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The role of control in investigations and reviews

In recent times, the Church and para-church organisations seem to have been repeatedly under the spotlight for a range of failures, including those that point towards the harm and abuse of members, beneficiaries and others. As these profoundly troubling reports continue to surface, such organisations have a responsibility to other potential victims, its employees and supporters to immediately engage an independent third-party review to bring all that is in the dark to light.

Whether it’s academic institutions, mission organisations, churches or denominations, the term “independent review” has become almost fashionable. When an organisation is confronted with public allegations of abuse within its ranks, it finds itself under a bright spotlight as the watching world waits to see how it will respond.

All too often, the overriding institutional concern has very little to do with caring for the victims and the wounded and everything to do with protecting its reputation by doing everything it can to shut off the spotlight and “move on.”

This is often accomplished by the institution announcing that it will launch an “independent review.” The organisation proceeds to hire a law firm (or other specialists) to investigate the matter with the hope that this process will calm everyone down and eventually turn off the spotlight.

Because the motivation for this process can be based upon institutional self-preservation, many reviews labelled as “independent” are nothing more than “internal” reviews in disguise. An internal review allows the institution under review to stay in the driver’s seat. An independent review, by contrast, would require that they get into the backseat with everyone else.

Many reviews labelled as "independent" are nothing more taht "internal" reviews in disguise. An internal review allows the institution under review to stay in the drivers seat. An independent review, by contrast, would require that they get into the backseat with everyone else.

Institutions faced with this critical decision need to decide what is the ultimate aim of such a review. While an internal review offers an institution the opportunity for self-protection, an independent review offers an institution something far more profound. It offers the institution an opportunity to understand where it failed in order to demonstrate authentic repentance to those who have been hurt and to make the necessary changes so that the same offenses are never repeated.

It is up to the watching public to make sure the institution is not misleading victims, witnesses and other interested parties regarding the true nature of the review. An internal review disguised as an independent review ultimately deceives and exploits the very people the process is supposed to empower and serve. In these circumstances, the testimonies of unsuspecting victims and witnesses often end up being used to protect the institution, not to find the truth.

What is the difference between an internal and independent review?

Ultimately, it’s all about control. An internal review is when the institution being investigated is ultimately in control. Independent reviews require that the independent reviewer is ultimately in control. That difference is fundamental. Here are a few helpful factors to consider when attempting to discern whether a review is internal or independent:

Control of the reviewer.

An internal review means that the institution has control over the person or entity doing the
review. A reviewer who has a fiduciary duty (that is a legal duty to act primarily in another party’s interests) to the institution being investigated is not independent.

That sounds proper and professional until one realises that the institution not only determines its own interests but is also able to dictate those interests to those who are hired to investigate it. For example, lawyers owe their clients a fiduciary duty. When a practicing attorney or law firm is hired to conduct the review, the institution is in the driver’s
seat, and the process is not independent.

Even when a reviewer may not have a fiduciary duty to the institution, the review will still lack independence if the review agreement allows the institution to have any control over the reviewer. This can include anything from determining who is on the review team to requiring updates on specific investigative findings. A review that is authentically independent means that the institution being investigated is not in the
driver’s seat.

Control of the process

The process of an internal review is defined and controlled by the institution. Internal reviews grant the institution ultimate authority on what evidence can be reviewed and considered by the reviewer. In an independent review, that authority lies with the independent reviewer.

In fact, the responsibility of the institution should simply be to fully cooperate with the independent
reviewer. Internal reviews also allow institutions to control the process by unilaterally defining the scope of the review. For example, it is not uncommon for internal reviews to focus primarily upon the actions of the reported offender/s while ignoring or minimizing the focus on any potential failures by the institutional leadership.

Such a self-serving limitation intentionally covers up some of the most egregious behaviour related
to the abuse. An authentically independent process begins with the institution and independent reviewer negotiating a well-defined scope of the review. However, once that has been agreed upon, an independent review requires the institution to step back and prohibits it from any further involvement other than fully cooperating with the independent reviewer. It is critical to note that regardless of the ultimate agreed-upon scope, the process must prohibit the institution from determining who is interviewed, how such interviews are conducted, or limiting the scope of any other evidence the reviewer determines is relevant.

Control of the findings

In an internal review, the institution being investigated can have complete access to the investigative findings. Findings can include witness interview recordings, notes, transcripts and any documents a witness may have turned over to the reviewer.

This means that any highly personal and sensitive information a victim or witness has provided to a reviewer is accessible by the leaders of the very organization that is the subject of the review.

Often victims and witnesses are never informed of this when they reluctantly sit down to be interviewed in a process they have been assured is “independent.” An authentically independent review will prohibit any third party, including the institution being investigated, from unilaterally accessing any such sensitive and personal data. This provides much-needed comfort to those who participate in the review that their interviews are truly confidential and that the reviewer is not under the control of the institution being investigated.

Control of the final report

One of the most disconcerting characteristics of an internal review is that the reviewer often works with the institution in drafting and authorising the final report. This means that the very entity being investigated will have significant influence in determining the content of the final report.

Not only does an internal review allow the institution to determine the content of the final report, but it also has the authority to decide who has access to it. I know some abuse survivors who painstakingly participated in what they were told was an “independent” review only to learn later that they were not allowed to read the final report.

Others have told me that they were only entitled to read the section of the final report that referenced their particular situation. Such limited access exacerbates the frustration and pain of those who participated in the review believing that they would learn the truth, the whole truth. This often times leaves many of the indispensable participants feeling helpless and exploited by an institution that continues to sit in the driver’s seat.

An independent review requires the reviewer to draft and authorise the final report separate from any institutional input or control. The reviewer alone determines the content of the final report and who will receive it.

In many independent reviews, a complete copy of the final report is usually provided to the institution and to any reported victim who participated in such a painful and exhausting process. Other independent reviewers will actually require that the final report be made available to the public for all to read. This is especially true in matters of public interest and importance that may empower others to come forward to report abuses. Such transparency will have a unique way of keeping the process accountable and credible.

"I know some abuse survivors who painstakingly participated in what they were told was an "independent" review only to learn later that they were not allowed to read the final report."

The independence of a review will not be defined by the words or assurances of the commissioning organisation. It will be defined by a structure that requires it to step out of the driver’s seat and give up control.

It is only through such a thorough and independent review that organisations will be in the position to honestly and transparently address any reported behaviour and alleged failures of the leadership in not holding the perpetrator(s) accountable when issues of concern were first raised. It is only then that the organisation will be able to honestly address its past and move forward with making the structural changes necessary to ensure that something like this never happens again.

Boz Tchividjian served as a law professor at Liberty University from 2008-2020. He is the founder of GRACE (www.netgrace.org) and is currently an attorney with the law firm of Landis Graham French, PA in DeLand, Florida representing victims of sexual abuse around the country. This piece is adapted from an original column published by Religion News Service in 2015. The views in this commentary do not necessarily reflect those of Religion News Service.

For more information about the independent reviews currently being undertaken by thirtyone:eight go to: thirtyoneeight.org/reviews

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