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Before the Trump administration put new regulations into effect in 2020, many schools in the Boston area used a “single investigator” model, in which the investigator interviews the parties and witnesses, gathers evidence, and then either issues a decision of responsible or not responsible, or forwards a final report to a university administrator or panel which makes the decision, without holding a hearing or, in many cases, even meeting either party or the witnesses. The 2020 regulations required schools to hold a live hearing to determine responsibility—but as this requirement is dropped in the new regulations going into effect August 1, 2024, colleges will have to determine whether, after a few years of experience with live hearings, they will continue to use hearings or revert to a single investigator model.
Institutions in Massachusetts using a single-investigator model included all of Harvard’s schools except for the Law School, where all cases went through a centralized system in which investigators from the Office for Dispute Resolution, sometimes joined by representatives from the school in question, investigated and reached a conclusion about responsibility (or “guilt,” to drop the Title IX terminology). The respondent’s specific school would then use its own processes to determine a sanction, if there was a finding of responsibility. Since the 2020 regulations came into effect, Harvard’s “interim” procedures—never adopted as permanent—have provided for a hearing following ODR’s investigation and issuance of a report. Following issuance of the new regulations, I expect Harvard to move quickly to finalize new procedures and would be unsurprised if they reverted to a single-investigator model—this is speculation, of course, but if Harvard had wanted to voluntarily adopt a live-hearing, I don’t think it would have treated the procedures that require one as “interim” for four years.
Before August of 2020, Harvard was not alone in using a single investigator model. Other schools that used a similar model, off the top of my head, included Williams, Holy Cross, Emerson, Bentley, Boston College, Berklee College of Music, Emmanuel College, and Bridgewater State University. This is not close to an exhaustive list. I expect that some, but perhaps not all, of these schools will revert to a model that doesn’t include a hearing. Schools that previously offered a hearing may also choose the single investigator model, given that all colleges and universities will likely be revisiting their procedures in the wake of regulatory changes.
So, if you are accused of sexual misconduct in Massachusetts and your school is using a single investigator model, what should you expect? And how should you prepare to defend yourself, if you will not ever be in the same room with your accuser or hear their story directly? The suggestions below are just that—suggestions—and won’t apply to every case, or every school, but they are based on my experience representing respondents at a wide range of institutions, and express principles that guide me in representing respondents in this situation.
First, you are entitled to adequate notice of the accusation against you. This is critical, especially if you may not hear from your accuser directly. If you don’t understand the allegations, ask for more information. If there is a written complaint, ask for a copy.
Second, your interviews with the investigator are always very important, but they are even more important if the investigator is the decisionmaker (or if you will never meet the decisionmaker directly, and they will be relying solely on the investigator’s report to make their decision). You should be extremely well prepared for interviews, and if possible you should work with a lawyer who can prepare you for the kinds of questions you might be asked. You should gather all of the evidence that you can prior to your interview, including all of your communications with the complainant and with relevant witnesses, and you should use anything you can to refresh your memories of what happened—especially if time has passed. (If there is any risk you might face criminal charges, you should at the very, very least confer with a lawyer before choosing to participate in an interview.)
You will not have the opportunity to cross-examine your accuser or witnesses, either directly or through your advisor. You may be asked if you want to submit questions in writing for the investigator to ask. (Even if the school doesn’t offer you this opportunity, you can always submit the questions and request that they be asked.) Whether to submit questions and what to ask is a tricky question when you are not going to be in the room when the complainant is asked your questions, though. Bear in mind that the investigator may choose not to ask some questions, and may rephrase those that they do ask. You should think seriously about how the complainant will actually answer the questions and whether those answers will help or hurt your case, and you should bear in mind that you will not be there to follow up on or clarify their answers with further questioning.
Finally, you will likely have the opportunity to respond in writing to the investigator’s draft report. This is an important thing to do, especially if someone other than the investigator will be the final decider. In those circumstances, this written document may be the only opportunity for the decisionmaker to hear from you, even if it’s only in writing. In many cases, this document is also a chance to point out contradictions in the evidence that’s being offered against you, or to highlight evidence that supports your story.
The bottom line here is that I would always rather have a hearing, but the single investigator is not the end of your ability to defend yourself and it does not make it impossible to be found not responsible. A lawyer can help you, regardless of the model you find yourself navigating; contact me if you would like to speak about your situation.
