P.O.

Box 1221
Rockville, MD 20849
Telephone: 301-801-0608
www.prosecutorintegrity.org

January 10, 2018

The Honorable Amy Klobuchar
302 Hart Senate Office Building
Washington, DC 20510

Re: S. 2266: Trading the Presumption of Innocence for a Supposition of Guilt

Dear Senator Klobuchar:
The Center for Prosecutor Integrity (CPI) is a 501(c)(3) organization working to improve prosecutorial
ethics, end wrongful convictions, and promote due process. CPI is writing to urge you to withdraw S.
2266 (the “Abby Honold Act”) because the bill’s objectives will only be achieved at the expense of
investigative neutrality, due process, and fundamental fairness.
S. 2266 lays out a number of commendable goals, including improved communication between
complainants and law enforcement, increased collaboration with community responders, and improved
complainant satisfaction with the criminal justice process. The problem arises with the manner in which
the bill proposes to achieve these goals. S. 2266 would authorize the award of grants to organizations that
teach criminal investigators to utilize “trauma-informed” approaches.
Proponents of trauma-informed approaches correctly advise investigators to not interpret inconsistencies
or gaps in a complainant’s statements as necessarily probative of an unfounded report.
But these advocates take the argument one step further, insisting that such inconsistencies should be
interpreted as prima facie evidence that sexual trauma in fact did occur. This guilt-presuming stance has
the effect of dissuading the investigator from consideration of other explanations for implausible
complainant statements, such as excessive ingestion of alcohol or a mistaken allegation.
In the end, the trauma-informed approach creates an illogical and irrefutable circular argument:

 We must presume the complainant to be a ‘victim’

 The trauma of the putative assault caused the ‘victim’s’ fragmented or loss of memory, resulting in
the inconsistent testimony
 Inconsistencies in the ‘victim’s’ testimony are proof the ‘victim’ was sexually traumatized

Writing in The Atlantic, journalist Emily Yoffe recently analyzed the trauma-informed philosophy and
concluded it represents “junk science.” She concludes:i
The result is not only a system in which some men are wrongly accused and wrongly
punished. It is a system vulnerable to substantial backlash. University professors and
administrators should understand this. And they, of all people, should identify and call out
junk science.
Further underscoring its guilt-presuming mindset, the bill conflates “complainant” with “victim.” In the
context of a criminal investigation, neither innocence nor guilt can be presumed. But through careless use
of language, S. 2266 tells investigators to presuppose victimhood from the time an allegation is first
made. District Court Judge F. Dennis Saylor has noted, “Whether someone is a ‘victim’ is a conclusion to
be reached at the end of a fair process, not an assumption to be made at the beginning.”ii
Believe the victim approaches such trauma-informed investigations are widely used in university settings,
attracting strong criticism:

 Heritage Foundation: “Extreme care must be taken to avoid having either investigators or
members of a tribunal with preconceived biases or conflicts of interest.”iii
 Federalist Society: “Many of the professors and campus officials who adjudicate campus sexual
assault claims are ‘trained’ to believe accusers and disbelieve accused students, and barely feign
impartiality.”iv
Last week the Center for Prosecutor Integrity released a White Paper titled ‘Believe the Victim:’ The
Transformation of Justice.v The paper concludes that “believe the victim” approaches such as trauma-
informed investigations represent an attempt to recast the neutral role of the investigator into that of an
advocate and thereby systematically bias the criminal justice system. As such, the “believe the victim”
movement not only threatens the reliability of sexual assault adjudications, it compromises the integrity of
our entire criminal justice system.
Some have predicted these guilt-presuming approaches will eventually harm rape victims. Harvard Law
professor Jeannie Suk has written, “When the core belief is that accusers never lie, if any one accuser has
lied, it brings into question the stability of the entire thought system, rendering uncertain all allegations of
sexual assault.”vi
Investigators must be able to discover and produce evidence that is accurate, relevant, and unbiased in
order to hold offenders accountable and protect the innocent. S. 2266 is a legislative Trojan horse that
would stain sexual assault investigations with a presumption of guilt. The Center for Prosecutor Integrity
urges you to withdraw S. 2266 and consider other approaches that are scientifically based and
constitutionally sound.
Sincerely,

Christopher J Perry
Christopher J. Perry, Esq.
Deputy Executive Director

Attachment: Emily Yoffe, The Bad Science Behind Campus Response to Sexual Assault, The Atlantic,
2017.

i
Emily Yoffe, The Bad Science Behind Campus Response to Sexual Assault, The Atlantic (2017).
ii
John Doe v. Brandeis University, Memorandum and Order on Defendant’s Motion to Dismiss, J. Saylor (March 31, 2016).
iii
Hans von Spakovsky, Campus Sexual Assault: Understanding the Problem and How to Fix It, The Heritage Foundation (July,
25, 2017) http://www.heritage.org/crime-and-justice/report/campus-sexual-assault-understandingthe-problem-and-how-fix-
it.
iv
H. Bader, et al., A Review of Department of Education Programs: Transgender Issues, Racial Quotas in School Discipline, and
Campus Sexual Assault Mandates, released by the Regulatory Transparency Project of the Federalist Society, (Sept. 12, 2017)
https://regproject.org/wp-content/uploads/RTP-Race-Sex-Working-Group-Paper.pdf).
v
Available at http://www.prosecutorintegrity.org/wp-content/uploads/2018/01/Believe-the-Victim-FINAL.pdf.
vi
Jeannie Suk Gersen, Shutting Down Conversations About Rape at Harvard Law, The New Yorker (Dec. 11, 2015).
https://www.newyorker.com/news/news-desk/argument-sexual-assault-race-harvard-law-school.