George Bernard Shaw’s play “Man and Superman” contains the famous line: “Remember: those who can, do; those who can’t teach.” The same may be said for Title IX consultants who offer training for colleges and universities in how to conduct Title IX campus sexual assault investigations.
Title IX investigations should be conducted by Title IX investigators who have been trained by former sexual assault investigators, not consultants who merely instruct how to “comply” with Title IX law and guidance issued by the Department of Education. Similarly, training for Title IX hearing panels should be conducted by Title IX trainers who are experienced sexual assault investigators. Investigating a sexual assault is not the same as investigating sexual harassment. The skills and experience needed for Title IX campus sexual assault investigations do overlap with the skills and experience needed for criminal sexual assault investigations.
But the overlap works this way:
Not this way:
So while an experienced criminal sexual assault investigator can certainly conduct sexual harassment investigations, it does not work the other way around. Investigators who have only done employment related sexual harassment investigations lack the experience to conduct criminal sexual assault investigations and campus sexual assault investigations.
Here’s why: criminal sexual assault investigations are among the most difficult investigations to conduct because they require mastery of not only forensic skills and psychological profiling skills but also sensitivity, an understanding of trauma in the victims and survivors and the skill to investigate the validity of a consent defense. This latter two skills are why sex crimes prosecutors and detectives often say sex crimes present tougher challenges than murder cases. In a murder case, the victim cannot be a witness and consent is never a defense. Title IX investigations of campus sexual assaults are even harder. Title IX investigations of campus sexual assaults present greater challenges than conducting criminal sexual assault investigations given the lack of subpoena power and the lack of forensic resources. Moreover, nearly every Title IX campus sexual investigation involves a consent defense most campus sexual assault investigator lack the training and experience to effectively investigate consent defenses.
I often explain in class lectures that the great debate about what standard of proof to use in Title IX campus sexual assault cases is a red herring. While some advocates for the accused want the highest standard of proof possible – beyond a reasonable doubt – some advocates for victims and survivors want the lowest standard of proof – preponderance of the evidence. I say it doesn’t matter. Why? Because it doesn’t matter what standard of proof you use if the person applying it doesn’t have a clue how to use it.
Most Title IX compliance consultants cannot effectively train college and university staff in how to conduct a Title IX campus sexual assault investigation because the consultants lack criminal sexual assault investigations experience. Simply designing complex and hard to understand procedures that include definitions of “consent” and state what standard of proof will be used is not the same as providing training that produces effective investigations. An experienced former sex crimes prosecutor or detective will have conducted hundreds if not thousands of sexual assault investigations. Only that kind of experience, combined with the specialized training in forensics, sexual offender profiling and victimology, allows effective investigations. Compliance consultants usually cannot provide this rare combination.
Colleges and universities today find themselves caught in a crossfire from survivor lawsuits, Department of Education investigations (over 200) and a growing number of lawsuits (150 at last count) brought by students accused of Title IX violations. As the number of law suits brought by students accused of Title IX campus sexual assault violations grows to rival the number of DOE investigation, college and university administrators may understandably ask themselves what is going wrong. They may ask themselves why the money they spend on having consultants help design their Title IX sexual misconduct procedures fails to produce satisfactory results.
A big part of that answer is the lack of effective training provided by experienced criminal sexual assault investigators for campus sexual assault investigators. Until Title IX campus sexual assault investigations are conducted by effectively trained investigators, the campus communities will continue to lack confidence in the integrity of their Title IX campus sexual assault investigations and procedures. Mere Title IX compliance consultants have failed at providing effective Title IX campus sexual investigation training.