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Conducting Comprehensive and Fair Sexual Misconduct Investigations

By Dan Schorr, Alyssa-Rae McGinn

September 30, 2019

The Importance of Independent Investigations

Allegations of sexual misconduct can have serious and long-lasting implications for the individuals and organizations involved. Failure to diligently respond to reports of sexual misconduct can impact the mental health of the parties, the culture of the organization, and the entity’s reputation. When allegations of sexual misconduct are reported to an organization, it is imperative to conduct a prompt, fair, and thorough investigation to determine the facts of the alleged misconduct and pursue an appropriate resolution. An effective investigation ensures that all parties are treated fairly and with respect, and allows the organization to identify and address areas of potential threat or liability.

When allegations of sexual misconduct surface, it may be difficult for an organization to locate the internal resources needed for a proper investigation. After all, thorough investigations may be time-consuming and require expertise in handling sensitive topics, assessing credibility, obtaining and analyzing evidence, and creating balanced reports of findings. Therefore, it may be beneficial to hire an experienced external investigator. A properly conducted independent investigation will lead to the most equitable treatment of all parties, and mitigates concerns about perceived or actual conflicts of interest that may arise when an employee of the organization conducts an investigation.

Our Investigative Process

Ankura’s professionals have been retained to conduct investigations on a variety of complex sexual misconduct-related allegations. Organizations that receive reports of sexual misconduct often bring in external investigators immediately after being notified about the issues, in order to ensure an efficient and fair investigation from the start. However, external investigators may become part of an investigation at any point that the need for their expertise arises.

Ankura’s initiation of an investigation begins with developing a complete understanding of the reported misconduct, the relevant policies and procedures that govern an organization, and the efforts that the organization has made to address the allegations thus far. Our investigators carefully comply with all relevant organizational policies and procedures, as well as appropriate precedents from prior misconduct investigations. An effective investigation begins with an investigation plan based on these factors as well as Ankura’s deep experience investigating sexual misconduct allegations.

After reviewing existing information about the allegations, external investigators should conduct interviews with the reporting party or parties. In these interviews, we strive to build trust and rapport with the parties by establishing transparency about the process and showing empathy and respect for the interviewees. These interviews are focused on gathering facts and uncovering inconsistencies, as well as providing reporting parties with an opportunity to be heard and to understand that the organization takes their report seriously. Experiencing sexual misconduct, whether actual or perceived, can be traumatic, and it is important to remain sensitive to that fact while also asking the necessary questions to identify the facts of the allegations. Investigators should be trained in trauma-informed practices, as well as techniques for asking incisive but respectful questions.

Following interviews with any and all reporting parties, Ankura professionals follow organizational policies and procedure to continue gathering evidence. Our next steps include interviews with witnesses identified as important to determining the facts of the allegations, including those with firsthand knowledge of the events in question and “outcry” witnesses who may be able to attest to the timeliness and attitude of the parties in sharing their experiences. Throughout these interviews, Ankura’s investigators ask questions to locate physical evidence related to the allegations, including text messages, emails, social media posts, and phone records. In addition, we work with the client organization or external organizations to obtain evidence such as surveillance video, WiFi logs, statements made to local law enforcement, medical examination records, and any other evidence that might provide clarity about the facts of the allegations. It is a common misconception that sexual misconduct allegations are often simply one person’s word against another’s. Our experts find that in most cases, there is also important physical, cyber, or testimonial evidence that contributes to discovering the truth regarding the allegations.

In speaking with accused parties, the investigators must maintain the same respect, transparency, and thoroughness as utilized in interviews with reporting parties. Investigators must understand that being party to an investigation is stressful for both sides, and both reporting and accused parties should have the opportunity to provide their versions of the events in question in full. During interviews with accused parties, the investigators may confront them with gathered evidence in order to ask them to explain such information. Often, accused parties provide purportedly exculpatory evidence, which our investigators utilize in follow-up interviews with reporting parties and other witnesses. We ensure that all outstanding gaps in information or conflicts between evidence and statements are explored through follow-up with the parties, witnesses, and the organization. In addition, our investigators encourage parties and witnesses to contact them with questions or additional information. These are sensitive topics, and sometimes a participant only becomes comfortable enough to share vital evidence after the interview has ended.

Ankura’s experts work closely with stakeholders from the client organization. We provide updates, consult on our process, and discuss preliminary conclusions throughout the investigation. Ultimately, our findings are independent and fact-driven, but our process is informed by organizational stakeholders’ inside knowledge of the culture and precedent of their community.

When the investigation has appropriately probed all available, relevant information about the alleged sexual misconduct, it is important to produce a clear, objective report of findings. This report should be written in compliance with organizational policies and with guidance from organizational stakeholders regarding style and methodology. Ankura’s reports include: (1) a clear and comprehensive executive summary, (2) relevant policies and standards of evidence; (3) a procedural history of the investigation; (4) an easy-to-understand narrative of the gathered evidence, which, when synthesized, provides a factual account of the events in question; (5) information and analysis of any prior complaints against accused parties; and (6) a thorough summary and analysis of the evidence, including applicable credibility assessments, comparisons between corroborating or conflicting evidence, and judgments as to whether violations of organizational policy occurred. In these reports, Ankura’s professionals are driven by the facts and our expertise in evaluating sexual misconduct behaviors.

Implementing Solutions for Sexual Misconduct

Ultimately, an independent investigator’s goal in conducting and completing a sexual misconduct investigation must be to help clients responsibly resolve these reports and foster a healthy, safe community. Whether the investigation finds that an accused party violated organizational policy or not, Ankura’s experts consult with organizational stakeholders regarding any needed sanctions or informal resolutions, as well as possible prevention efforts or policy changes that may mitigate such misconduct, actual or perceived, in the future. Ankura’s professionals often work with in-house and outside counsel to navigate the legal and regulatory ramifications of various courses of action for resolving sexual misconduct reports. We also help clients implement innovative methods in restorative practices and rehabilitative education. Employing our expertise and experience, Ankura’s professionals assist clients in addressing and preventing sexual misconduct, whether through an investigation of one individual or the implementation of organization-wide efforts. In this way, Ankura can help an organization protect its reputation, its culture, and its most important asset: its people.