Are Abuse Survivors Best Served When Institutions Investigate Themselves?

By Boz Tchividjian
Religion News Service
October 16, 2015

http://boz.religionnews.com/2015/10/16/are-abuse-survivors-best-served-when-institutions-investigate-themselves/

In the past years, we have heard many faith-based institutions announce the launching of independent investigations to address issues of past sexual abuse that have publicly surfaced. Whether it’s academic institutions, mission organizations, churches, or denominations, the term “independent investigation” has become almost fashionable.

When an organization is confronted with public allegations of child sexual abuse within their ranks, it finds itself under a bright spotlight as the watching world waits to see how it will respond. All too often, the overriding institutional concern has very little to do with caring for the victims, but everything to do with protecting its reputation by doing everything it can to shut off the spotlight. This is often accomplished by announcing that the institution will launch an “independent” investigation. The organization proceeds to hire a private investigative group or law firm to investigate the matter with the hope that this process will calm everyone down and eventually turn off the spotlight. Because the motivation for this process can be based upon institutional self-preservation, many investigations labeled as “independent” are nothing more than “internal” investigations in disguise. An internal investigation allows the institution being investigated to stay in the driver’s seat, while an independent investigation requires that they get into the backseat with everyone else.

Institutions faced with this critical decision have to decide what is the ultimate aim of such an investigation. While an internal investigation offers an institution the opportunity for self-protection, an independent investigation offer an institution something far more profound. It offers the institution an opportunity to understand where it failed in order to demonstrate authentic repentance to those who have been hurt, and to make the necessary changes so that the same offenses are never repeated.

It is up to the watching public to make sure that these institutions are not misleading victims, witnesses, and other interested parties regarding the true nature of the investigation. Disguising an internal investigation as independent ultimately exploits and hurts abuse survivors who are told they are engaging in a particular type of process only to learn when it’s too late that they have unwittingly participated in something that will be used to protect the institution.

So you may be wondering what is the difference between an internal and independent investigation. Ultimately, it’s all about control. An internal investigation is when the institution being investigated is in control. Independent investigations require that the independent investigator be in control. That difference is fundamental. Here are a few helpful factors to consider when attempting to discerning whether an investigation is internal or independent.

Control of the investigator: An internal investigation means that the institution has control over the person or entity doing the investigating. An investigator who is associated with the institution being investigated is not independent. Furthermore, an investigator who has a fiduciary duty to the institution being investigated is also not independent. A fiduciary duty is a legal duty to act solely in another party’s interests. That sounds proper and professional until one realizes that the institution not only determines its own interests, but also is able to dictate those interests to those who are hired to investigate it. For example, attorneys owe their clients a fiduciary duty. Thus, when a practicing attorney or law firm is hired to conduct the investigation, the institution is in the drivers seat and the process is not independent. An independent investigator has a fiduciary duty to the truth, regardless of where it may be found.

Even when an investigator may not have a fiduciary duty to the institution, the investigation will still lack independence if the investigation agreement allows the institution to have any control over the investigator. This can include anything from determining who is on the investigation to requiring updates on the investigation findings. An investigation that is legitimately independent means that the institution being investigated is not in the driver’s seat when it comes to controlling the investigator.

Control of the process: The process of an internal investigation is defined and controlled by the institution. Internal investigations grant the institution ultimate authority on what evidence can be reviewed and considered by the investigator. For example, during one of the independent investigations conducted by GRACE, a representative of the institution being investigated demanded that we obtain permission before speaking with any witness. We were terminated not long after reminding them that this was an independent investigation and that they had no authority to make such a demand. The institution eventually pushed its way back into the driver’s seat of an investigation that went from being independent to internal.

Internal investigations also allow institutions to control the process by unilaterally limiting the scope of the investigation. For example, it is not uncommon for the investigation to be limited to the actions of the perpetrator while completely ignoring the failed responses of the institution. Such a self-serving limitation intentionally covers up some of the most egregious behavior related to the abuse.

An independent investigation is designed to prohibit those who are being investigated from determining who is interviewed, how such interviews are conducted, or limiting the scope of any other evidence the investigator determines is relevant. An investigation that is legitimately independent means that the institution being investigated is not in the driver’s seat when it comes to controlling the process.

Control of the findings: In an internal investigation, the institution being investigated can have complete access to the investigative findings. Findings can include witness interview recordings, notes, transcripts, and any documents a witness may have turned over to the investigator. This means that any highly personal and sensitive information a victim has provided to an investigator is accessible by the leaders of the very organization that has been accused of failing these same victims. Many abuse survivors are never informed of this when they reluctantly sit down to be interviewed in a process they have been assured is “independent”. I recently learned of a faith-based organization that terminated the investigating agency prior to the completion of the investigation. It then demanded that the investigator turn over copies of all its findings all the while it continues to insist that the investigation is “independent”. Independent investigations prohibit third parties, including the institution being investigated, from unilaterally accessing any such sensitive and personal data. This provides a significant comfort to those who participate in the investigation knowing that their interviews are truly confidential. The very nature of an independent investigation should mean that those who may reluctantly participate in it do so because they trust that the investigator is not under the control of the institution being investigated. An investigation that is legitimately independent means that the institution being investigated is not in the driver’s seat when it comes to controlling the findings.

Control of the final report: One of the most disconcerting characteristics of an internal investigation is that the investigator often works alongside of the institution in drafting and authorizing the final report. This means that the very entity being investigated will ultimately determine what the content of the final report.

Not only does an internal investigation allow the institution to determine the content of the final report, but it also has the authority to decide who reads it. I know some abuse survivors who painstakingly participated in what they were told was an “independent” investigation, only to learn later that they were not allowed to read any of the final report. Other survivors have informed me that they were provided only portions of the final report that the institution alone determined they could read. Such limited access exacerbates the frustration and pain of survivors who have often waited years to learn the truth, the whole truth. Once again, these survivors were left feeling helpless and exploited by an institution that was all too comfortable sitting the driver’s seat.

An independent investigation requires the investigator to draft and authorize the final report separate from any institutional input or control. The investigator alone determines the content of the final report and who will receive it. In most independent investigations, a complete copy of the final report will be provided to the subject institution and to any of the abuse survivors who participated in what usually is a very painful process. Some independent investigators will actually require that the final report be posted publicly for all to read. Such transparency has a unique way of keeping the process accountable and credible. An investigation that is legitimately independent means that the institution being investigated is not in the driver’s seat when it comes to controlling the final report.

The independence of an investigation is not defined by the words or assurances of the institution being investigated. It is defined by a structure that requires the institution to get out of the driver’s seat and give up control. This can be a profound step forward for an organization who is genuinely focused on demonstrating love and repentance to those who have been hurt.

The next time you hear an organization proudly announce that it is going to launch an independent investigation, do a little digging and find out who’s really sitting in the driver’s seat.