Within days of each other in August and September 2016, Phillips Academy Andover and St. George's School disclosed the names of past faculty or staff who had engaged in sexual misconduct. Both disclosures were made following independent investigations into past instances of sexual misconduct. In the case of St. George's, the disclosure was part of a lengthy and publicly issued report by an investigating firm. The Phillips Academy disclosure was part of a letter to the community. Both the SGS report and the Phillips Academy letter provided details on the criteria used to decide whether to make the disclosures. In the case of SGS, the investigator made the decision, whereas the School made the decision at Phillips Academy.
Since then, a number of schools have made similar disclosures, while others have chosen not to do so. At least eight schools1 have described to their communities how they decided whether to disclose names of faculty or staff who engaged in sexual misconduct with students. Right now, other schools are conducting investigations and trying to decide how to make this significant decision.
Schools struggle with this issue because of the way independent investigations are conducted. The job of the investigator is to make findings of fact. These days, virtually all investigators examining historical sexual misconduct claims are using what is known as the "preponderance of evidence" standard, which currently is required by the federal government in Title IX investigations, (although this may change under the current administration). It has become the de facto standard for all types of independent investigations into sexual misconduct, regardless of whether a school is covered by Title IX. Under the preponderance standard, the investigator determines whether it is more likely than not that the claims made are true. It is the lowest standard of proof at law. There are other standards of proof at law. The highest is beyond a reasonable doubt, which applies in criminal cases. In between the preponderance standard and the criminal standard is the "clear and convincing evidence" standard. According to the federal Model Jury Instructions, this standard means that the "evidence leaves you with a firm belief or conviction that it is highly probable that the factual contentions of the claim or defense are true. This is a higher standard of proof than proof by a preponderance of the evidence, but it does not require proof beyond a reasonable doubt."
Another important factor that complicates decisions about disclosing names is the practice of permitting alumni who have been sexually abused to keep their identities confidential if they wish. This option encourages survivors to come forward so that investigators and schools can learn as much as possible about past misconduct. However, it also creates an inherent tension relating to disclosure of names. Martin Murphy addressed this issue directly in his September 2016 "Report of Investigation on Sexual Assault At St. George's School". His analysis on this important issue is worth reviewing:
"But our agreement to keep the identities of former students confidential comes with a price—the prospect that unreliable allegations could become part of a public report. "Naming Names" can lead to drastic consequences for a teacher or former student who may be wrongly accused. This issue is not new. The Right to Confrontation adopted as part of the Constitution's Sixth Amendment was designed to protect citizens against "flagrant abuses, trials by anonymous accusers, and absentee witnesses," Cal. v. Green, 399 U.S. 149, 179 (1970) (Harlan, J., concurring). To be sure, our investigation is not a trial, but the principles that animated the adoption of the Sixth Amendment are deeply engrained in our country's basic sense of fairness. This issue stands in even sharper relief here. In some instances, 45 years have passed since the events at issue; the passage of time, and the problem of faded memories and deceased witnesses, can confound even the most diligent fact finders. No credible investigation would merely recite, without independent assessment and evaluation, allegations made by witnesses who have been promised confidentiality.
To strike the appropriate balance between identifying perpetrators, protecting the identity of alumni who wish to keep their identities confidential, and taking every reasonable step to avoid the possibility of making unfair public accusations against faculty and staff, we have adopted the following practice:
[W]e have identified by name the faculty and staff members who engaged in, or allegedly engaged in, sexual or personal misconduct when allegations against them are supported by multiple credible accounts or independently corroborated evidence..."
The Murphy Report may have been the first to address the tension between the desire for transparency and the effort to maintain fairness, but it was far from the last. It is clear from a review of the criteria published in recent disclosures from multiple schools that while the criteria for disclosure of names differ in their description, they share common attributes. [See Appendix below for the actual criteria used by the various schools.] First, and perhaps most important, the investigator or school must have made a decision that the report of abuse or misconduct is credible. In other words, the investigator has concluded that the abuse or misconduct occurred based, at a minimum, on the legal standard of a preponderance of the evidence. Quite simply, consideration for disclosing a name should only occur if it is more likely than not that the abuse occurred.
Yet even when this initial threshold is met, nearly all schools have required something more before disclosing names. The "something more" is usually corroborating evidence, such as "multiple credible accounts," or "repeated instances" with more than one student. Nearly every letter or report that we have reviewed included among the criteria for disclosure of names the existence of multiple reports (presumed to be credible), an admission from the perpetrator, documentary evidence such as letters (which may amount to an admission) or judicial findings. While none of the schools has specifically referenced the criteria for disclosure by citing this higher standard, each of them has articulated evidence greater than a mere preponderance to meet the threshold of disclosure. In short, for most schools, a determination that abuse occurred by a preponderance finding is a necessary prerequisite to disclosure, but is not a sufficient basis for that disclosure.
Footnotes
1St. George's School, Phillips Academy, Milton Academy, Phillips Exeter Academy, Pingry School, Choate Rosemary Hall, Emma Willard School and St. Paul's School.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
