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Believing women while remaining neutral: Conducting sexual harassment and sexual violence investigations in a post-#metoo world

investigations

In the last two years, “I believe women” has become a frequent comment in discussions about sexual harassment and sexual violence. It’s an important one, given the negative experience that many women have had when trying to report sexual abuse, including low conviction rates for perpetrators and a feeling that their stories were not heard.

For workplace investigators who – in our personal lives – might wholeheartedly embrace “I believe women,” deciding how and if this impacts our investigation practice is a delicate balance. As neutral investigators, we are allowed to be aware – and in fact should be aware – of the context in which sexual violence allegations arise. In Canada, in 2019, we know that false allegations of sexual assault and sexual abuse are exceedingly rare, and in the criminal context make up between 2% and 4% of all reported cases. That does not mean that we should entirely discount the possibility that a complainant is being untruthful, or that their evidence is otherwise unreliable, but we also should not ignore statistical information.

We need to begin an investigation with an open mind, meaning that we believe that it is equally likely that either party might be telling the truth – or that the “truth” might lie somewhere in the middle. So is there a place for a neutral investigator to embrace, “I believe women”? Yes and no. The key for workplace investigators is to be open to believing that a complainant is telling you their experience as they understand and remember it, rather than starting from the position that you will take every piece of evidence that they provide as fact. In order to do this, an investigator must keep a few things in mind:

1. Give the complainant time

Intuitively, we think that it is better to interview someone as soon as possible after an event in order to get the best and most accurate evidence. Several studies have shown, however, that sleep plays an important role in solidifying memories; your best evidence might come a few days after the event in question. Similarly, during the interview, let it be known that the complainant can take as long as they need to give their evidence. You can avoid having anyone feel rushed by setting aside ample time for the interview and allowing breaks as needed.

2. Show empathy

It’s possible to show empathy while remaining neutral; the key is to show empathy for both parties, and to refrain from making assumptions about what is causing any apparent distress or discomfort. As an investigator, you cannot walk into an interview assuming that the complainant has been through a traumatic event, when your job is to determine if they have been through a traumatic event. But that doesn’t mean that you need to leave your humanity at the door.

For both parties, investigators should attempt to make the interview process as comfortable as possible while avoiding becoming biased (for example, try saying, “I can see that you’re feeling upset right now, can I get you a glass of water?” rather than, “I’m so sorry that we have to go through all these questions when you’ve already been through so much.”)

3. Consider adjusting your ideas about credibility

Credibility assessments are challenging and become even more so when dealing with someone who might have experienced trauma. Traumatic experiences can result in a variety of behaviours that, on their face, might look like signs of deceit, including memory lapses. Open ended questions can be the best approach, allowing the complainant to tell the story in their own way, focusing on what is most vivid for them.

We also have to keep in mind what credibility actually means; as my colleague Megan Forward pointed out in a recent blog, credibility does not only refer to the honesty of a person’s story, but also its reliability. A person can truly believe the version of events that they are giving to an investigator, but can also be mistaken – for example, due to memory impairment caused by the passage of time or consumption of drugs or alcohol. There is also the possibility that both parties are telling the truth as they see it, but that they experienced an encounter in vastly different ways – for example when one party does not have a thorough understanding of what enthusiastic, ongoing consent means.

4. Give complainants space and opportunity to explain behaviours that don’t seem to make sense

Related to the above, people who have experienced trauma may not only have difficulty recalling the incident in question but might act in ways that don’t make sense to an investigator – both in terms of how they act during the interview, and how they describe their actions during an alleged assault.

Here at Rubin Thomlinson we were fortunate to have a presentation by Dr. Lori Haskell, a clinical psychologist and professor of psychiatry who specializes in the effects of trauma. Dr. Haskell explained that, when a person is experiencing a traumatic event, they might be unable to plan, strategize or organize an effective response due to the flooding of stress hormones and the loss of prefrontal cognitive abilities. A person experiencing extreme stress may even enter a dissociative state. This could mean that when it comes time to explain to an investigator how the events unfolded, the complainant will be asked to explain, for example, why they did not fight back against an assailant or why they remained in the apartment of someone who assaulted them for several hours (seemingly voluntarily) after the assault took place; unfortunately, they may not even understand themselves why they acted the way that they did under extreme stress.

In such situations, it’s important for an investigator to take a trauma informed approach in order to get the best evidence from a complainant. Taking a trauma informed approach doesn’t mean answering questions and filling in gaps for the interviewee. You can’t assume that someone failed to leave a seemingly dangerous situation because of trauma, just like you can’t assume that someone failing to leave the seemingly dangerous situation means that the assault did not actually happen. As in all investigations, the only way to sort out information that does not seem to make sense is to ask. In the case of complainants who may have experienced a traumatic event, asking such questions in a calm, non-judgmental way is more important than ever.

A good rule for questioning anyone in a workplace investigation is to avoid laying blame, with either the wording or the tone of your questions. For example, saying, “I know that you mentioned that you were in the apartment from midnight until 7:00 a.m. and that you didn’t think to leave earlier – do you understand why that was?” can come across as much more open and non-judgmental than, “So you expect me to believe you were scared but you still didn’t leave?” If a complainant is unable to explain their actions, an investigator might try asking what they are able to remember experiencing, thinking or feeling. A person who was under extreme stress might describe feeling “frozen” or a person experiencing dissociation might describe that they did not feel anything in the moment.

5. Have a good idea of what resources are available

Even if you ultimately find, on a balance of probabilities, that a complainant has not experienced sexual harassment or sexual assault, that does not mean that they have not experienced something that was subjectively traumatic. An internal investigator should ensure that they are either familiar with the supports available to the complainant (such as an Employee Assistance Program or a campus Sexual Violence centre) or can refer the complainant to someone who does have this information. Third party investigators should connect with clients to ensure that any party that needs additional support or assistance is able to access it.

By Michelle Bird

Rubin Thomlinson LLP

Employment law firm at Rubin Thomlinson LLP
Rubin Thomlinson LLP is a Toronto-based employment law firm dedicated to finding optimal legal solutions to challenging workplace issues. Rubin Thomlinson provides expert counsel to employees and employers on all legal issues pertaining to the workplace such as hiring, retaining and terminating employees; executive compensation and contracts; accommodation issues; and workplace human rights. Rubin Thomlinson is also considered a leading authority in the area of workplace harassment, and workplace investigations and reviews. Read more.

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2 thoughts on “Believing women while remaining neutral: Conducting sexual harassment and sexual violence investigations in a post-#metoo world
  • jim anderson says:

    Excellent article !! Right on point.
    So many times we encounter opinionated employer representatives or coworkers who address complaints from positions of bias.
    Bias that the accused must have done it.
    Bias that the accused could never have done it … “” I’ve known John ( at work) for years . No way he would have harassed her or stalked her.” ….. ” She must be over reacting. John’s just John. He acts lke that with everbody “

  • Jim Anderson says:

    Incredibly important to successfully conducting independent investigations.
    I saw a News video of a police officer conducting a sexual harassment/ assault interview , failing to use any of these important tips. The outcome was not good.
    Similarly many workplace managers and HR persons lack the skill or ability or time to separate themselves from the biases of the work environment and so their investigations don’t due justice to alleged victims or accused.

    Hope your article will shed some light for those assigned to do investigations in tgeir workplace.

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