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.