TITLE IX OF THE EDUCATION AMENDMENTS OF 1972
20 U.S.C. §§ 1681
‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.’
That is Title IX. There are more qualifications, amendments, subsections, and exceptions, but this is Title IX. Although this sentence, and Title IX itself, is often used as a rationale for action taken, or not taken by universities it is important to recognize that the violation that institutions could find themselves responsible for can come from other entities. Directives from a White House Task Force, the Violence Against Women Act, the Campus SaVE Act, the Dear Colleague Letter, and so on and so forth are changing he way in which colleges and universities are addressing reports of sexual assault, domestic violence, stalking, and all other violations and criminal acts based on sex and/or gender.
In response to our university being very aggressive in facilitating a top to bottom education and response plan, I have had the opportunity to work with some amazing people in developing our response protocol. From immediate safety to adjudication, we worked hard to come up with a plan that went beyond satisfying federal mandates. We wanted to be proactive and make a difference to all students.
Recently this meant participating in a training geared at addressing different ways in which we should be investigating all reported cases of sexual misconduct. I wanted to share some of the lessons learned with all that are interested in hopes that as further strategies arise, there can be open dialogue about how best to get to the truth.
Lesson #1: The goal Is to find the truth. What factually happened. Be ok with different interpretations of the same event. Those adjudicating the case will review the interpretations and weigh all opinions appropriately. As we investigate, we must focus on the factual aspects of the event. Facts do include emotions and feelings of those involved, just not yours as an investigator.
Lesson #2: When interviewing the victim, build rapport and express empathy. Victims should never be treated as witnesses to their own crime. Ask what they remember and understand that the physiological impact that the trauma may have caused. They may remember things in pieces or snapshots and that is ok. Ask open ended questions such as “What are you able to remember about the experience” and “What was that like?” Always about what they were focused on and what they remember using each of their senses. A smell or a sound can be as powerful a trigger to the victim as any other interaction.
Lesson #3: No matter what question you ask, once you do just sit in silence and let the victim talk. It can be for a minute or an hour. Let them go in whatever direction they want to go. You can ask follow up questions later. Allow them to share their experience as they perceive it.
Lesson #4: When interviewing the alleged, remember that the investigation should not be an interrogation. As we investigate it is only human to become emotionally invested in the case and those students involved with it. That must be put aside. We should not act as though we need to prove that something did or did not happen. Do not take sides.
Lesson #5: Be aware of Russell Strand and his Three Personas theory. According to Russell Strand, retired criminal investigator and leader in the investigatory field as it relates to allegations of sexual misconduct, all people have three personas.
- Public Persona: Acting the way you want others to perceive you
- Uninhibited Persona: What you act like when friends and family are around. What they see in you
- Private Persona: The skeletons in your closet. This is where fantasies reside, where deeds people do or think about doing reside, but you don’t want anybody to know.
Lesson #5 (continued): Try and connect to the individuals Private Persona. When speaking with the accused, you want them to disclose things to you that they wouldn’t to their closest friend or family member.
Lesson #6: Understand that the accused may feel like a victim, so treat them like one. Not in the sense that you dismiss or approve of the events that took place, but respect their position no matter how inappropriate you feel it may be at the time.
Lesson #7: Approach the conversation with a sense of curiosity instead of seeming to be on a direct fact finding mission. Avoid Yes/No questions. Instead of asking “Was it consensual sex,” ask “How it was like for you?” Be ok asking intimate questions. Things like “What was the most difficult part for you” or “Tell me more about that” are ways to engage the individual in the conversation. Acknowledge their pain. Ask about what they were thinking and feeling before, during, and after the event.
Lesson #8: Don’t write anything down at first when you talk to individuals involved. By writing things down you are forced to not only take your eyes of the person, losing insight to their reactions to certain questions (see Lesson #9), but you also show them what details you are focusing on. Keep eye contact and let them take the conversation wherever they want it to go and then follow up with the note taking as you ask clarifying questions.
Lesson #9: Be aware of body language. Now let’s be real. Although we have all seen TV shows that talk about micro-expressions and how that may give away whether or not something is truthful, the reality is that unless you are a specially trained agent with the FBI or some other law enforcement agency we will not be able to pick up on any of these tells. What we can do is recognize if the person is tense, hesitant, anxious, calm, etc. We can see if they are looking at the door for a way out or if they are engaged in the conversation. If you find a trigger, use it. Press when you need to and back off when you need to.
Lesson #10: An interview does not conclude an investigation. Utilize all of the resources available to you outside of the interview. Go and visit the scene. If possible at the same day and time of the event. You may notice things that happen regularly at that day and time that could offer up more insight into possible witnesses and/or what happened. Talk to people (be cognoscente of the perceived impact this may have on both parties because you do not want to make the event public). Check out social media sites. Look at posted events and see who replied saying they were attending. The point being that there is information everywhere and you should never limit your information gathering to the interviews.
I am sure that there are a great many more strategies people use when investigating these, or any, type of cases. Please feel free to add any ideas or suggestions in the comments sections below. Let us all learn from one another.