Investigations and Fair Process

Fairness and Justice

When the facts are disputed or not obvious, an investigation may be needed. But investigations are not just about finding facts; they’re about restoring trust and ensuring safety within the community. Whether legally required, as often is the case in employment contexts, or morally compelled, investigations should be thorough and fair. 

All involved parties must be treated with dignity and respect and without bias. And a mishandled investigation can lead to a loss of faith in the organization and even legal liability.

Here are some best practices for setting up a fair and just investigation.

Setting Up the Investigation

Choosing the right investigator is key. The investigator should not have a vested interest in the outcome or be closely familiar with the individuals involved, to maintain integrity and prevent conflicts of interest.

Investigators definitely should not be friends or family of the parties involved. Even a human resources representative or inhouse counsel should be cautious if they have previously been involved with the matter, as their objectivity may be compromised.

Complex or serious allegations require seasoned investigators who have experience in navigating intricate allegations—and counter-allegations. Sometimes, this means that the investigation should not be handled internally.
Leaders must decide whether to conduct an investigation internally or externally. Internal investigations offer familiarity with organizational culture and are more cost-effective. Possible downsides are potential bias and limited expertise. External investigations, while potentially more expensive and requiring longer preparation times, bring impartiality and specialized expertise. This may mean findings are more credible.

Several factors affect the decision. The seriousness of the allegations, the position of the person accused, the internal capabilities of the organization, and the potential impact on the community's trust must be evaluated.

Scope and Team

Setting up the investigation requires some thought. An investigation needs a clear scope, to make sure it includes everything needed but is not unnecessarily extensive, expensive, slow, and unwieldy. 

It's important to select an appropriate investigative team. Team members may need expertise in legal standards for a given situation, including employment law and child abuse, church policy, and investigative best practices. Specialized personnel like translators, psychologists, or child forensic interviewers may also be needed. The investigation should follow best practices in evidence collection, handling, and analysis.

Due Proces and Fairness

Fairness is at the heart of the concept of due process. By following a consistent investigative procedure and applying the same steps to all parties involved, organizations ensure everyone is treated equally. This upholds fairness and builds trust in the process. A fair process doesn't make assumptions either way about guilt or innocence and follows accepted best practices.

Without following steps to ensure due process, the risk of unequal or unfair treatment increases. When shortcuts are in due process to achieve an end of "justice," such as substantiating (or not substantiating) an accusation, this lack of fairness or procedural consistency destroys trust and creates injustice in the long run.

Due process involves following established rules and principles to maintain impartiality. It means applying the same procedural steps to all parties involved, so that everyone is treated equally and the approach remains neutral. Among other things, it means not letting the complainant (or their friends), or the accused (or their friends), dictate the course of the investigation. And if investigators conduct interviews of complainants that are not trauma-informed, or grill persons accused and don't allow them time and opportunity to respond to allegations, they risk undermining the integrity of the process.

A neutral approach will gather the perspectives of all. Open-ended interviewing is preferred as a technique. The interviews should be trauma-informed and sensitive to what people may have experienced. Typically, complainants are interviewed first, then witnesses, and lastly the accused. 

Failure to follow fair process can not only prejudice the investigation but can create liability in a lawsuit. Courts focus on whether an investigative process was fair and impartial. Only then can an organization safely rely on the results of the investigation.

While due process may not guarantee the accuracy of the findings, it helps to foster fairness and thus makes accurate findings more likely. It mitigates the risk of bias and promotes trust in the investigative process generally, which maintains integrity. It protects the rights of everyone involved, upholds an organization's credibility, and reduces legal liability.

Transparency and Confidentiality

There is a delicate balance between transparency and confidentiality. Due process for all parties requires protecting some information and guarding privacy. A good investigation needs a confidential space to proceed, to preserve candor and integrity of testimony.

However, a respondent or person accused should be informed of the allegations in enough detail to respond adequately. The seriousness of the allegations may dictate the level of detail provided. This is why it is usually not possible to substantiate an anonymous allegation. While respondents may not receive all evidence, such as witness statements, they must have a fair chance to respond to allegations.

An investigation will usually conclude with a thorough report. How much should be shared and with which stakeholders will again depend on the need to know and the healing process. There may be a broad or narrow “need-to-know,” due to issues of safety or public scandal. The evaluation of what should be shared during an investigation may be different from what should be shared once it's finished.

Avoiding Unnecessary Delays

Avoiding delays in investigations is important. To ensure efficiency, a goal is to complete investigations within a set timeframe, such as 90 calendar days, unless extenuating circumstances arise. This helps prevent the loss of evidence and minimizes unnecessary costs, especially if parties are on paid leave. Prolonged investigations can also exacerbate stress for both complainants and respondents. However, there are often circumstances that inevitably create a longer investigation, including the size of the investigation, the number of witnesses to be interviewed, the amount of travel, the documents to be reviewed, and so on. 

Challenges and Myths

Challenges and myths surrounding investigations in the ministry context may require some explanation to stakeholders. It is a misconception that investigations paid for by the organization are inherently biased. In actual fact, all investigations must be paid for by someone unless they are conducted by a government agency, in which case they are paid for by everyone. To address this misconception, the focus should be on the integrity and fairness of the process. 

Another misconception is that attorney-client privilege exists purely to protect the organization from consequences. That’s wrong for two reasons. First, attorney-client privilege doesn't prevent litigation and similar consequences—so if it's meant to do that, it’s doing a bad job! Second, there is a benefit for victims when they are part of an investigation that is attorney-client privileged: it gives the organization space for a healthy response where leaders can discuss issues candidly and put the needs of those who may have been harmed first, without worrying about their recommendations and actions generating additional liability. Third, there is a benefit to all witnesses in keeping full reports confidential—truly unbiased reports contain the candid views of multiple people that may be uncomplimentary of complainants and accused alike.

Another absolute myth is that spiritual leaders are not capable of abuse. Rather, when spiritual leaders engage in abuse of various kinds, it is amplified because of the spiritual component. But, on the converse side, it's a dangerous myth that everything a complainant says is true. Many things affect perception and memory, especially with trauma is involved. 

Investigators have to be unbiased, neither siding with the accused, nor potential victims. It's important to be aware that investigations cannot always substantiate claims to a preponderance of the evidence. While disappointing for complainants, this does not mean the end. There is still room to consider safety plans and restorative approaches like Christian mediation.

Conclusion

The quality and fairness of an investigation significantly impacts the outcome and the community's trust. For nonprofits and ministries, the commitment to a fair and thorough investigation process is not just a legal obligation but a moral one, reflecting their core values and principles.