The Neurobiology of Sexual Assault

In our ongoing coverage of federal investigations of the University of Montana’s response to sexual assault, we reported on a case in which a UM official overturned a previous ruling against a student accused of sexual assault because he believed that certain statements made by the victim were “hesitant and equivocal.”  The deciding factor?  Her use of the phrases “I think” and “I don’t think” when describing the assault.  The official in question determined that those phrases undermined the victim’s credibility, and as a result overturned the previous ruling against her alleged assailant.

The UM case may seem extreme, but researchers suggest that the perceived credibility of the victim of a sexual assault is often the deciding factor in whether or not the assault is prosecuted or even investigated.  Dr. Rebecca Campbell, professor of Psychology and Program Evaluation at Michigan State University and an expert in victimology, especially as it applies to victims of sexual assault, found that 86% of sexual assaults reported to police are never referred to prosecutors.  Moreover, through extensive interviews with both law enforcement and victims, Dr. Campbell determined that the perception of a victim’s credibility (or lack thereof) is often an important contributing factor to the failure to refer these cases to prosecutors.  She quotes law enforcement officials who told her “The stuff (sexual assault victims) say makes no sense,” “I see them hedge, making it up as they go along,” and “They can’t get their story straight.”

Such attitudes not only contribute to case attrition, they discourage victims from reporting sexual assaults in the first place because they don't want to subject themselves to the "secondary trauma" of not being believed. 

Failure to report sexual assault is itself a serious problem, starkly illustrated in this recent post exploring the origins of the oft-quoted statistic that 1 in 4 women are sexually assaulted before graduating from college.  That alarming number is even more disturbing when considered in light of researchers' estimates that less than five percent of attempted and completed sexual assaults of college students are reported.  Which is why new research by Dr. Campbell on the neurobiology of victim’s response to the trauma of sexual assault has the potential to dramatically improve the handling of sexual assault cases.

Dr. Campbell’s research suggests that the hesitancy or even inconsistency with which survivors report sexual assault may have nothing to do with their veracity and everything to do with the brain’s natural response to physical trauma.  Such trauma results in the brain releasing a flood of hormones during the assault.  While those hormones may facilitate fight or flight, they are less beneficial to the process of creating memories.  The two structures in the brain responsible for memory creation, the hippocampus and the amygdala, are both highly sensitive to fluctuations in hormone levels. 

The flood of hormones triggered by a sexual assault can lead to the victim's memory of the trauma being fragmented and difficult to recall.  This, in turn, leads to the confusion and hesitancy that law enforcement officials are trained to interpret as clues of dishonesty.  The problem is only compounded by inebriation, a particularly troubling complication given the fact that 70% of sexual assault victims have been drinking at the time of their assault.

Dr. Campbell’s research has other important implications for professionals dealing with reports of sexual assault.  Those who deal with victims of sexual assault, as well as victims themselves, are often confused by the flat or emotionless affect survivors sometimes display immediately after an assault.  Such a reaction strikes many as being inappropriate for a person who has just undergone a traumatic experience.  It may lead victims to feel guilty, and others to doubt whether they're telling the truth.

Dr. Campbell, however, explains that such a reaction is not a symptom of dishonesty or a sign that a victim is somehow culpable in their own assault, but instead the consequence of natural painkillers released by the human body in response to physical trauma.  During an assault the body releases opiates to block the physical and emotional pain of the attack.  Those opiates are the natural equivalent of the morphine that might be administered to a surgery patient.  As pointed out by Dr. Campbell, “morphine’s not sensitive to subtleties.”  The body’s naturally-occurring painkillers behave the same way, masking emotional pain and leading to the monotone response that strikes some law enforcement officers as suspicious for a victim of recent sexual assault.

Finally, Dr. Campbell’s research posits a phenomenon known as “tonic immobility” as an explanation for certain sexual assault victims' failure to fight back or to run away.  Tonic immobility (also known, at least in this context, as rape-induced paralysis) is an autonomic response wherein the body freezes in situations that provoke extreme fear.  It is an involuntary response, and its most marked characteristic is total muscular paralysis.  Fighting back or running away is literally impossible for a victim of rape-induced paralysis, whose body has decided for her that the safest course of action is to play dead.  Thus, the failure to fight back, run away, or in some other way physically resist sexual assault does not mean that a victim “wanted it” – the assumption of many institutions and officials who treat such failure of resistance as evidence of consent.

And, even when a sexual assault victim is physically capable of moving (research suggests that the proportion of rape victims who suffer from tonic immobility may approach fifty percent) it doesn’t necessarily mean that she is psychologically capable of doing so.  Besides impairing memory formation, the hormones released during a sexual assault prevent optimum operation of the circuits in the prefrontal cortex that make rational thought possible.  For the victim of rape or some other form of sexual assault, the thought process needed to resist may not be present during the assault itself.

Dr. Campbell’s research is important not only because it might alleviate the guilt of survivors struggling to understand their reaction to an assault, but also because it suggests certain crucial improvements that might be made to the way law enforcement and other officials handle sexual assault cases.  Failure to resist assault, inability to recall events clearly or sequentially, and surprisingly flat reactions to such trauma aren't necessarily suspicious, and certainly should not be grounds for throwing out a case. 

Perhaps most significant though are the implications for interviewing victims.  Dr. Campbell’s research not only suggests why victim’s accounts often seem confused and incoherent – it also suggests a solution to the problem.  She says, “It’s just going to take some time and patience for (a survivor’s recollection) to come together.”  She recounts the story of a veteran detective who insisted on getting a sexual assault victim coffee before interviewing her, having found, after years in his position, that “If you give them a few minutes to breathe, it starts to make more sense” – and made little difference to his ability to discern a false report from an honest one.  While this may go against more traditional interview-taking procedures, Dr. Campbell’s research suggests that the institutionalization of a practice similar to that veteran detective’s coffee-break might not only offer survivors a welcome reprieve in which to gather and consolidate fragmented recollections, but also lead to more accurate investigations.

The presentation in which Dr. Campbell outlines these findings, and their implications for law enforcement, began as training for the Sexual Assault Kit Action Research Team in Detroit – around twenty police officers, nurses, prosecutors, and crime lab workers.  Since then, she has educated hundreds of audiences on her findings and what they mean for workers who deal with the victims of sexual assault.  She has delivered a presentation sponsored by the Department of Justice and the National Institute of Justice, and has collaborated with the writers of “Law & Order: Special Victims Unit” to write an episode involving a sexual assault and rape-induced paralysis.

During her presentation for the National Institute of Justice, Dr. Campbell shared a comment posted by a survivor of sexual assault on a blog post connected to that Law & Order episode which movingly illustrated the value of her work.  “I cannot believe I am reading this article. After years of blaming myself, questioning myself, feeling tormented, I now understand why I froze every time I was assaulted. It now has a name. I don't have to wonder why or what's wrong with me or why didn't I do anything. I can't tell you how much relief this article brings me. You must know how much your website and your work helps those of us who have suffered in silent torment and agony. You give us a voice. You give us compassion. You give us strength and hope. There are no words to express the gratitude I feel.”

The University of Montana's Cautionary Tale

"A rape-tolerant campus with ineffective programming, inadequate support services for victim survivors, and inequitable grievance procedures threatens every student." Diane G. Barz, retired Associate Justice Montana Supreme Court, Investigation Report dated January 31, 2012

Yearlong federal investigations of the University of Montana (UM) provide a cautionary tale for colleges and universities about how not to respond to reports of sexual assault. The U.S. Department of Education (ED) and the U.S. Department of Justice (DOJ) concluded that UM's responses to female students who reported sexual assaults were delayed, inadequate, and discriminatory.¹

ED's Title IX compliance review of UM produced "a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault." The DOJ's parallel investigation of UM's Office of Public Safety (OPS) resulted in a "roadmap for reform" that "will stand as a model" for other schools to prevent sex discrimination from interfering with an effective response to sexual assault complaints.

These problems were not confined to UM's Missoula campus. The DOJ also investigated the Missoula Police Department (MPD) and reviewed over 350 reports of sexual assault made by Missoula women, including UM students, received between January 2008 and May 2012. In the opening paragraph of its May 15, 2013 Letter of Findings, the DOJ concluded that the MPD's "response to sexual assaults compromise the effectiveness of sexual assault investigations from the outset, make it more difficult to [uncover] the truth, and have the effect of depriving female sexual assault victims of basic legal protections."

We'll first look at the underlying problems that contributed to UM's "rape-tolerant campus" because policies and procedures alone cannot fix systemic problems. Instead, they require an ongoing commitment to effect change in attitudes that turn into action. In later posts, we'll discuss the specific steps to Title IX compliance laid out in the "blueprint" and "roadmap."

 

Acknowledging the Problem

Before the federal investigations, UM had been grappling with its sexual assault problem. In December 2010, a female student reported to the MPD that four UM football players drugged and raped her.² While the MPD found there wasn't enough evidence for criminal charges, police informed UM's football coach about the allegations, but that report was not passed along to UM administrators until a year later.³

In December 2011, Royce Engstrom had been UM's president for just fourteen months when he received a call about the allegations. Once President Engstrom became involved, UM hired retired Montana Supreme Court Justice Diane Barz to investigate sexual assault reports at UM. Her final report found nine incidents reported between September 2010 and December 2011. Her recommendations included making information and resources on sexual assault readily available, training UM personnel on how to report and respond to sexual assault, and educating students on the consequences of risky behavior.⁴

Despite Barz's report, there was internal resistance to acknowledging UM's sexual assault problem. Around that time, internal email messages showed that UM Vice President Jim Foley questioned UM Dean of Students Charles Couture's use of the term "gang rape" to describe the December 2010 incident. Foley suggested that Couture should have called it "date rape." Couture replied, "Jim, I used that term [gang rape] when I accused the four football players of rape … because that is what it was.”

Over the next six months, Engstrom had fired UM's football coach and athletic director, and Foley had stepped down as UM's Vice President.

But just a month after Justice Barz's report, two more women complained to UM employees that they were sexually assaulted on the same night by the same male student, but he fled the country after UM's Dean of Students notified him of the charges and there was a one-week delay in reporting the incidents to local law enforcement.

 

Sexual Assault Case Reviews

Against this backdrop, the ED and DOJ reviewed UM's responses to twenty-three sexual assault complaints and ten sexual harassment complaints received by UM over the prior three school years. They found that UM's delayed and inadequate responses to complaints resulted in students not feeling safe on campus, suffering mental health problems, becoming suicidal, withdrawing from classes, or leaving the University altogether.

A sampling of cases discussed in the ED and DOJ's Joint Letter of Findings shows that UM's problematic responses were not confined to a particular area. In one case, the UM official investigating a sexual assault complaint knew that the victim was upset because she repeatedly saw her attacker on campus, but took no steps to protect her. Another sexual assault victim's roommate reported to their Resident Assistant (RA) that the victim was suicidal. The RA reported this to the Residence Life Office but there was no record of any action taken to ensure her safety. In yet another case, sufficient evidence was found to expel the student accused of sexual assault, but he was allowed to stay on campus for six more weeks to finish the semester. While the victim had left the University shortly after she reported the sexual assault, allowing her attacker to remain on campus may have left other students at risk of assault or harassment.

In two other cases, UM stopped its investigation because it "assumed the victims had stopped cooperating," even though UM had not received any communication from the victims that they no longer wished to continue with the grievance process.

Given these experiences, it is not surprising that other students were reluctant to report sexual assault because they feared retaliation, or that the University wouldn't respond, or, if it did, would respond negatively. One student said that University employees said things that indicated they didn't believe her. Another former student said she didn't report being sexually assaulted by a football player because they "could get away with whatever they wanted." Other students, community members, and faculty echoed that assessment, with some people saying that football players were treated like they were "Gods."⁵

And the DOJ's investigation of UM's campus security revealed another major problem: OPS's responses to student reports of sexual assault were "marked by confusion, repetition, and poor investigative practices."

For example, one OPS case narrative focused on the woman's alcohol-scented breath and "clean and undamaged" clothing. A victim advocate said OPS interviews were "painful" for the victims because they were interviewed by several officers who asked "very personal questions" without warning or explanation of their relevance, and students were also discouraged from filing a police report. Victims who did report their assault to the Missoula Police Department (MPD) had to relive their trauma by answering the same questions because OPS officers didn't provide MPD with enough information.

Two OPS officers described a sexual assault reported in a university residence hall as "regretted sex." And OPS Chief Taylor told investigators that the responding officer's job is to determine if the sexual assault is "provable." However, as the DOJ found, determining the veracity of the woman reporting a sexual assault before a thorough and unbiased investigation is completed not only indicates a failure to adequately respond to sexual assault, but "is particularly problematic given the data showing that the overwhelming majority of sexual assault allegations reported to the police are true."⁶

Based on ample evidence, the DOJ concluded that the OPS's "failure to adequately respond to reports of sexual assault is due at least in part to gender discrimination." By discouraging them from reporting sexual assaults to law enforcement, OPS discriminated against women, deprived them of basic legal protections, and put their safety at risk.

 

Systemic Change

With mounting evidence and media coverage of UM's sexual assault problems, Missoula City Councilman Dave Strohmaier told over 100 community members gathered to hear from UM and community leaders, "If there are systemic problems with how we are addressing violence within our community then we absolutely need to move aggressively on all fronts to address it."

As Justice Barz said, a rape-tolerant campus climate threatens every student. So, Title IX requires that when systemic problems discourage students from reporting sexual assault, schools must take "actions … to address the educational environment, including special training, the dissemination of information about how to report sexual harassment, new policies, and other steps designed to clearly communicate the message that the college or university does not tolerate, and will be responsive to any reports of, sexual harassment."

The ED's and DOJ's findings and conclusions in the UM case show that a top-down strategy is the foundation for creating a campus culture that does not tolerate sexual assault, and that other key components of the ED-DOJ strategy are education and effective procedures for handling problems when they arise.

In future blog posts, we'll dig deeper into the UM investigations and the resulting documents that provide the ED's and DOJ's "blueprint" and "roadmap" for schools on how to respond to sexual assault, create a safe learning environment, and avoid becoming a cautionary tale.

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<sup>1. The settlement agreement relating to the Title IX compliance review among UM, the DOJ, Civil Rights Division, and ED, Office for Civil Rights is set forth in the Resolution Agreement dated May 9, 2013. The settlement agreement between the DOJ and UM Regarding OPS's Response to Sexual Assault is set forth in the Memorandum of Agreement (MOA) dated May 9, 2013.
2. Another female student reported that she was drugged and raped around that same time but did not want to pursue action against her assailants (Investigation Report dated January 31, 2012).
3. Missoula County Attorney Fred Van Valkenburg discussed the case with a local newspaper reporter, stating "I think that clearly the evidence in the case indicates that what happened was with consent, not without consent," he says. "There may have been sex with more than one person—that may seem sort of odd to people that someone might agree to have sex with more than one person—but I don't think because it's odd makes it automatically a non-consensual situation."
4. Justice Barz also noted, "I am disappointed with the lack of response from students with knowledge of house parties where the incidents were alleged to have occurred. Some that have been questioned have not been truthful. I believe 'lying' is also covered under the Student Conduct Code" (Investigation Report dated January 31, 2012).
5. In August 2012, the New York Times reported pending rape charges against two UM football players, and a "widespread feeling in Missoula that players had been coddled, their transgressions ignored or played down." In January 2013, running back Beau Donaldson pled guilty to rape and was sentenced to ten years in prison. Quarterback Jordan Johnson was acquitted on rape charges on March 1, 2013.
6. The Letter of Findings cites Kimberly A. Lonsway, Joanne Archmbault & David Lisak, "False Reports: Moving Beyond the Issue to Successfully Investigate and Prosecute Non-Stranger Sexual Assault," 3 The Voice 1-3, NDAA's National Center for the Prosecution of Violence Against Women (2009).</sup>

New Developments in Title IX and Transgender Students

A recent settlement in California suggests schools will need to be more proactive in accommodating transgender students under Title IX.

In July, the Department of Justice (DoJ) and the Arcadia Unified School District in California reached a resolution agreement based on a complaint that the district violated Title IX by denying a transgender student equal access to education programs and facilities.

The student, whose birth sex was female, has identified as a boy since a young age. With his family's support, he began transitioning from female to male in the fifth grade. He asked to be called by masculine pronouns, adopted a traditionally male first name, and wore male clothes. The student's classmates quickly accepted his transition to male.

The school district, however, was less accommodating. It wouldn't let the student use the boy's bathroom or locker room. When changing for gym class, he had to use the school's health offices, even though he had used the same boys' locker room — without incident — during a summer camp held at the middle school.

And when the boy's class went on an overnight field trip, the district forced the student to stay in his own cabin with a parent while other students shared cabins. The student had requested several other boys as cabin mates, and indeed, several boys had requested him.

After the student filed complaints claiming the school district was violating Title IX, the district reached a resolution agreement with the DoJ. They agreed to permit the student to use male-designated facilities and "otherwise treat the Student as a boy in all respects."

On the heels of this agreement, California passed a law to protect transgender students from sex discrimination and clarify existing protections.

In language that recalls the situation at Arcadia, the bill requires that "a pupil be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records." The California bill is the first of its kind in the US.

 

Accommodating Transgender Students

Both the agreement and the new California law indicate a growing understanding among lawmakers and regulators that schools are responsible for accommodating transgender students.

As the resolution agreement between Arcadia and the DoJ states, "All students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX."

The Arcadia agreement suggests the Department of Education and DoJ's greater willingness to enforce these aspects of Title IX. Erin Buzuvis wrote at Title IX blog that the Arcadia case "represents the first time that the Department of Education has considered under its jurisdiction to enforce Title IX a claim involving discrimination on the basis of transgender gender identity."

Universities and colleges should review their policies and procedures to make sure they have the proper policies and procedures to work with transgender students.

 

Indeed, in the past few years many universities and colleges have already been experimenting with ways to better accommodate transgender students. Here are a few examples worth considering:

• Some colleges allow students to include their preferred names and pronouns on a class roster instead of their legal names, so students don't have to 'out' themselves as transgender by correcting a professor in front of a full classroom. 
• The University of Arkansas at Fort Smith agreed to allow a transgender student who identified as female to use women's restrooms. Previously, she had been restricted to using gender-neutral restrooms.
• Oxford University in the UK changed its dress code so students don't have to wear ceremonial clothing specific to their gender.
• Smith College clarified its statement on gender identity and expression to address transgender students at the all-women's school.

Despite these promising developments, there is still considerable debate on some campuses about what constitutes reasonable accommodations for transgender students.

For instance, this August, the UNC Board of Governors halted a plan by its Chapel Hill campus to offer gender-neutral housing, which allows students of different genders to share apartments and suites, sidestepping problems with single-sex housing for transgender students and providing them a safe space on campus.

 

Schools can expect these debates about gender-neutral housing and access to single-sex facilities to start playing a larger role in discussions about Title IX.