7 Tips for Enhancing the Quality of Sexual Misconduct Investigations in Universities
Sexual violence is an endemic societal issue that predominantly affects women. It is one of the major deterrents to achieving equality between the sexes. Victims of sexual assault can suffer significant physical, psychological, emotional, and financial consequences, sometimes lasting their lifetimes.
The issue of sexual violence within the Higher Education (HE) sector has received increasing attention and scrutiny. Recent headlines are shining light on a disturbing reality. Many staff involved in responding to sexual misconduct still feel paralysed and unempowered to take steps that protect those involved due to the lack of specialist training, clear guidance, and robust processes. We must acknowledge that response staff carry a high level of risk because of this and must take high risk decisions due to the increased risk of harm to those involved.
Allegations of sexual assault harm the chances of educational success for both the reporting and responding students. Thus, "getting it right" in such cases is crucially important regarding examining evidence, interviewing parties and witnesses, and final decision-making. There are many myths about sexual misconduct that, if not corrected, damage these fact-finding missions. Indeed, if not done correctly, investigations may do more harm to all those involved, which can also impede the universities’ ability to promote a safe atmosphere and its overall reputation.
I have been on a mission for the last 3 years to tackle this important issue, working with leading academics, researchers, and practitioners to develop a toolkit and training programme for staff by equipping them with the requisite knowledge and skills on handling these highly complex and sensitive cases.
Here are my 7 top tips to enhance the quality of HE sexual misconduct investigations:
1. Use trauma-informed investigative strategies
Stay informed about research on the prevalence and demographics of sexual assault, neurobiology of trauma, impact of trauma, likely responses to sexual assault by reporting and responding parties, and use of alcohol/drugs in sexual misconduct. This will equip you to investigate such cases more effectively.
Let’s dive into some of the details on how you may achieve this:
Normalise their response
Understanding the science leads to having more realistic expectations about how individuals respond during sexual assault and the effects of trauma on their encoding and storage of the events in their memories. You are then able to normalize the response during the interview, potentially reducing the reporting party’s possible feelings of guilt.
You could say things like “It’s ok you are feeling this way, this is a completely normal response to a traumatic event”. Explaining that what they described to you are common human responses of such events can also enhance rapport building – an essential element for a successful investigative interview. This is distinct from the “belief” in what they say, as at this point you are remaining open to receiving facts.
Recognise certain states
Being cognisant of the neurobiology of trauma means you can recognize certain responses for what they are and not as failures to act rationally or effectively. For example, being aware of tonic and collapsed immobility means you can detect signs of these and know how and when to delve further with the interviewee about their thoughts and experiences during those states. Understanding dissociation means that you will not be surprised by missing aspects of the memory. Also, you will not be surprised that someone can engage in sexual acts on autopilot, without consent.
Better grasp of these concepts allows you to collect thorough information about possible freezing responses, impaired reasoning, habit behaviour and survival reflexes- which have been misunderstood and occasionally misinterpreted as evidence that misconduct did not take place.
Engage with feelings before facts
Trauma may affect the way the memory is encoded and stored in the brain. Consider the following:
Avoid pushing for timelines or peripheral details and focus on eliciting information about central details.
Ask sensory questions to elicit the most reliable and comprehensive account possible and aid memory retrieval.
Be cognisant that they may not be able to recall contextual (who else was around, what was happening in the periphery), temporal (the time may speed up or slow down) or spatial (they may have difficulty estimating distances for instance) details of the incident.
2. Honour your responsibility to both the responding and reporting party
HE investigations are characterised by unique challenges because they hold legal and ethical duties to both parties, such as when they are both either students or staff. Universities have a duty to believe the reporting students and at the same time treat the responding students as innocent until proven otherwise. However, it is not your job during the investigation process to believe anyone, but to keep an open mind and to gather all the relevant information on the case in an ethical and non-judgemental manner.
Reducing unnecessary stress on the parties during interviews and the investigation process is key. Consider that trauma may play a part during the responding party’s interview.
Therefore, avoiding a simplistic view on assessing inconsistencies from both sides is crucial. Consider this:
Expect to encounter omissions and inconsistencies in both accounts related to anxiety or discomfort, or the retrieval of traumatic memories.
Inconsistencies and fragmented recall should not automatically serve to undermine a reporting party’s credibility. Do not take inconsistencies as evidence that something did happen, but also do not dismiss it happening due to inconsistencies.
Truthful memory recall has been shown to include the natural omission or subsequent recollection of details. Thus, inconsistencies should not automatically serve to undermine the responding party’s credibility.
Credibility assessment should be conducted in a holistic manner, considering other factors such as corroboration, motive, and recollection. Also, it is not just about the credibility of the interviewee, but also the reliability of the information we collect.
3. In interviews with the reporting party, cover the incident topic first, before exploring pre/post incident topics
Recognise that shame, blame, and guilt are common feelings for survivors of sexual assault. The discrepancy between what people believe they would do if they were in that situation and the reality, creates challenges for investigations–– reporting party’s-guilt is one such challenge.
Guilt can have implications on disclosure as reporting parties may attempt to conceal and/or alleviate their guilt by omitting information from their disclosure or modifying information. To reduce the likelihood of omissions, structure the interview to cover the incident first before exploring pre-incident topics.
4. Overcome cognitive traps
Confirmation bias (sometimes referred to as tunnel vision) is the tendency to grab onto “facts” and information that confirm your take on the case and to reject or disregard/minimise/place less weight on “facts” and information that do not.
Whilst this may be a concept most of us are familiar with or are intellectually aware of, unless we have a methodology that compels us to think along alternatives lines, the unconscious simplification processes (such as confirmation bias) become simplification traps.
As human beings, we all make assumptions. It is important when picking up a case for investigation that you consciously and continuously challenge your own assumptions. Any presumption of guilt or other bias toward one party can set in motion confirmatory processes leading to biased collection and interpretation of evidence. Avoiding preconceived ideas about what happened is a basic requirement to good interviewing.
Good interviews are always hypothesis testing as opposed to hypothesis- confirming.
Questions that protect us from confirmation bias:
Where can I be wrong?
What am I not seeing?
Who else should I speak with?
5. Interviewee-centred approach: How to meet the reporting party's needs within the confines of your role
A survivor most needs safety, control, trust, understanding, and compassion. However, a professional investigative interview is often characterised by uncertainty, asymmetric communication, pressure, and stress. How we handle these challenges as professional interviewers determines the outcome of the interview. Some ways to meet their needs:
Address immediate concerns first to reduce cognitive load and free up cognitive capacity for the difficult task of remembering.
Value their initial disclosure, they’ve shown an incredible strength to submit that to you.
Reduce asymmetry and create predictability by clarifying the parameters of the interview (what you will talk about and how).
Establish ground rules or a meta-contract with them from the start. This creates predictability and security (for example rules about “don’t understand”, “can’t remember”, “don’t know”, “don’t leave anything out, don’t decide if something is important or not, leave that to me”, “take your time”, “no need to rush”, etc).
Explain you have training in listening to the type of story the interviewee is going to share, that you are prepared to absorb all types of information and are used to addressing difficult details (in the event they try (consciously or unconsciously) to save us from hearing the most dreadful elements of the experience).
Give them control to state what occurred in their own way, as a narrative without interruption.
Even giving simple options and choices, for example if they want a drink or letting them choose when to take breaks, where to sit, can be experienced as compassionate and empowering.
The way you conduct the meeting will impact the interviewee’s trust in you as well as, where relevant, their path towards healing. Also, the tips above (except b and e) are applicable and encouraged when you interview the responding party.
6. Avoid victim-blaming questions
The phrasing of questions is important as depending on how the question is asked and the language used, it may be perceived by the interviewee as blaming them for their actions or for what they may be unable to recall.
Avoid:
Questions that start with ‘Why’ (i.e., “why didn’t you leave”, “why didn’t you scream”, “why didn’t you fight”).
Directives like ‘Explain...’
Requests for chronological accounts with prompts such as “and then what happened”.
Try this instead:
Beginning with questions such as “would you like to tell me what you are able to about what happened” sets a supportive tone.
Focus on the actions they took and in their own words (e.g., "reporting party said that they were 'frozen'", "reporting party said that they started to cry") rather than actions that they did not take (e.g., "reporting party did not resist").
Instead of ‘Why’, use questions such as, ‘What did you feel might happen if you tried to get away?’
Instead of “Explain…” you can use questions such as “Please could you elaborate on….”, “Please could you tell me (more)”
Explain the reasoning for questions that may be perceived by them as victim-blaming. For example, if there is a valid reason for needing to know details of their clothing, for instance, for the purposes of allowing for an easier identification on CCTV footage, it is key that you let them know this.
7. Take into account all unique circumstances of the case
Each case is unique and should be treated this way. Investigators must keep an open mind and actively listen to build a holistic picture. The earlier information and tips are useful for considering how we may interpret or collect information in light of scientific knowledge about how trauma and the brain work, so that we can challenge preconceptions and biases about how victims do and should behave.
However, this knowledge must not be used a blanket explanation for all reporting parties’ behaviours and memories. As investigators we have a moral and ethical duty to spend as much time, energy, end effort in looking for evidence that both supports and contradicts the allegation/s.
If you are tasked with investigating an allegation of sexual misconduct on campus, learn more about the challenges in these cases, and the myths and biases to avoid. Ask for specialist training or decline taking the case if you are not adequately prepared or supported to do so. It is all our responsibility as higher education professionals to learn more and ensure a fair investigation takes place to better the experiences for our students in these situations.
Suggested further reading:
Shepherd, E. and Griffiths, A. (2021) Investigative Interviewing: The Conversation Management Approach, 3rd edn (Oxford, 2021; online edn, Oxford Academic, 21 Oct. 2021)
Rachlew, A. et al. (2022) A guide to the professional interview: a research-based interview methodology for people who ask questions, Anthem Press, London
Humphreys, C., and Towel G (2023) Stopping Gender-Based Violence in Higher Education, Routledge
About the author
Ioana joined St George’s, University of London in January 2023 as Head of Student Conduct and Compliance and is responsible for the management and on-going development of the University’s strategy, policy, and procedures in relation to student disciplinary and fitness to practice. Ioana is in charge of sourcing, developing, and delivering training to new investigators and panel members and sits on the university’s Sexual Misconduct Working Group. Prior to this, she worked for over 8 years at University of Surrey in different roles, with over 7 years’ experience in student casework, being part of the University’s elite pool of investigators for the most complex student and staff cases, including sexual misconduct.