Simple Questions with Complicated Answers Part 7

Written by: Deborah Eerkes

Q: How can an investigator proceed in a “complainant said / respondent said” type of case where there is no evidence?

A: The answer to this very common question is deceptively simple. But first it’s important to reflect on the question itself, and the assumptions behind it. We can assume hundreds, maybe even thousands of complaints have been dismissed out of hand for lack of evidence. A typical example might be where a complainant provides a detailed statement to the investigator alleging sexual violence of some kind. The respondent refutes it, either entirely (claiming it simply never happened) or in part (claiming the encounter occurred but was consensual, and possibly even making a counter-allegation that the complaint is vexatious or malicious). The nature of sexual violence is that it most often happens behind closed doors where only the complainant and the respondent were present. At this point, the investigator is in possession of two statements about an incident which may or may not have occurred, without any witnesses, and which cannot possibly both be true.

What is an investigator to do but declare the allegation unfounded? After all, a PSI cannot impose discipline without a finding that the individual violated policy, and that finding must be based on evidence. This conclusion, however, is grounded in the misconception that a complainant’s account of violence they experienced is not evidence unless corroborated by other information, statements or facts.

Here is the simple answer: a complainant’s account of their experience is evidence and, while additional evidence may assist in making out a case, it is possible to make a determination under policy on the basis of statements alone. Part of the hesitation around making a determination based solely on statements is a result of the distressingly widespread myth that false allegations are common and are often the result of a complainant’s regrets about a consensual sexual encounter. False allegations of sexual assault are rare; End Violence Against Women International (EVAWI) estimates that false allegations make up 2-8% of reports, meaning that 92 - 98% of sexual assault reports are not false. Given the fact that many survivors believe they will be - or in fact are - faced with disbelief, gaslighting and/or blame, it is reasonable to assume that similar stats apply to allegations of PSI and workplace gender-based violence (GBV).

Statements from two individuals, even where they are contradictory, can provide information sufficient to meet the standard of proof. An investigator can begin by looking at each statement individually and ask some basic questions, such as:

Does the account of the incident make sense?
Is it internally consistent?
Are there any details that can be corroborated with other information, such as interviewing a friend or roommate who spoke to the individual before or after the incident?
Are there text messages, social media posts, photos or other artifacts that could potentially corroborate other details of an account before or after the incident?
Are there any indicators or red flags in the account that need following up, such as vague or contradictory details?

Crucially, the analysis of any red flags must be trauma-informed. Where details are hazy or the statement seems contradictory, a trauma-informed investigator will hold a second interview to ask clarifying questions rather than assuming they are indicators that the individual is giving false information. It also requires an understanding of the potential effects of trauma on behaviour after an incident of GBV and not taking post-incident contact, even friendly contact, as a sign that the incident was consensual. Again, these details require neutral, non-blaming follow up questions and listening carefully to the individual’s own descriptions of what was happening for them at the time. Both of the statements, not just that of the complainant, should be subject to the same level of scrutiny, with efforts to corroborate important details wherever possible.

The investigator can also compare the two statements. The accounts of what happened are mostly aligned in many cases. The parties might tell a very similar story of what led up to the encounter, where it occurred, and what happened afterwards, with only a small number of (admittedly crucial) details that contradict each other. There is no need to find supporting evidence for details on which the parties agree, and the investigator can concentrate on those critical elements of the accounts that diverge from one another.

Recall also that the correct standard of proof - that is, a balance of probabilities or more likely than not - does not require every detail to be corroborated. The key here is that the investigator should be looking for corroborating evidence, not attempting to poke holes in a statement to create reasonable doubt.

By asking trauma-informed questions and carefully reviewing the statements, an investigator should be able to resolve most cases. Where there is truly no way to reconcile the statements, where they are equally believable, reliable and internally consistent, as well as consistent with any external evidence - in other words, when the balance of probabilities sits below, or precisely at, 50% - only then should the complaint be deemed unfounded. In those cases, the investigation report should reflect all efforts made to collect supporting evidence, as well as a detailed description of the analysis of the two statements that led the investigator to conclude that there was no way to determine one way or the other whether the policy was breached. Where there is even the slightest tipping of the balance to one conclusion or the other, it is possible to make a determination of violation / no violation.

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Suggested Reference : Eerkes, D. (2023, January). Simple Questions with Complicated Answers Part 7: How can an Investigator Proceed in a “Complainant Said / Respondent Said” Type of Case Where There is No Evidence? Courage to Act. www.couragetoact.ca/blog/simple-questions-7.