My interest in how Institutions of Higher Learning (IHE) respond to allegations of sexual misconduct and violence was piqued first by the Penn State/Jerry Sandusky crisis, when I asked myself, “How did this happen?” In ensuing years, I repeated that question, watching news coverage of what appeared to be complete mishandling of campus sexual assault allegations.
On May 24, 2014, the United States Department of Education released, “… a list of the higher education institutions under investigation for possible violations of federal law over the handling of sexual violence and harassment complaints” per its website at http://www.ed.gov which named more than fifty institutions. Clearly, the problem persists.
IHEs face a unique challenge as their responsibility to students is multi-faceted and they serve many roles. Policing, whether through a campus police force or security guards, is a significant role, in some ways incongruent with the other roles. The investigation of violent crime requires not just certain skills and experience, but a mindset not often entrenched in academia.
My twenty-seven years of law enforcement experience which includes executive management and performance auditing, has given me unique insight as to how human nature and corporate dynamics can adversely affect criminal investigations. This is more significant when an investigation of a violent crime is conducted in a non-law enforcement environment.
During my years as a police officer and FBI Agent on the street responding to and investigating crimes of violence, my perspective was one of “making the case.” That meant finding evidence of guilt to convict the accused.
After stepping into FBI senior executive management, my perspective began to change. As a manager, my job was to assess the quality of the investigation. No longer judging my own work, I reviewed investigations from a bird’s eye view, determining if an investigator was working in an effective and efficient manner. Some of the questions I posed to myself:
- Was the investigation progressing?
- Did the evidence support the direction of the investigation?
- Was the evidence credible?
- Was the investigator approaching the case with an open mind?
Often, my conclusions were at odds with the investigators and their immediate supervisors. That was with good reason – we had different perspectives and motivation.
Since retiring from the FBI ten years ago, I have delved more into the socio-psychological factors that influence law enforcement and investigations. When I have spoken before an audience of law enforcement officers about the flaws that adversely impact investigations, I was surprised by the acceptance of my statements, having expected bold resistance.
We have all been exposed to unfairness and unjust action. The balance of protecting the rights of the victim or accuser, the rights of the accused and right of the State to maintain order is a delicate one. Our justice system is brilliant yet imperfect; vulnerable to the flaws of human nature.
IHEs face an unusual challenge and struggle with the balance of fairness when confronted with allegations of sexual misconduct and violence.
When an IHE is presented with an accusation of sexual violence, they must move forward with an investigation. The quality of the investigation is paramount to:
- Obtaining the facts
- Protecting rights
- A fair hearing
The initial interaction with the victim and the interview will be lay the groundwork for the investigation. An investigation cannot be approached as any other administrative task. All personnel who will interview a victim must be trained in basic criminal interviewing skills and understanding the issues surrounding a victim in trauma. This requires specialized training and experience. Investigative skills are honed through practical application, as any other workplace skill. It cannot be a secondary, once-in-a-while job responsibility. Such sensitive matters should be reserved for individuals with investigative law enforcement experience. If a full-time position is not warranted, the university should consider contracting this responsibility. Though not as cost-effective as using a staff member, it will lead to a more thorough and fair investigation.
In my experience, investigators whose primary function was compliance and audit, did not possess the requisite skillset for sensitive or complex investigations. This is more than a matter of compliance with Title IX, the Clery Act or other state and federal laws. This is an investigation of an alleged serious crime, and must be conducted in accordance with generally accepted criminal investigative procedures.
While the IHE does not conduct a criminal investigation, the alleged actions constitute a criminal offense. The investigator must understand the elements and significance of evidence and due process.
Any statement by any party should be substantiated if possible. Evidence should be sought that will support and/or contradict statements made by the victim, the accused or witnesses. The goal is not to prove the investigator’s feeling that the claim is true or false, but follow the evidence with an open mind. The investigator’s “gut feeling” is inconsequential.
From the university’s perspective, the investigation will consist primarily of interviews. If a police investigation is being conducted, all physical evidence should be collected by the police.
If a police investigation is not being conducted, physical evidence should be collected and stored in a manner that will preserve its integrity in the event a police investigation is later initiated. That too requires basic knowledge of criminal investigations.
Conducting an effective and efficient investigation requires more than training in interviews and evidence collection. There are the intangibles such as the ability to sense deception. That comes from experience, not from the unproven art of reading facial expressions. Then, the investigator must know how to channel those doubts, not allow them to bias the investigation.
Speaking of bias, there are many cognitive biases – inherent flaws in our thought processes that effect how an investigator approaches an investigation.
For example, we have a natural tendency to believe an accusation more than a denial of guilt. An investigator must approach the statements of both the victim and the accused with equal weight and seek to prove/disprove the statements with equal effort. We tend to believe people we like, for no other reason than we like them. Liking them can be for no other reason than they remind us of ourselves. Investigations can be seriously compromised by subconscious, yet damaging thought processes. The ability to see past cognitive biases is based on training, experience and self-discipline.
Fortunately, because the investigator is an imperfect person, the investigation is not the final word. Due process demands that an independent body review the evidence and allow both the victim and accused to present their case and respond to the evidence. A thorough and detailed investigation should stand up to scrutiny and cross-examination. With exception (e.g. attorney-client privileged communication), all evidence should be shared with the accused. The accused should be allowed to challenge evidence. Giving the accused opportunity to respond to the evidence reduces the chance of a decision being overturned by a court.
The issue is not limited to schools failing to properly investigate allegations. On the opposite end of the spectrum, there is a current growth of lawsuits brought by accused males claiming they were disciplined after being denied due process. This is when the balance becomes so difficult. How do we protect the victim legally, physically and emotionally, while not violating the rights of the accused? We must remember that an accusation, no matter how credible, is not a finding of guilt. Both the accuser and accused have rights that must be respected.
Notably, on July 07, 2015, in the matter of Doe vs Regents of The University of California San Diego, Case Number: 37-2015-00010549-CU-WM-CTL, Judge Joel L. Pressman’s Minute Order stated under FINDINGS, “While the Findings are flawed, they generally support the conclusions reached.” That statement may lead one to believe that the University substantiated its findings against student, John Doe. However, Judge Pressman continued, “The problem is whether the findings are supported by the evidence.” That statement is most telling.
An agency can easily justify its findings by the terminology used – ambiguous statements such as, “The evidence leads us to believe….,” or “We conclude that the evidence justifies a finding….,” or “The witness was not credible.”
These broad statements are similar to a problem I have observed in the claims of wrongful convictions I am reviewing. Affidavits by police officer affirm that probable cause exists because, “I determined that probable cause exists…” A statement does not make something true or accurate; there must be identifiable evidence to support the conclusion drawn. And, the conclusion must be based on a fair, unbiased and reasonable interpretation of the evidence. What is reasonable? When asked to assess the reasonableness of a police officer’s use of force, my response always includes the reference to “…as seen through the eyes of the police officer at that time.” So too must the reasonableness of the evidence be weighed by individuals trained and skilled at doing so.
Because of recent successful lawsuits brought by those accused of sexual assault, the standard of fair preponderance is now being challenged.
I question the efficacy of the fair preponderance standard. Many times, the allegations will be one’s word against the other. Credibility may be the only factor weighing in one party’s favor. However, judging credibility sans evidence is unreliable. We cannot know what is going on in a person’s mind. We cannot understand their reactions to stress, accusations or questioning and we should not interpret those responses and demeanor from our own perspective and judge what is “normal.” I understand the frustration of victims who cannot get justice based solely on “their word.” That can lead to disrespect and a loss of confidence in the system. But so too does judicial and/or administrative decision making based on anything other than evidence.
Trained and experienced investigators will unearth more evidence and reduce the occurrence of hearings based solely on word-vs-word.
Recommendations for IHEs:
- Sexual assault investigators must have qualifying law enforcement experience.
- All investigators and triers of fact receive mandatory training in understanding and assessing evidence.
- Audit Sexual Assault Response Plan independent of Title IX or Clery Act audits.
- Standards of proof to be implemented:
- Preponderance of Evidence – for imposing sanctions not resulting in irreparable harm (e.g. change of schedule or housing; short term suspension.)
- Clear and Convincing Evidence – for imposing sanctions that will reasonably result in irreparable harm (e.g. long term suspension or expulsion.)
This multi-tiered solution will provide IHEs with more latitude to take disciplinary action while avoiding allegations of bias or failure to adequately respond to allegations.
Justice is served by finding the truth and facing the truth.