Investigating Campus Sexual Misconduct
An NCHERM Regional Seminar presented by W. Scott Lewis, J.D. and Saundra K. Schuster, J.D.
For years, campuses have sought models of resolution for campus sexual misconduct complaints that provide fairness, balance, and a measure of outcome satisfaction for the participants. We’ve tried adversarial hearings. Administrative hearings. Shuttle diplomacy. Mediation. Restorative justice. And, hybrids of each of these. For the most part, we’ve failed miserably. No one is ever happy. Justice is rarely done. Truth remains elusive. At best, we have tweaked our processes to minimize secondary victimization of complainants, but adding no further harm should not be our yardstick for success. Throw in the possibility of concurrent criminal prosecution, and the potential difficulties multiply.
Why can’t we get this right?
That’s simple. We’re trying to fit campus sexual misconduct into a student conduct/discipline framework like hazing, a roommate conflict, or some similar developmental challenge. With the wrong lens, you can’t take the right picture. Campus sexual misconduct is more accurately seen not as a conduct issue, but as a civil rights discrimination. When viewed through a civil rights and discrimination lens, the answer has been right there in front of our eyes for a long time. We resolve sexual harassment with an investigation model. We always have. And, very few people gripe about the process because it works. It’s humane, effective, efficient and can be integrated with relative ease into our current hearing and resolution models. We need to take a page from HR, and create a civil rights investigation model for addressing campus sexual misconduct. Civil rights investigation is not police-led investigation, and it is not the same as investigating a student conduct violation. It is a very specific, highly specialized skill-set. But, where do you to get the training you need in how to develop, implement and operate a civil rights investigation model for campus sexual misconduct? This event is designed for you.
This training will benefit you, whether you work in student affairs or student conduct and need a new model, or work in campus law enforcement or HR, and need to sharpen your civil investigation skills. In fact, anyone investigating any type of civil rights complaint will benefit from this training, including those investigating hate crimes, gender bias, racial, religious, ethic, and other discriminatory acts against any group or protected class. Prosecutors, sex crimes investigators, magistrates, victim advocates and judges are welcome too. Criminal justice authorities will gain insight into the campus process as well as picking up some investigation tips. Importantly, we’ll address the confluence of campus, civil and criminal processes, legal obligations that attach, and how we can all do our jobs cooperatively and collaboratively without obstructing each other.
9:00am – 10:15am -- A New Paradigm
• Comparative Resolution Models: Strengths and Weaknesses
o Adversarial/formal hearing models
o Informal hearing models
o Administrative hearings
o Critical Issues Boards/Sexual Misconduct Boards
o Shuttle diplomacy
o Restorative justice
• Meeting the aims of fairness, education, community protection, remedy and healing
• Introduction to the Civil Rights Paradigm
10:30am to noon -- The Civil Rights Investigation Model – Best Practices
• Who investigates?
o The investigation team model
o HR/Student conduct jurisdictional intersection issues
• Active v. passive accumulation of evidence
• Identification of witnesses
o Character witnesses
o Primary witnesses
o Secondary witnesses
o Expert witnesses
• Strategic investigation
o When to charge?
o When to question witnesses?
o When to question the respondent?
• Investigation best practices
o Feeling the flow of evidence
Noon to 1:00pm – Lunch
1:00pm to 2:30pm – Investigation Model Best Practices, Continued
• The Investigation Report
o Summarize your findings
o Tell a story and note gaps
o Make a finding on the question of policy violation, if the evidence suggests one
o Share your findings
• The Role of the Investigator
o In the hearing
o In sanctioning
o In remedial proceedings
• Hearing models and the Investigator
o Role as witness
o Influence on evidence
o Lying by witnesses
• The Investigation Model and Restorative Justice
2:45pm to 5:00pm – Mock Investigation
• Using a case study, participants will:
o Uncover evidence
o Follow the trail
o Question witnesses
o Conduct policy analysis
o Make a finding
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