MHA Title IX Investigations - 2012 Legal Issues in Higher Education

Title IX Investigations

Gary J. Margolis, Ed.D.Jeffrey J. Nolan, Esq.

© Margolis Healy & Associates, LLC

AGENDA

•Receiving Complaints

•Confidentiality

•Effective Investigations

•Components of effective training program


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Credit

•Thomas R. Tremblay, MHA Associate; Commissioner of Public Safety (fmr); Chief of Police (ret).

•Anne Munch, Prosecutor (fmr) (Anne Munch Consulting)


Title IX

Requires us to investigate all

complaints adequately, reliably and impartially


Receiving Complaints

Employees likely to receive complaints initially (e.g., medical, counseling, public safety, coaches, residence life, student affairs, etc.) must:

- Be trained to recognize reports of sexual harassment and sexual violence

- Know where on campus (and off-campus) to direct complainants for further support, procedures, etc.

- Understand limits on requests for confidentiality

- Understand what “not to say” in intake discussion


Receiving Complaints, cont.

At all intake levels, complainants should be told:

• Title IX prohibits retaliation

• Institution will take steps to prevent retaliation

• Institution will also take strong responsive action if retaliation occurs

• Complainant has right to file criminal complaint, before, during or after any institutional Title IX investigation


Receiving Complaints, cont.• Don’t require a written

complaint – verbal is sufficient (but written is preferable)

• Should investigate complaints received from third parties (e.g., parents, friends, etc.)

• Don’t assume it’s sexual harassment or sexual violence because that’s how it’s characterized by others. Review the information carefully.


Confidentiality Issues (Per OCR)

“If the complainant requests confidentiality or asks that the complaint not be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation.”

“If a complainant insists that his or her name or other identifiable information not be disclosed to the alleged perpetrator, the school should inform the complainant that its ability to respond may be limited.”

April 4, 2011 Dear Colleague Letter



If complainant continues to insist on complete confidentiality notwithstanding being informed of institution’s stand against retaliation, school “should evaluate that request in the context of its responsibility to provide a safe and nondiscriminatory environment for all students.”

Schools may weigh confidentiality request against:

• seriousness of the alleged harassment;

• complainant’s age;

• whether there have been other harassment complaints about the same individual; and

• the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an “education record” under FERPA



“In some cases, such as those where the school is required to report the incident to local law enforcement or other officials, the school may not be able to maintain the complainant’s confidentiality.”

“The school should inform the complainant if it cannot ensure confidentiality.”

“Even if the school cannot take disciplinary action against the alleged harasser because the complainant insists on confidentiality, it should pursue other steps to limit the effects of the alleged harassment and prevent its recurrence.”

(e.g.: education and prevention programs)


Requests for Confidentiality - Suggested Solutions

Determine why complainant is reluctant

• That others will know? Discuss the level of confidentiality you can offer

• Retaliation by Respondent or others? Discuss your institutional response to retaliation

• That a criminal investigation will ensue? Discuss complainant’s options regarding involvement in a criminal process (be careful not to make statements that dissuade)

Emphasize that the request for confidentiality may limit the institution’s ability to respond


If complainant requests confidentiality, conduct what review you can…

• Were there witnesses?

• Are you aware of other complaints involving this individual?

• Consider whether you can proceed fairly in some fashion if complainant’s identity is not revealed

• There will be significant constraints if complainant insists on confidentiality and there are no witnesses, etc., but always focus on what you can do. Increased training efforts would be one possible response in this situation.



Requests for Confidentiality – Suggested Solutions

• Let student know about campus resources that can offer a confidential “listening ear,” and offer to walk there with the student or have staff come over to your office to see the student

• Be clear that you care, the institution cares and when the student is ready for the institution to act, to please come back to talk with you


• Give the student a copy of the applicable policy, procedures and your card

• Document any communications re not investigating: this must be done carefully to avoid the appearance of sweeping under the rug



Goal of Investigation

Coordinated

Compassionate

Objective

Thorough


Experience has taught us…

•Sexual violence myths, misconceptions and victim blaming impact the pursuit of justice… (Victims)

•No higher false reporting rates for sexual and gender violence than any other crime…

•Sexual violence is the most under reported violent crime…

•Most sexual violence is often committed by someone the complainant knows and trusts…


Experience has taught us . . .

•Understanding victim trauma; there is no “normal” victim response…

•Delayed reporting, inability to recall details and sequence of events is common as a result of victim trauma…

•Most sexual assaults do not result in injury


Experience has taught us…

•Sexual Violence myths, misconceptions and victim blaming impact the pursuit of justice… (Offenders)

•Offenders target vulnerable victims; who are less likely to report or to be believed…

•Offenders use alcohol and other factors to attempt to discredit the victim…

•Offenders use control and manipulation of victim, witnesses and investigator…


Experience has taught us . . .

•Offenders plan their crimes and their response to questioning…

•Sexual offenders are repeat offenders who often commit interrelated crimes; sexual harassment, stalking, intimate partner violence…


IMPARTIAL INVESTIGATOR

• No malice, no bias, no conflict of interest

• Consider giving the parties an opportunity to object to the investigator

• Use a different investigator if you feel there is a possible or actual conflict

• Per OCR, should not be Title IX Coordinator or college/university attorney, which could present a conflict of interest

• Per OCR, should have adequate training or knowledge regarding sexual violence

• Per OCR, do not rely on police or insurance investigations. The institution needs to conduct its own review


Use what we know about the realities of sexual violence, victim trauma and offender behavior as the foundation of your investigation

• Start by believing…

• Victim centered services approach

• Focus on offender behavior and background

• Let the evidence determine the truth

Sexual Violence Investigation


Preparing to Investigate

•Hire knowledgeable and experienced investigators, or develop them from existing staff

•Ensure investigators understand their role as neutral parties, not advocates

•Ensure investigators have regular contact with the Title IX Coordinator


Effective Investigations

6 “Musts” for Effective

Investigations



• There is no “normal” victim response

• Most victims do not physically resist

• Most victims who report do so after some delay

• Most victims have difficulty remembering all the details or sequence of the sexual assault

• Victims experience trauma reactions on an ongoing basis after the assault

• We can use expert witnesses (through training) to explain impact of trauma

I. Recognize impact of trauma on investigations



• Victim’s first impression matters…

• Build rapport/trust with the victim, reassure…

• Work with and maintain relationships with advocates

• The recipe for a bad investigation is to form a hypothesis and try to prove it (my “gut” tells me…)

• The strategy for a good investigation is to examine all the evidence and let it take you to the truth

• Always approach a case believing that “something” occurred, victims are sensitive to this

II. Understand Victim’s Reluctance to Report



• Physical evidence: exam, photos, digital forensics/social media/hidden recordings, etc

• Witness accounts from before and after assault

• Outcry witnesses (person who first hears an allegation)

• Stalking or abuse behavior

• Documentation of sensory and peripheral details from the victim’s perspective - What did “no” look like? What did fear feel like?

• Follow up to see the effects of ongoing trauma in victim’s life

III. Corroboration of details is essential



• Investigate offender’s pre and post assault behavior

• “He said, she said” becomes “He said, they said”

• Why did he choose/target the victim?

• How did the respondent manipulate the environment and circumstances to get the victim into a position of vulnerability?

- Role of alcohol or drugs

- Chosen location for the assault

- Grooming behavior

- Contrived circumstances

IV. Focus on offender behavior - not victim behavior



• Investigate the offender’s history/background

• Investigate his social circles for “similars” (other victims, interrelated crimes)

• Social media, pre and post assault messages & calls

• Use of “pre-text” phone calls/text message (warrant )

• Forensic exam of suspect

• Develop suspect interrogation strategy (tie in offender behavior, background, sexual violence awareness prevention… consider apology letter)

V. Investigate the offender



• Goal of investigation is to be objective and thorough

• While every case is different, investigations must be consistent and thorough (Policy)

• Detailed case documentation/report writing

• Supervisory review of all cases

• Multi-disciplinary case audits, after action review

• Seek expert guidance/testimony when uncertain

• Pursue Justice & Fairness…

VI. Thorough Documentation


Investigator Training Programs

•Nature of Sexual & Gender Violence

•Victimology/Offenderology

•Understanding Title IX

•Consent

•Investigative Strategies

•Interviewing Techniques (Victims/Suspects)

•Alcohol & Other Drugs


RECAP

•Receiving Complaints

•Confidentiality

•Effective Investigations

•Components of effective training program


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