Internal Investigations and #MeToo: General Principles
One side effect of the #MeToo awareness has been an uptick in belated claims of child abuse. I have had numerous clients call me with reports that an adult has claimed sexual abuse at the organization many years ago when he or she was a child. Sometimes the claim comes as part of a new lawsuit, in which case the lawyers and court system handle the allegation. Many times, however, the disclosure comes before any suit, or long after the statute of limitations has expired, in which case my clients simply want to know the right thing to do.
There are many issues to consider and each situation is different. There are some general principles, however, that apply to every historic claim of abuse.
Develop a Plan, and Don’t Delay
Abuse allegations are serious and need to be addressed right away. Don’t accept an arbitrary deadline that will rush the investigation, but work as quickly as possible. Get your team in place and develop a plan for the investigation. Decide what evidence you need to review, where to find it, and whom to interview.
Also decide as quickly as possible which interim measures you need. For example, if the accused adult still works with the organization, you must restrict his or her access to students, whether that means a suspension of employment or temporarily revoking volunteer duties. You also need to restrict his or her access to the computer system, organization records, or other sources of evidence.
Put Your Team Together
The first step is to decide who will be on your team for the investigation. Sexual assault claims rarely are small enough for one person to handle alone.
Third-Party Investigator or In-House?
The first question is whether to hire an investigator or assign the investigation to an employee. It is inevitable that someone will be unhappy with the conclusion of an internal investigation, and one easy charge will be that the organization was biased. An accuser may say that the organization simply wanted to cover up the wrong-doing, or an accused staff member may claim that the organization sacrificed him or her to save its own reputation.
Hiring an outside professional can neutralize these claims. Yes, the organization is paying the professional, but independent lawyers and investigators have their own reputations and ethical obligations to consider. Those obligations transcend any duty to any particular client, and help the investigation start out on an unbiased note from the beginning.
Sometimes, however, the budget simply will not handle an outside attorney or investigator. In those situations, the organization must be even more careful about avoiding any appearance of bias or prejudging the situation.
Attorney or Investigator or Both?
If there is any potential for a lawsuit, then you need a lawyer somewhere on the team. There is simply too much risk that a misstep will hurt your court case. Having an attorney direct the investigation also gives you some protection for communications and investigation that you will not have with a non-lawyer investigator.
Not all lawyers have the experience and skill necessary for an investigation. You may need an experienced investigator to conduct interviews, or even locate former students or staff. Decide early on what you need and what your budget can accommodate.
Public Relations Professional
If the claim already is public knowledge, or might become public, try to find the budget for a public relations professional to help you handle the fallout. The Twitter tribunal has no judge and no rules, so you need an experienced person to guide you.
Do not rely on your attorney for PR advice. Most of us are lousy writers, and very few of us know anything about crafting a public image. Certainly, ask your attorney to review any public statements for legal pitfalls, but recognize the limits of our knowledge. We can tell you how to make our job defending you in court easier, but we don’t know much about how our legal advice will impact your organization. You are the person who can see the entire problem and has the job of protecting the organization on all fronts, not just the courtroom. Keep lawyers in our lane and don’t let us claim a skill set that few of us have.
Someone from the organization needs to be part of the team in order to help gather evidence and arrange interviews. To keep the proceedings as confidential as possible, however, limit how many people are privy to the details of the investigation. Sometimes administrators or Board members want frequent reports about the investigation. Resist giving any details, particularly about witness interviews, before your final report. You don’t want to create an appearance that you are taking instructions from interested parties. If necessary, keep the organization’s representative in the dark about details such as what witnesses have said, so that he or she doesn’t face inadvertent pressure from a supervisor.
Don’t Prejudge the Situation
Do not start your investigation with a bias in any direction. The slogans “Believe All Women” or “Children Don’t Lie” are intended to counter historical prejudice against victims, but they carry their own danger of bias. Start with a clean slate and view the evidence objectively. Wait until you have examined all of the evidence and interviewed all of the witnesses before you start forming conclusions. Otherwise, you may start viewing the evidence through the filter of your early conclusions and miss contrary facts.
You also need to avoid even the appearance of bias. For example, an in-house investigator should never investigate allegations against his or her supervisor. Be aware of family, business, or social ties that could create the appearance that your investigation was less than thorough or objective.
Treat Everyone with Respect
You must treat the accuser and the accused and every witness with respect and professionalism. Listen to their complete story. Sometimes, you may need to press them about details or apparent inconsistencies, but a good investigator can do that without skepticism. No matter what the final conclusion of an investigation, both the accuser and accused need to feel that they have been treated fairly and their story completely heard.
Preserve Confidentiality and Safeguard Reputations
You must control your information and keep it confidential. Don’t distribute documents (such as notes of witness interviews) or other evidence. For example, keep only one copy of the final report in a locked file, and do not give each member of the governing Board an individual copy.
Sexual abuse allegations are incendiary, and people who know about the claims will quickly take sides. If gossip spreads far enough, your final report will be irrelevant. Do what you can to keep the allegations and investigation confidential, and to protect the reputations of both the accused and accuser. Nothing will undermine the credibility of an investigation faster than allowing it to undermine reputations unfairly.
Investigators are Not Decision-Makers
Finally, remember that investigators only investigate and present what they have found. They should not recommend any specific personnel action, unless you are already involved in or threatened with litigation. In that case, your attorney will advise you about how best to defend the suit. In most cases, however, it will be your decision what actions to take based on the investigator’s report.
These investigations are difficult and heart-rending. We must handle them professionally and be fair to all parties. Anything less simply continues and magnifies the trauma.
Disclaimer – The information in this blog post is for informational purposes only and does not constitute legal advice. No attorney-client relationship has been or will be formed by any communication(s) to, from or with the law alert or author. The opinions expressed are those of the author, and decisions relating to the content belong to the author.
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