College Administrators Simply Should Not Be Investigating Criminal Complaints: How They Are Doing It Is Not the Problem; That They Are Doing It Is the Problem

These are the opening paragraphs of an article written by Teresa Watanabe for the Los Angeles Times; the title of the article is “College Administrators Learning to Be Sexual Misconduct Detectives”:

“Butte College administrator Al Renville was never trained as a police investigator, but that’s close to the job he found himself in when two students had a sexual encounter off campus that led one to file a complaint with the school.

“Renville said his inquiry took at least 200 hours, cost $100,000 and awkwardly bumped up against a parallel police investigation.

“And because the accuser appealed the outcome to the federal government, the small college in the Sierra Nevada foothills suddenly found itself in the national spotlight, named as one of 55 colleges and universities under investigation by the U.S. Department of Education for their handling of sexual misconduct allegations.”

The complete article is available at: http://www.latimes.com/local/education/la-me-sexual-assault-20140515-story.html?track=rss&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A%20latimes/news/education%20%28L.A.%20Times%20-%20Education%29#page=1.

Here are a few of the core realities touched on in these paragraphs that many administrators have somehow not grasped and, despite their complaints suggesting otherwise, seem almost determined not to grasp:

1. There is a broad but fundamental difference between “sexual misconduct” and a “sex crime,” a difference that has been blurred or ignored, sometimes self-servingly and sometimes senselessly. “Sexual misconduct” is typically behavior that makes the victim very uncomfortable but stops short of stalking or being a physical assault on the victim. In contrast, a “sex crime” is a sustained pattern of intimidating behavior or a physical assault–some sort of sex act physically forced on the victim. “Sexual misconduct” is not a crime–it is by definition “misconduct” and not a “crime”– and will be covered by the policies and procedures defined in student conduct codes. In contrast, all “sex crimes” should be investigated from the start by police.

The case covered in this article clearly involved a criminal investigation by the police. So, the administrator, who “was never trained as a police detective,” simply should not have been playing one on campus.

Later in the article, Renville observes: “’What’s frustrating for college administrators is that we are not a police entity. We have no subpoena power, no way to compel testimony, no forensics ability.’” –Exactly.—“’But we are responsible for investigating these cases and ultimately to make recommendations.’” –Not exactly.–

Although there have been some shifts in the federal guidelines on how to handle these cases, I think that there is a more fundamental misunderstanding, among many administrators, of what administrators are responsible for doing in these cases.

2. Watanabe reports that Renville’s “inquiry . . . awkwardly bumped up against a parallel police investigation.” That awkwardness occurred precisely because, until the police investigation had been concluded, he, and everyone else at the school, should have done nothing beyond taking some reasonable precautions to protect the accuser while avoiding any public stigmatization of the accused.

To be clear, there should have been no need for a parallel inquiry. Indeed, any parallel “inquiry” to a police investigation of such a case is almost inevitably going to complicate, if not taint, the police investigation. Indeed, it would seem almost inevitably to amount to an obstruction of justice.

So, there is, instead, a need to base the institutional response on the results of the criminal investigation, an approach that has the added benefit of offering some protection against subsequent lawsuits by either the accuser or the accused.

3. The fact that the institution became the target of a lawsuit that brought it to national attention might not have been avoidable even if everyone at the institution did everything right. But the way in which the accusation seems to have been handled made a lawsuit much more likely, if not inevitable.

In these kinds of criminal complaints, there are always issues about the credibility and motives of the accuser and the accused. Administrators have, in effect, added another layer to the complications—the credibility and the motives of the institution and its leadership—that may make a marginally prosecutable case completely unprosecutable.

I am sure that there will be some complaints from administrators that I am underestimating the challenges that they face in attempting to deal with these cases. But it’s not as though there are no precedents for this sort of institutional meddling in and muddling of sexual assault cases.

There is, of course, the very long-running precedent in the Catholic Church’s mishandling of decades of sexual-abuse accusations against priests. Granted, in those cases, the accused priests were adults and most of the victims of the sexual abuse were children and adolescents, whereas in most of the cases of sexual assault on campuses, both the accusers and the accused have been young adults.

There is, however, also a very recent precedent in how the military has mishandled sexual assault cases. and in almost all of these cases, the accusers and accused have been adults and often young adults. Granted, the parallels between the military and campus cases have been complicated by the fact that the military justice system is distinct from the civilian justice system and seems not to take into account some very obvious conflicts of interest that may be inherent in the chain of command and authority to adjudicate the cases.

Still, despite these differences in the three crises involving the institutionalized minimization of accusations of sex crimes, there does seem to be a broad parallel in the motives of many of the the bishops who reassigned the pedophile priests rather than turning them over to the authorities, of many of the military officers who have treated rape accusations as relatively minor disciplinary issues, and of many of the administrators who preferred to handle the sexual assault cases internally. Without making any undue assumptions about any individual’s motives in any specific case–and certainly not about the case covered in Watanabe’s article–in all three arenas, the main concern among many, if not most, of those who have tried to make these cases “go away” seems to have been the mitigation of anything unsavory that might possibly taint their professional records and in any way derail their professional ambitions–rather than to mitigate the immediate and long-term impact on the victims, as well as to reduce the likelihood of future victims.

Although there seem to have been very few if any cases of priests being falsely accused of being pedophiles, there is the added issue in the sexual assault cases in the military and on our campuses that at least a few of the accusations may be somewhat ambiguous, if not dubious. But, not allowing the criminal justice system to function without any institutional interference will only add to any ambiguity. And, in many instances, the interference, even when well-meaning, has actually turned very manageable, if difficult, situations into institutional debacles.

In sum, I would think that it would be very clear that the most prudent course of action–professionally, as well as ethically—would be to allow all accusations of sexual assault to be investigated formally by law enforcement and then to base the on-campus adjudication of the cases not found prosecutable on the facts confirmed by those investigations. Student (and faculty) codes of conduct give institutions considerable leeway to mitigate behavior that is deemed troublesome but not criminal. But if institutional decisions on cases that might have been investigated but not prosecuted as criminal complaints are not based on professionally gathered and documented evidence, the institution is creating its own legal liabilities and its own public-relations nightmares–and ultimately not serving anyone’s interests, including its own, effectively.

 

 

7 thoughts on “College Administrators Simply Should Not Be Investigating Criminal Complaints: How They Are Doing It Is Not the Problem; That They Are Doing It Is the Problem

  1. I strongly disagree with the notion that colleges should never investigate a case until the criminal case is concluded, despite all the complications. There’s a very simple reason: the wheels of justice move slowly, and sometimes don’t move at all. By the time that an investigation is completed and trial concluded, many suspects will have graduated. Do you want rapists and murderers freely walking around campus without penalty? And until overwhelming evidence is compiled, the case will remain open and incapable of campus punishment.

    The biggest problem is that colleges have encouraged students to pursue campus-based discipline rather than criminal prosecution. If you ban campus discipline in any case where there’s a criminal complaint but no resolution, then you create an even greater incentive not to report a crime to the police if (such as rape) it’s not likely to be prosecuted. The only alternative would be to prohibit campus discipline for anything except purely academic crimes like plagiarism. I think that’s a bad idea.

    • You seem to have missed or ignored the distinction that I made–and that many institutions have failed to make–between “sexual misconduct” and “sex crimes.” I have not argued anything close to the idea that campus discipline should be confined to academic matters such as plagiarism. There are many troublesome behaviors that can be mitigated by institutionally sanctioned discipline.

      I also agree that the criminal-justice system often moves slowly and has often bungled cases involving sexual assaults (even more so than other kinds of cases), but I do not agree that institutional “investigations” ultimately help anyone.

      And my primary support for this assertion should be quite obvious: if institutions were in fact able to investigate and to adjudicate accusations of sexual assault more effectively than the criminal-justice system, neither the occurrence of such assaults nor the complaints about how institutions have terribly mishandled such cases would be as pervasive as they are now.

      As this issue has been getting more or more national attention, I have read and heard many rationalizations of why the current system exists, but I have not comes across any defense the current system in any of its specifics–primarily, I think, because it is hard to defend something that doesn’t work.

      The very sad fact is that crimes disrupt people’s lives, and the more terrible the crime is, the greater disruption it causes in the victim’s life. An institution can’t expedite some sort of “extralegal” handling of criminal complaints under the illusion or delusion that it is somehow mitigating that impact.

      The solution is for institutions to develop very precise protocols for managing, but not investigating or adjudicating, such cases while they are being investigated by law enforcement. Such protocols are the only way for a university to insure both the safety and sufficient support of the accuser and the rights of the accused.

      Some victims have called for institutions to provide judicial outcomes to such cases that are not available through the criminal-justice system. Although I sympathize with all victims of violent crimes but especially with victims failed by the justice system, I don’t see how that is possible. Colleges and universities are in some senses self-governing, and they often even have their own police forces, but they do not really have their own judicial systems. And even if they did, the military cases have demonstrated the limits of that alternative.

      Moreover, if an institutional decision will ultimately not stand up in court, the institution is going to find itself facing major lawsuits in court.

      At the risk of grossly understating what has occurred, the federal government has not been especially helpful in all of this; it has, in fact, contributed to the problem by issuing guidelines that sound more straightforward in conception than they almost ever are in practice. And now, I think, it is muddying things even further by accusing institutions of not doing more of the very sorts of things that have exacerbated, if not created, the issues to begin with.

      One element of this issue that I did not address in my post is that a university really has very limited mechanisms for protecting an accuser after it has imposed a penalty on the accused. There is, for instance, no real way of insuring that an expelled student stays off campus. So, in many instances–already documented by victims who have complained about institutionally mishandled cases–the victim is further victimized by the accused.

      Lastly, I suspect that the pattern of not handling accusations of sexual assaults through the criminal justice system has actually contributed to the notion that sexual assaults are something less than criminal.

    • Of course, there is the little matter of collusion among campus administrators, campus police, and local police (and yes, state and Federal authorities). Especially when an institution is the dominant and driving economic force in the town or region, it is unlikely that the town/city/state police will automatically “do the right thing.” For example, this has also become painfully obvious in the matter of heroin deaths on campuses or in fraternities, etc. For every incident reported, there is likely one or more that are hushed up.

      All that to say that in the end, where institutions are major players on the economic and political stage, the institution’s administration is likely to be calling the tune whether it is “officially” investigating or not. Does anyone seriously believe that only 55 institutions in the nation currently merit Title IX investigations by the DOED’s Office for Civil Rights? Where there is rampant drug and alcohol use/abuse, there are rapes — and there is an epidemic of drug and alcohol use/abuse on the nation’s campuses.

  2. Whatever Martin Kich may think of the wisdom of the actions taken by college administrators in investigating these cases, it is a simple fact that the law requires them to do so. They cannot defer to law enforcement, and they cannot use the same standards of evidence used by law enforcement. Yes, that creates all sorts of problems, including significant liability issues for universities, but such is a condition for accepting federal financial aid money. Kich’s complaint is properly with the Office of Civil Rights, not the universities. It helps nobody to have the AAUP publish such an ill-informed article.

    • Any ill-informed opinions expressed in my blog posts are entirely my own. Although I contribute regularly to this blog and attempt to present well-informed opinions in my posts, as the headnote to the blog indicates, the opinions are not necessarily representative of AAUP positions on the issues.

      Moreover, if Aaron, who manages the blog, or the AAUP staff were to believe that this piece, or any other, is very ill-informed, they would be very welcome to add a strong statement to that effect at the beginning of the post, or they could request that I remove it and I would comply.

      I freely admit that I am not an expert on Title IX. If you or anyone else is, I will gladly defer to and become more informed by your detailed explanation of the flaws in the legislation. As I stated in my reply to John’s comment, I think that there are considerable problems with the law and, more particularly, with the interpretation and application of the law. But I simply don’t accept–have seen no evidence whatsoever–that the fault lies wholly or even primarily with the Office of Civil Rights.

      I have been following this issue very closely over this past year and have written on it previously. Most of the institutions that made it onto the recent list of 55 seem to have discouraged investigations by law enforcement, either directly or, as “professor_at-large” has suggested in her comment, implicitly, and to have provided, instead, institutional investigations that have minimized the seriousness of the accusations. Or at the other end of the spectrum, a few institutions seem to have jumped the gun on ongoing criminal investigations and have gotten into legal trouble by coming to judgments not at all supported by the final evidence.

      I think that a college or a university is on safe ground if it encourages and actively cooperates with a criminal investigation, while having policies in place to protect and support the accuser while also preserving the rights of the accused, and then uses its conduct policies to adjudicate internally and appropriately cases that are not criminally prosecutable.

      And I believe that this is the case because, to my knowledge, no institutions that have followed that course of action have been the focus of advocacy pieces by former victims, investigative reports by journalists, or Department of Education investigations.

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