Abstract

Excerpted From: Margareth Etienne and Richard H. McAdams, The Consequences and Constitutionality of Training Police to Blame Victims, 66 William and Mary Law Review 467 (November, 2024) (300 Footnotes) (Full Document)

A large legal literature explores issues of police interrogation, notably focusing on due process voluntariness, Miranda, the permissibility of police deception, and the causes of false confessions. We focus here on a neglected topic: the perils of the common interrogation tactic of victim-blaming, a form of “moral minimization.” The most popular police training manuals advocate degrading the victim on the theory that anything that shifts blame away from the suspect makes the suspect more likely to confess. That theory leads the manual to recommend interrogation scripts that endorse gender stereotypes. Consider one proposed script from a manual and another one from an actual case, both aimed at a male sexual assault suspect:

Joe, no woman should be on the street alone at night looking as sexy as she did. Even here today, she's got on a low-cut dress that makes visible damn near all of her breasts. That's wrong! It's too much of a temptation for any normal man. If she hadn't gone around dressed like that you wouldn't be in this room now.

Everyone gets blasted on New Year's Eve and that's where I think everything went wrong because you just made an error in judgment .... Alcohol is ... where people get themselves into trouble, cause they lose their inhibitions .... Women are a lot more promiscuous, you know. They flirt more, you know when they're on alcohol ... cause they lose their inhibitions.

As in these examples, our focus is on the subset of victim-blaming that involves the use of degrading stereotypes. Here, the stereotype concerns female victims of sexual assault and declares that they are likely to have provoked the attack by their manner of dress or to have encouraged the sex because of their intoxication. As we will see, in other cases, the victim-blaming stereotype involves race, religion, or sexual orientation. We label such tactics victim-blaming-by-stereotype.

Blaming victims is morally repulsive. Invoking negative stereotypes as the means of blaming victims is especially repulsive. But what if the unseemly tactic nevertheless raises the true confession rate for serious crimes? Might it be necessary to disparage victims to protect against future victimization? The question, it turns out, is merely hypothetical because no credible evidence supports the value of victim-blaming-by-stereotype. American interrogations do produce many true confessions, but no evidence suggests that victim-blaming techniques contribute to that success. American interrogation methods are based on decades-old anecdotes and midcentury intuition, more art than science. As we have learned about other domains of intuition-based policing, sometimes conventional wisdom is simply false.

Part of the empirical problem is quite general: there is no evidence that the overall style of accusatory interrogation used in the United States is better at producing true confessions than non-accusatory styles, such as the information-gathering techniques used in the United Kingdom, Australia, and elsewhere. But even if we did know that accusatory methods were generally more effective than the alternatives at inducing true confessions and avoiding false ones, there is absolutely no evidence that the particular tactic of victim-blaming contributes to any such success, much less the particular subset of victim-blaming-by-stereotype. We invite interrogation scholars to provide evidence that moral minimization generally and victim-blaming specifically are effective. Until then, we think the immorality of blaming victims cannot be justified.

Yet the problem is worse than moral repulsiveness. Victim-blaming in interrogation produces negative consequences. Victim-blaming-by-stereotype harms crime victims and undermines effective policing. When victims discover that police have disparaged and blamed them, they suffer the additional psychological harm of “secondary victimization.” Even when the victim does not discover how police disparaged them in the interrogation, police reinforcement of suspects' degrading stereotypes of victims increases the risk of their recidivism and thus the risk that people will suffer primary victimization again in the future.

Beyond the costs for victims are the negative effects of victim-blaming-by-stereotype on the interrogators themselves. When they routinely blame victims in interrogations as a matter of training and practice, the result is a detective cadre that is more inclined to hold, for real, stereotypical victim-blaming beliefs. That result occurs both because victim-blaming in interrogation affects who chooses to become a detective--a self-selection theory it slowly influences detectives to hold such beliefs--a persuasion theory. Police culture has long been criticized for being hypermasculine and racist. Among the many possible causes, the role of interrogation training and interrogation practice is surprising and overlooked.

The results are inferior investigations of violent crime. Detectives with stereotypical victim-blaming beliefs are worse at the job of clearing cases because they bring excessive skepticism to the stories that victims tell and are less motivated to investigate such stories diligently. Victims are less likely to trust police that hold such stereotypical victim-blaming beliefs and therefore less likely to report certain crimes. In short, the training in and practice of victim-blaming-by-stereotype contributes to a stereotyping police culture, low trust of police, and the low clearance rate of certain crimes.

Perhaps these costs have been ignored to date because interrogation scholars, when examining the constitutionality of interrogation practices, naturally think in terms of Miranda and the due process bar on involuntary confessions. Victim-blaming-by-stereo-type does not plausibly raise such issues. It clearly does not violate Miranda nor create unconstitutional pressures to confess. Instead, to see the constitutional issue, one must focus not on suspects but victims. Victim-blaming-by-stereotype plausibly violates the constitutional rights of victims to the equal protection of the law. To be clear, we would call for the elimination of the tactic even if it did not offend constitutional law because government officials should not endorse stereotypes based on race, sex, sexual orientation, religion, and the like. We advocate that state and municipal legislatures command that the funds they budget for law enforcement not be used to acquire interrogation manuals or training that recommend victim-blaming-by-sterotype. We also develop a doctrinal argument that such endorsement does violate the equal protection rights of victims. The official decision to interrogate suspects differently based on the race, sex, or religion of the victim is a classification that should trigger heightened scrutiny. As there is no evidence that these classifications serve the compelling government interest in securing true confessions, they cannot withstand any such scrutiny.

We proceed in three parts. Part I describes the use of victim-blaming techniques in American police interrogations. The most dominant manuals are particularly explicit in endorsing the use of stereotypes to blame women victims, but the manuals' logic explicitly carries over to blaming victims based on race, religion, and sexual orientation. We review existing field evidence that detectives follow this victim-blaming logic and provide corroboration from some appellate cases.

Parts II and III critique victim-blaming-by-stereotype. Part II identifies the neglected costs just described. First, victim-blaming in interrogation harms crime victims, especially when they learn that government agents have blamed them for the crime based on derogatory stereotypes. Second, the pretense of victim blaming produces a detective cadre that is more willing in actuality to blame victims, which undermines effective policing. We explore two explanations. One is self-selection: the need to perform victim-blaming in interrogation is likely to attract into detective work those already less sympathetic to certain victims. The second is persuasion: the practice of victim-blaming nudges detectives towards believing the stereotypes they employ. In short, what starts in the interrogation room spills over into the rest of policing.

Part III describes how the tactic offends the principles of antidiscrimination law. For the police to deploy specific interrogation tactics because of the sex, race, or religion of the crime victim is a suspect classification that demands heightened scrutiny under standard equal protection doctrine. We also explore the more novel theory that, regardless of classification, government actors should not be allowed to endorse demeaning stereotypes based on sex, race, or religion, at least not without satisfying heightened scrutiny. Such scrutiny would put the burden of proof on those who defend victim-blaming-by-stereotype. This Part concludes by returning to the empirical issue and demonstrating even more fully why we say there is no social science evidence that the tactic increases the true confession rate or otherwise contributes to public safety.

In our conclusion, we call for the immediate end of the interrogation tactic of blaming victims by stereotype. In addition to civil rights litigation challenging the practice on equal protection grounds, we propose that municipal and state governments stop allocating budgetary resources to purchase interrogation manuals or training that recommend the tactic.

[. . .]

The dominant interrogation manuals in American law enforcement begin with a first edition in 1962. The general tactic of moral minimization and the specific tactic of victim-blaming-by-stereotype date back to intuition and anecdote from before that time period. That is why the explicit stereotypes of women sound as if they were grounded in gender roles of the mid-twentieth century. No serious evidence demonstrates that we need to be doing this, that is, nothing demonstrates that victim-blaming-by-stereotype--whether on the basis of gender, race, religion, or sexual orientation--works to secure additional true confessions.

We have advanced three reasons to terminate the use of this interrogation technique. First, the use of gender and racial stereotypes as a means of blaming the victim in interrogation violates the victim's constitutional right to equal protection. Second, blaming the victim directly harms victims. Nothing could be a clearer form of “secondary victimization” than for the victim to learn that the detectives investigating the crime have endorsed the suspect's victim-blaming rationalization. Victims are also harmed when the police endorsement of victim-blaming motivates the perpetrator to offend again. Third, blaming the victim reinforces a culture of victim-blaming within police departments, which deters the reporting of crime and undermines effective investigations. We explored two reasons that victim-blaming spills outside of the interrogation room: self-selection into the profession of detective work and the tendency of people to be persuaded by what they pretend to be.

One might use the Equal Protection Clause to litigate the issue, but we also advocate a simpler path: state and municipal legislatures should command that the funds they budget for law enforcement not be used to acquire interrogation manuals or training that recommend victim-blaming-by-stereotype. Given the profit-motive behind the private interrogation industry, even a few such budgeting decisions could generate enough commercial pressure to bring about change. In the end, our message is simple. Let us stop spending public tax dollars to train police to blame victims.

Carl L. Vacketta Professor of Law, University of Illinois College of Law at UrbanaChampaign.

Bernard D. Meltzer Professor of Law, University of Chicago Law School.