Lessons Learned from Faulty Investigations
Investigations should be conducted in a thorough, timely, and impartial manner. But what happens when an investigation is not conducted to these standards? As investigators, we frequently learn from the mistakes of other. The investigative news organization Mother Jones recently published an article on an investigation that had several serious missteps; ‘Independent’ Investigations Into Sexual Abuse Are Big Business. Can Survivors Really Trust Them?”
Senior VM Partner Eli Makus is quoted in the article, explaining that California has specific expectations for investigators conducing a prompt, fair, and thorough investigation. However, as Eli noted, “Across the country, there’s a lot of inconsistency in how investigations are conducted.”
Journalist Madison Pauly’s investigative article focuses on Tania Culver Humphrey’s experience as a Complainant in investigations against her father’s institution, Mercy Corps. The article highlights some major missteps, which are outlined below.
As detailed in the Mother Jones’ article, investigators made multiple errors, including: (1) who investigated the claims, (2) how the investigators conducted the Complainant’s interviews, and (3) how the investigators obtained relevant evidence. Each of these pitfalls is discussed below.
Who Will Investigate?
First, employers and investigators must consider who will investigate the claims. The investigator should be impartial and neutral, both in appearance and in actuality.
As detailed in the article, when Culver Humphrey raised her claims, Mercy Corps hired an attorney to investigate. Sounds fine, right? But that same attorney later went on to represent Mercy Corps when it was sued on the same allegations raised in the investigation. Even if the attorney had approached the investigation in an impartial and neutral manner, his later representation of this client significantly impacts the trust a party would have in the initial investigation. The role of an advocate is very different than the role of a neutral investigator.
In another Mercy Corps’ investigation, the investigation was led by one of the Respondent’s close friends. As all of us who conduct investigations know this without question creates the appearance of bias, and in reality, can create actual bias in conducting the investigation.
When choosing an investigator, it is important to choose an individual with experience, impartiality, and neutrality – whether that it an external investigator who is not involved in representing the company in litigation, or an internal investigator who is trained and is not personally involved or impacted by the matter.
How Are Interviews Conducted?
Second, investigators should ensure Complainant’s interviews are conducted in a way that reduces the risk of re-traumatization.
Complainant Culver Humphrey participated in full day interviews, culminating in 100 hours of statements. During the interviews, she was sometimes sick, experienced panic attacks, and at some point was unable to verbally give responses and resorted to passing notes. The investigator also did not permit Humphrey to have her attorney present.
Under these circumstances, it is impossible for the investigator to gather the best and most accurate information from their witness. We have to meet our witness where they are, take breaks, make reasonable efforts to ensure their comfort, and only ask the pertinent questions. When interviewing anyone, it is important to ensure the witness is in a safe environment where they feel comfortable sharing their experiences.
How Is Evidence Obtained?
Third, in gathering relevant evidence, investigators should ensure possible leads are investigated where feasible.
Culver Humphrey named employees who she believed were aware of the abuse she endured. One of those employees was never contacted by the investigator. Considering the investigator did not sustain the allegations, failure to interview pertinent witness who had either direct or indirect knowledge of the conduct was a misstep.
Thorough, Timely, and Impartial Investigations
A faulty investigation risks traumatizing witnesses, missing key evidence, and leaving the employer open to liability and reputational harm. Overlooking the core standards of conducting an investigation jeopardizes the integrity of the process and the ultimate goal of ensuring fair and safe workplaces.
