The recent White House Task Force report on campus sexual assaults, "NOT ALONE The First Report of the White House Task Force to Protect Students from Sexual Assault", recommends that colleges and universities consider using a "single investigator" model to improve campus sexual assault investigations. How might such a model work?
First, schools should not merely shift responsibility from a traditional hearing panel to a single investigator, who is simply a college administrator. This will accomplish little and could easily make things worse for both victims and accused alike, as the students would be at the mercy of a single untrained individual's discretion. At least with panels there are multiple untrained assessors who must seek agreement.
Second, it is impossible to devote the time and resources to train campus administrators to become professional investigators, prosecutors, defense counsel and judges. No amount of in-person training or online training will suffice. Even if training were possible, the universities do not want to play such a role to its students, as nearly all schools define their hearing boards as non-legal proceedings.
The solution is for the schools to hire independent investigators trained in this work. Here is how it could work:
- The independent investigator would investigate allegations of campus sexual assaults and recommend whether the allegation was substantiated. The independent investigators - ideally attorneys experienced with sexual assault cases - would interview witnesses and gather evidence with the aid of former law enforcement agents or private investigators trained to investigate sexual assault cases. Based on this investigation, the independent investigator would recommend to the school whether to find the allegation substantiated.
-- The school would then decide whether to accept this recommendation. If the allegation were substantiated, then the accused could be given two options. The accused could accept the investigator's finding and proceed to a sanctions stage where the accused and victim would submit materials to the school to consider in formulating the sanction. The school is the proper party to decide sanctions as they have the responsibility to make a fair and just determination of punishment.
-- Or, if the accused wished to challenge the recommendation of the independent investigator, then the student would be offered an "appeal" opportunity through arbitration. The arbiter - ideally a retired judge with experience in criminal cases - would utilize the findings of the investigator but both victim and accused would be allowed to submit additional materials and evidence for consideration. A finding of responsibility by the arbiter would be final and the school would then decide appropriate sanctions.
-- Similarly, a determination by the investigator that the allegation was not substantiated could be "appealed" by the victim through arbitration as well. Again, the arbiter would utilize the investigation already done, but the victim and accused could submit additional materials and evidence. The finding of the arbiter would be final.
A single investigator system of this nature, utilizing experienced independent investigators with years of specialized investigation and prosecution training, would offer victims and the accused the benefit of professional investigation without the delay and sometimes impersonal harshness of the criminal justice system. It would allow the colleges and universities to offer their students an independent and professional response to the epidemic of campus sexual assault allegations and protect the schools from the conflict-of-interest concerns inherent in school-run investigations described by former President Jimmy Carter. In short, it has the potential to transform the campus sexual assault investigations landscape from a hodge-podge of well-intentioned but flawed efforts into a professional, independent process by which campus sexual assault allegations are resolved quickly and justly.