does not consider FETI as a viable option for investigative interviewing. We believe it would be inappropriate and irresponsible to discontinue the use of a robust, well-studied, effective, and empirically-validated interviewing method … in favor of an interviewing method that is loosely-constructed, is based on flawed science, makes unfounded claims about its effectiveness, and has never once been tested, studied, researched or validated.”
It would also destroy due process.
The reason for due process
Due process is the fair treatment that every individual deserves from law enforcement and the judiciary. Accusers should be heard without prejudice; defendants should be judged on the evidence; both procedures should be unbiased. In America, due process derives from the common law tradition and the Bill of Rights, as well as legal and court precedents. The protections include a presumption of innocence for the accused, the right of cross-examination, and transparent proceedings.
The presumption of innocence for an accused is based on both logic and human nature. The burden of proof being placed on the accuser is the flip side of this presumption. In logic, the demand for evidence or proof falls upon whomever makes a claim. The onus of proof is so strong that shifting it to someone else is recognized as a fallacy — the Burden of Proof Fallacy. This comes from the Latin “onus probandi incumbit ei qui dicit, non ei qui negat,” which means the burden of proof is on the person making the assertion, not on someone who denies or questions it. The Honold Act flaunts this principle of logic.
The presumption of innocence is also based on human nature. It recognizes that even sincere accusers can be mistaken or confused, and insincere ones lie. Evidence must separate accuracy from error, and objectivity must discern justice from revenge. This occurs because third parties — judges, juries, the public — are unable to know the truth without evaluating facts by reasonable standards. The burden of proof is not and is not intended to be an indictment of an accuser who often wrong about evidence — even key evidence such as an identification. The burden of proof is a requirement of logic and an acknowledgement that mistakes happen with frequency. The Innocence Project, which was formed with the mission “to free the staggering number of innocent people who remain incarcerated,” recognizes that confusion is common in crimes where drugs or alcohol are involved. This is why an accused is presumed innocent, which, in turn, underlies the right to cross-examination and to transparency in court procedures. It is no exaggeration to say that all due process rights are organized around the presumption of innocence.
A trauma-informed approach is the opposite of due process because it demands that all accusers be believed. This position raises a question: why investigate a sexual crime at all? If an accusation is proof of guilt, why have a trial? After all, police work and trials are meant to ascertain the facts. If an accusation is the only fact required to judge guilt, then society should be spared the cost of police departments and the court system.
Compassion for victims is appropriate, but offering it is the function of therapists, social workers, and other sympathetic third parties. The purpose of investigators is to gather and evaluate information. They must be unbiased fact-finders who abide by logic and long-established criminal procedures that aim at protecting the innocent.
Law enforcement often handles sexual assault badly but attacking the need for evidence before convicting someone is not the solution. Accusers/victims must be heard within the framework of fair police procedures, especially due process, where accusations stand or fall on their merit. This benefits them as well as the accused and society. The worst barrier that victims face are the false charges brought by others in the past. False accusations make the public cynical about fresh ones. By contrast, every accusation that is proven to be true makes the next one a bit more credible.
Victims deserve better than the Honold Act. They deserve due process.