New Expert Investigators Won’t Solve the Campus Rape Problem

December 1, 2014

By Aktane Otani at Bloomberg Businessweek

New scrutiny on the prevalence of campus rape and government inquiries into how college administrators handle the problem have compelled many schools to reconsider how they respond to reports of sexual assault. Some universities have turned to hiring nonacademics to investigate rape cases, but that approach invites new concerns about who’s qualified to judge whether one student has victimized another—and what should be done about it.

Critics of the way many schools conduct rape investigations complain that professors and deans are unqualified to handle allegations sensitively or fairly. Some have allegedly discouraged victims from pursuing their cases to protect their school, or asked insensitive questions during victim interviews. In response, schools including Stanford, Harvard, the University of Southern California, Virginia Tech, Amherst College, and Brandeis University have begun to hire legal professionals whose full-time job is to adjudicate accusations of sexual misconduct.

The new crop of investigators are often attorneys or even former prosecutors who are well-acquainted with the laws and procedural roadblocks common to sexual assault cases. Their legal bona fides and full-time dedication to the job potentiallyimprove the process for colleges, victims of sexual assault, and the accused. Yet some say hiring them has drawbacks.
Investigators are not immune from bias, says Robert Shibley, senior vice president of the Foundation for Individual Rights in Education, a nonprofit that advocates free speech, due process, and other issues on college campuses. “You’re still faced with the problem that the organization paying for the investigator does have its own interest,” Shibley says. “The investigator may be doing their best, but they’re inevitably influenced by fact that if their investigation isn’t panning out the way their school wants, they’re probably looking at losing income.”

Full-time investigators aren’t necessarily impartial just because they work outside academia, either. Schools “could easily choose an outsider who has the same mindset” as the administration, says Elizabeth Bartholet, a Harvard Law School professor who signed a letter in the Boston Globe that condemned Harvard’s new sexual harassment policy. “I don’t think simply farming out the job will solve the problem,” she says.

Then there’s the other issue schools are hoping to solve through the use of investigators: the lack of training or credentials for school officials who handle accusations. While investigators often have a legal background, there’s no certification or minimum number of hours of training required for school employees handling sexual assault cases. The U.S. Department of Education describes things investigators should learn in training—interviewing techniques, the meaning of consent, and how trauma can affect victims—but doesn’t specify any standardized curriculum (PDF).
Even those who point out potential problems with outside investigators say they see benefits to using them. Colleges “feel, rightfully, that their own internal investigations are not up to standards that people would expect. So to the extent that it improves the investigation process, I think that’s a positive,” Shibley says.
And even without standardized requirements, many schools demand an impressive track record of their investigators. A Stanford University advertised in July sought candidates with a law degree or related graduate degree and “a minimum of 10 years relevant experience such as a law enforcement investigator or other related field.”

Hard-liners argue there’s only one outside investigator schools should bring in: the police. While both in-house and third-party investigators may act “in the school’s best interest, rather than the interest of truth or justice,” Shibley says, law enforcement officials are the only ones who don’t owe anything to schools.