1.1.1 Why are investigations necessary?

When there has been an allegation—whether of workplace misconduct, child abuse, or spiritual abuse—and the truth is not known, there likely needs to be an investigation. As with a wound, you have to figure how much damage there is and how to treat it. A misdiagnosis can result in ongoing “infection” and harm. When the organization has adequate skills and there are no concerns with bias, sometimes the investigation can be internal. Often, an investigation must be independent, especially when leaders are accused or allegations are serious.

1.1.2 Are there risks to not conducting an investigation properly?

Investigating poorly, or failing to investigate at all, can create an existential crisis, both for the organization and for those harmed. Without a proper investigation, you may not identify or be able to care for those harmed. Other people may also be at risk. Failing to provide fair process for someone accused, perhaps wrongfully, can create serious liability and unjust consequences. And without an investigation, you may not meet required legal standards for responding to employee complaints or fail to identify serious problems in the company culture. 

1.2.1 Are misconduct and crimes the same thing?

There is some overlap in the Ven diagram of “crimes and misconduct,” but only some types of misconduct violate criminal law and fall into the criminal justice system. Many undesirable behaviors are not criminal (such as spiritual abuse or mismanagement) and don’t even carry civil penalties. Other misconduct, like sexual harassment and discrimination, are illegal but usually carry civil consequences rather than criminal ones. One reason for this is that the burden of proof is different in a civil proceeding versus a criminal proceeding. Without a definite crime, the criminal justice system will not want to be involved with allegations. But government agencies do receive discrimination claims.

1.2.2 How is an organizational investigation different from a criminal proceeding?

During a criminal proceeding, the government bears the burden of proving the crime “beyond a reasonable doubt.” This is a very high standard. By comparison, a workplace investigation makes findings to a preponderance, or “more likely than not.” This lowered and less certain standard is necessary because civil investigations don’t have all the same tools available and employment decisions have to be made without waiting for absolute proof. Civil lawsuits are also tried to a “preponderance” standard, but the litigation process often makes more information available.

1.3.1 Who decides if an investigation should proceed?

When it’s a crime, law enforcement typically decides. Agencies may investigate allegations of misconduct (child abuse, discrimination). For the investigations we handle and other workplace or ministry investigations, the organization’s leaders decide whether to proceed or not. If high–level leadership has been accused, decisions like this are made by the Board. Of course, requests from complainants and potential victims as well as advice from consultants, like legal counsel, play a major role in these decisions. 

1.3.2 How is the scope of an investigation decided?

While it’s not uncommon for complainants to want investigations into “everything that went wrong in the organization for all of its history,” this is usually a bad idea. First, broad historic investigations take a very long time and can delay action and justice (not to mention delaying healing for potential victims). Second, they are prohibitively expensive. Third, it can be very difficult to substantiate allegations when documents are lost, offenders are dead, etc. This means that, frequently, historical investigations cannot substantiate much that is not already known. Of course, there are special considerations that justify doing broad historical investigations, but often a focused investigation is a better idea to stay trauma–informed, results–oriented, and truth–focused.

In determining the scope of an investigation, questions like these should be asked:

• Who has been harmed?
• Do we already know they were harmed, or do we need to substantiate it? (If we already know they were harmed, it may make sense to go straight to some kind of resolution, like Christian mediation.)
• Are there others out there who were harmed who need to be identified so we can help them?
• Are there offenders who may still be harming others?
• Are there organizational decisions that need to be made?
• Does someone need to be disciplined?
• Does the culture need to change?
• To do this, do we need to know about many situations, or just one or two?

The answers to these questions will help design an investigative scope that is broad enough to give the information needed and narrow enough to be feasible and fast.

1.3.3 How do I choose an investigative firm, when many of them have been criticized online?

Choosing a trustworthy investigative group can be a challenge, especially when there may be online criticisms and attacks. Criticisms are not surprising. Given that investigations and the surrounding circumstances trigger strong emotions, some stakeholders will be very upset. 

Complainants may be distressed that their allegations were not accepted at face value. Those accused, or their friends, may feel that they were treated unjustly. Some people have a hard time accepting the fact that failing to substantiate guilt does not mean that the person accused is conclusively innocent (and people on both sides can be upset about this). 

A rigorous and objective investigation is bound to disappoint some people, and when the facts are quite complex, may in fact disappoint all people. However, even if the investigative outcome is disappointing to some, there are other steps organizations can take to address the hurt which we'll discuss in further detail.

When evaluating investigative firms, focus on the following criteria:

• Experience and Expertise: Look for investigators with a proven track record in the specific type of investigation your organization needs. For instance, handling a child abuse investigation requires different skills than investigating financial misconduct.
• Neutrality and Independence: Verify that the firm has systems in place to ensure impartiality including training to reduce investigative bias.
• Transparency in Process: The firm should clearly explain their methodology, how they evaluate evidence, and how findings will be presented. Watch out for investigators who place a greater priority on satisfying stakeholders over finding the truth.
• Specialized Training: Investigators should be trained in trauma–informed practices, cultural awareness, as well as any other skills relevant to your situation.
• Communication and Safety: The firm should have systems in place to provide regular updates on investigative progress, appropriately share investigative findings, while safeguarding confidentiality.
• Reputation Beyond Online Criticism: Online criticism often reflects the emotions of disappointed stakeholders. While criticism can provide insight, it’s important to also look for professional endorsements, case studies, or recommendations from trusted sources in your industry or network.
• Adaptability and Problem–Solving: A good firm should demonstrate flexibility and a problem–solving mindset that can be adapted to your specific investigation. Watch out for investigative firms that use a “one size fits all” investigative solution.

By focusing on these factors, you can choose a firm that aligns with your values and priorities, regardless of external criticism. The right investigative partner will not only uncover the truth but also help your organization navigate the path toward healing and improvement.

1.3.4 How should leaders weigh past criticisms against an investigative group?

First, criticisms can be evaluated by whether they seem objective in tone and substance or whether the persons making the critique fall into a particular camp. Next, it’s good to evaluate a potential investigative team by considering their commitments to the principles set forth in these FAQs. In addition, investigative teams should be able to provide references from previous clients, who can explain the process and whether it was fair and ethical.

1.4.1 Who is qualified to be an investigator?

Various professional backgrounds can help equip a person to be an investigator in different ways: HR Directors might have experience untangling employment conflicts; attorneys might be trained to depose, examine, and cross–examine; a counselor is skilled at receiving and understanding people’s stories compassionately, and a law enforcement detective is trained to investigate crimes. 

Each profession has advantages and drawbacks. Attorneys need to listen rather than talk. Counselors may need to work on being neutral and objective. Law enforcement needs to follow the evidence rather than “build a case.”

Normally, the way to become an investigator is by a mixture of training and an “apprenticeship” where a junior investigator supports a more qualified investigator before growing into the primary role.

Investigators must keep up with developments in the field. For example, modern best practices now emphasize open–ended questions rather than cross–examination. Additionally, much more is known about how trauma affects memory and interpretations of events. Investigators must account for these complexities to avoid retraumatizing witnesses, preserve fairness, and accurately assess credibility in light of potentially fragmented or emotionally charged accounts.

Just because an investigator is qualified in one area (such as employment complaints) does not mean he or she is qualified in others (such as child abuse). An investigator must be aware of the complexities and legal standards in the area being investigated. Often, this requires specialization, such as psychologists or child forensic interviewers. 

1.4.2 Are Telios Law investigators qualified?

Theresa Sidebotham has extensive experience investigating child safety (including historic abuse allegations), sexual harassment, various forms of discrimination, and other employment–based misconduct such as management issues, spiritual abuse, and abuse of power. She is an attorney specialized in management and in ministry and has written a book based on her experience and research (Handling Allegations in a Ministry: Responses and Investigations.)

When leading an investigation, Ms. Sidebotham works with a specialized team of investigators, including attorneys, psychologists, child forensic interviewers, and former law enforcement, depending on the investigation’s specific needs.

1.5.1 What are the advantages and disadvantages of attorney investigators?

There are several advantages to working with an attorney investigator. Primarily, an investigative attorney can balance legal protection with a commitment to fairness and truth. An attorney investigator will understand the legal framework, operate under attorney–client privilege (usually), and allow the organization to pursue healing solutions while not being put at unnecessary legal risk. Attorneys understand evidentiary requirements and how to document findings correctly. They can usually draft reports more quickly and of a higher quality, which can sometimes save money and present clearer findings. If they are trained in alternative dispute resolution techniques, they can adapt their approach to facilitate a true resolution. 

However, it is possible that an over–reliance on privilege might create problems with transparency. And an attorney might undervalue important organizational, psychological, or social dimensions of the situation. In some cases, using an attorney investigator can be significantly more expensive. As with any investigator, if an attorney is focused on protecting the organization legally rather than uncovering truth or ensuring justice for victims, the investigation could become deeply flawed.

To avoid this, as attorney investigators, we believe it is important to discuss ahead of time how information will be revealed and used for healing. We are transparent with clients that our task is to find out the truth so that the truth can be used to care for those harmed and heal the organization. We are not the organization’s general legal counsel nor their defense counsel. Our role is to help organizations improve, not to defend what they have done or not done.

1.5.2 What is the purpose of attorney-client privilege?

Each of the privileges (doctor–patient, counselor–patient, clergy–penitent) is designed to create a safe space to address serious problems. It is no different with attorney–client privilege. An investigation that has no attorney–client privilege has no guaranteed confidentiality, meaning there is no private space for an organization to wrestle through difficult decisions. Worse, without that confidential space, it is difficult for people to make candid remarks or argue important issues.

Organizations have legal obligations around the confidentiality of personnel files, sensitive personal information, and confidentiality for minors. An attorney–client privileged investigation helps to meet these legal obligations and ensure the privacy of people involved.

Releasing the information gathered during an investigation could be harmful to the parties involved. Frequently, witnesses have conflicting testimonies and accounts. And it’s important that every witness be able to share their story in as safe an environment as possible. In many cases, publicly publishing those stories told in confidence can do more harm than good. 

Oversharing information can be directly harmful to survivors. Those who want a Master Report to be shared publicly are not necessarily speaking for every witness and cannot decide that every witness’s privacy and security can be sacrificed. The issue of sharing is even more complicated legally and emotionally for claims that cannot be substantiated and cases where other witnesses have negative opinions about complainants.While survivors can choose how much of their own story to tell, oversharing by an investigative team rarely leads to life and healing. 

“What to share and when” is an incredibly complicated question that often doesn’t have a single “right answer.” Attorney–client privilege helps the organization approach the issue with care and safety.

1.6.1 What is an independent and neutral investigation?

The first hallmark of an independent and neutral investigation is that investigators cannot assume allegations are untrue, but they also can’t assume they are true. A person committed to the innocence of the organization should not be doing an independent investigation. Neither should someone who automatically believes all complainants. These people still have important roles (such as defense attorney, victims’ advocacy, or plaintiffs’ attorney), but they should not be investigators or decision–makers in an investigation. 

At the end of the day, while it might sound harsh, an independent investigator can’t “care” where the evidence leads; only that it leads to truth. Obviously, an investigator needs to be compassionate that people were harmed, but the truth informs healing. Investigators need to find truth, regardless of where the evidence leads, and regardless of whether organizations and stakeholders are happy with the results. 

1.6.2 How does bias play into conducting an investigation?

We touched on this aspect of “investigative messiness,” and how independent investigations must avoid bias to find truth. But investigators are not the only ones affected by bias. 

Organizations tend to be biased in favor of leaders or supervisors accused of misconduct. Sometimes, this bias is so severe that complaints about inappropriate behavior on the part of leaders are ignored or suppressed, sometimes for years, and more victims are harmed. It takes conscious effort on the part of the organization to set aside this bias and address misconduct allegations. 

Victims’ advocacy can challenge this organizational bias and plays a critical role in promoting effective responses to abuse. However, just as the organization has an incentive to believe its own leaders, victims’ advocates have a reverse incentive to believe those who may be victims. While believing victims can have an important role in their healing process, it still is a biased approach.

But it’s not as if investigators are magically beyond any form of bias. For example, organizations are not likely to attack an investigator for substantiating claims (the law and public opinion both dissuade this), but they might not give the investigators work another time. And other individuals may resort to online attacks if they feel an investigation did not go “their way.” As a consequence, investigators may feel pressure to try and corroborate as many claims as possible, to avoid potential backlash and reputational attacks.

As investigators examine evidence, there needs to be continuous self–monitoring to try to avoid any bias. Communication, not capitulation, with stakeholders (including the organization and victim’s advocates) plays a key role in that task.

1.6.3 Fairness to everyone

To be absolutely clear: Being fair and unbiased does not mean “fair to the organization” or “fair to the complainants.” It means being fair to everyone. One mistake unqualified investigators often make is overly focusing on the fairness of the findings and not the fairness of the process. 

For example, asking a young girl to relate an abuse account to a roomful of men is not a fair or compassionate process where she can feel safe and be heard. In another example, a person accused might be put through more of “grilling” than a proper investigative interview where she can properly share her story. The investigation is flawed if any of the stakeholders were denied a fair process.

1.6.4 Who pays for the investigation?

Because the organization usually pays for a civil investigation, complainants may believe that investigators will try not to find abuse because the organization is paying them. This is usually wrong for three reasons: 

• First, by the time organizations are paying for an investigation, they usually want to know if there has been abuse. Since independent investigations are rarely a legal requirement, if all they want is a cover up, why spend all the money on an outside investigator? It would be cheaper not to have an outside investigation at all. 
• Second, in most cases where investigators have found abuse or misconduct, organizations take tangible and public actions to correct course and prevent future misconduct. This would not be possible if the investigators were covering up the truth instead of revealing it to the organization: It’s very hard to prevent misconduct that you do not know about. Though, it is also sadly true in some cases that organizations will just say “thank you” and ignore the Report. 
• Third, harm that the organization does not know about, or is ignoring, is still harm. It still damages the efficiency of the organization, morale, employee retention, and ultimately the bottom line. If for no other reason than finances, it is in the organization’s best interest to find and act on the truth, and not simply ignore or bury reports. And for organizations that have a sense of calling, caring for people is important.

At Telios Law we discuss the goals of the investigation at the outset, so that everyone is clear about its redemptive purposes. If an organization’s intent is simply to save face, cover up, and bury the truth, we are not the right fit for that organization.

2.1.1 What should I expect from my interview?

When a friend or family member tells of a story of trauma and harm, they do so with the hope that they will be heard and believed. Your role is to listen and to support them. Pastors and counselors help them heal from their experiences with a similar listening process. But investigative interviews need to be different. A focus on believing or affirming everything an alleged victim has to say can hinder gathering all the information and testing it for credibility. In this sense, it is not the investigator’s job to “believe” or “disbelieve” what any given witness says. It is to gather everyone’s story and then determine what happened. 

2.1.2 What does a trauma-informed interview look like?

Some of the witnesses in an investigation have likely suffered trauma. While investigators need to discover facts, doing so in ways that are insensitive to trauma does not create a “fair process” for those with complaints. A witness might need to bring a support person, who sits quietly, but is there for the person. The open–ended interview format, where witnesses tell a story in their own way, is more sensitive to their feelings and gives them more control than a “cross–examination.” Witnesses should control when they take breaks, whether they answer questions, and so on. And a witness can ask for other accommodations too. Being unbiased and fact–focused does not mean the investigator can’t also be kind and compassionate. Since “human connection” is critical for a “trauma–informed” approach, in–person interviews are generally better, where the investigator can monitor how upset a witness may be and work to create a safe space.

2.1.3 Can interviews take place over Zoom?

Collateral interviews can take place over Zoom, but it’s important for key interviews (of complainants and accused) to take place in–person if possible. This helps the interview stay trauma–informed and helps the investigator to really listen to and engage with someone telling what is often a difficult story. Also, there are safety reasons. If someone has a crisis during the interview—such as a panic attack—you don’t want to be calling 911 from another city. Finally, it is easier to evaluate credibility of important witnesses in–person when qualified investigators can observe their body language.

Collateral interviews can take place over Zoom, but it’s important for key interviews (of complainants and accused) to take place in–person if possible. This helps the interview stay trauma–informed and helps the investigator to really listen to and engage with someone telling what is often a difficult story. Also, there are safety reasons. If someone has a crisis during the interview—such as a panic attack—you don’t want to be calling 911 from another city. Finally, it is easier to evaluate credibility of important witnesses in–person when qualified investigators can observe their body language.

2.2.1 Can witnesses be anonymous?

While some investigations have provisions for witnesses to be anonymous, it is very difficult to substantiate what an anonymous witness said by asking other witnesses. And other witnesses cannot then be asked about their credibility. Often, anonymous testimony ends up being useful as background information but cannot be used for much more until someone else happens to corroborate it.

2.2.2 If I’m accused, can I confront my accuser?

Investigations are not criminal proceedings. As such, there is no direct right to confront your accuser, like there is at a criminal trial. In fact, depending on the allegation, facilitating a direct confrontation between an alleged offender and possible victim could be a civil violation in addition to a moral one. 

The accused should be told what the allegations are and be allowed respond to allegations during the interview. Depending on the situation, this may or may not involve the accused knowing who has made statements about them. But investigations are not mediations or trials, so there will be no direct confrontation between the accused and witnesses. 

2.2.3 What about interviewing people together?

While support persons can be a great way to stay trauma–informed, it is not best practices to interview witnesses together, as they can influence each other, and it is hard to sort out who has personal knowledge. If another witness is the support person for an interview, it is better if the support person is interviewed first. 

2.3.1 Why didn’t an investigator get back to me if someone contradicted me?

While an investigator might circle back around to get more evidence where there have been contradictions, this can be counter–productive when facts are not in dispute, but only the interpretation of the facts. It may be better to address these contradictions with other supporting evidence and credibility evaluations.

2.3.2 What if I choose not to participate?

If persons accused do not participate in an investigation, they lose the chance to tell their story and rebut the allegations. Some organizations have policies requiring employees to participate in investigations, and if this is the case, refusal could be cause for discipline. But for other people, it’s their choice. The investigation will go forward without their story and their knowledge. If a person harmed refuses to participate, it is very likely that the allegations cannot be substantiated, even if someone else reports them.