Investigations of Misconduct Cases Explored, Defined
While some alumni have voiced concerns about the independence of Exeter’s investigation in response to the series of sexual misconduct cases reported in the past year, the Academy’s external legal counsel, Nixon Peabody, has hired the law firm Holland & Knight to conduct a long-term and impartial investigation. After the conclusion of the investigation, the trustees will read Holland & Knight’s report and determine what to release to the community, while preserving the privacy of those involved.
Exeter alumni and community members seeking to report past or current cases of sexual misconduct can make reports through the administration, Nixon Peabody or through an anonymous and confidential reporting line. Reports have ranged from vague rumors to allegations of sexual assault listing names and details, but all are reported immediately to the Exeter Police Department (EPD).
In September, a group of Exeter alumni who call themselves “Exeter Unafraid” released a petition encouraging victims of sexual misconduct at the Academy to refrain from participating in Exeter’s current investigation while it remained “trustee-controlled.” It also called for a more transparent report detailing the cases of sexual misconduct that have occurred over the course of the years to be visible to the public.
“We want to be fair, thoughtful, thorough and aware always of the consequences of our actions.”
Since the petition’s release on Sep. 22nd, 73 alumni have signed it. An asterisk accompanies six of these signatures, indicating alumni who were victims of sexual assault while at Exeter.
Later the same day, The Boston Globe published an article describing the petition. “Dozens of Phillips Exeter Academy alumni are urging abuse victims to boycott the prep school’s investigation into sexual misconduct, calling it a ‘trustee-controlled’ review that so far has contacted few victims,” they wrote.
To ensure a truly impartial investigation into cases dating back to the 1940s, Exeter and Holland & Knight established several protocols to guide their relationship. First, Holland & Knight checked their records to make sure that they had no previous relationship with Exeter, and Exeter did the same. The school also signed a document promising not to hire Holland & Knight for five years after the conclusion of the investigation, preventing the investigation from being conducted from a point of self interest. All of these proceedings were conducted by Nixon Peabody, who also hired Holland & Knight themselves.
The administration and trustees have played no role in the investigation: MacFarlane herself has only met the attorneys of Holland & Knight once. Exeter hired attorney Holly Barcroft to serve as General Counsel to oversee all outside attorneys or law firms performing work for the Academy. Currently, she acts as liaison between both Exeter and Nixon Peabody, and Exeter and the EPD. Nixon Peabody in turn makes reports to Holland & Knight.
To ensure that Holland & Knight can conduct the most thorough investigation possible, Exeter has given them full access to all the school’s information, documents and records. On occasion, the firm comes to campus to speak with current faculty or to learn more about the layout of the campus. During their visits, Holland & Knight are given a secure and confidential room where they can do their work privately.
President of the Trustees Eunice Panetta ’84 commented on the progress of the investigation. “Holland & Knight has been working for several months on the first group of allegations that were cleared by the Exeter Police, and, at this point, their investigators know our school well,” she said. “While they operate at an impartial distance from the school and from the trustees, their work product to date has been professional, thorough and fair.”
Some members of the Exeter community have expressed concern that Holland & Knight have not been efficient enough in their handling of the investigation.
Attorney and alumni Valerie Wagner ’83 said, “One of the concerns raised by the Exeter Unafraid initiative is that Holland & Knight only started interviewing victims in September, almost five months after being retained to do an investigation.” However, MacFarlane and Barcroft explained that by New Hampshire Law, all cases reported must go through the EPD before they may be investigated by Holland & Knight.
The school is also required to report all cases involving suspected abuse or neglect of a minor under the age of 18 to New Hampshire’s Department Division of Children, Youth, and Families.
The EPD must inform Barcroft that each case has been closed officially before she can report the cases to Nixon Peabody. In turn, Nixon Peabody reports the cases to Holland & Knight, who then conduct their own investigations, completely separate of the EPD’s. “Holland & Knight cannot begin an investigation and cannot have any contact with survivors or other witnesses until the EPD case has been officially closed,” Barcroft explained.
Though MacFarlane and Barcroft both expressed hope that the investigations could proceed more quickly, they commended the EPD for their work. “We trust and believe that the Exeter Police Department performs its work very carefully,” Barcroft said.
She also acknowledged the challenge investigators face as they aim for both efficiency and thoroughness. “It is important to us that all investigations we commission be completed thoroughly and in a way that ensures accuracy of conclusions reached,” she said. “There is a balancing point where the investigative work is done thoroughly and carefully, but also at a speed which reflects a sensitivity for the desire of survivors and other concerned parties to reach a point of finality expeditiously.”
“It is not a perfect process or an easy process,” she continued. “But everyone involved is doing their best.”
Until recently, Exeter had not been allowed to have contact with any of the survivors who came forward until the case has gone through the EPD. However, the EPD has begun to let the school get in touch with some of these people, depending on the case. “The EPD has very graciously allowed us to contact survivors during the police investigation to offer our counseling program and to express concern and sympathy for the survivors,” Barcroft explained.
Once the case is in Holland & Knight’s hands, either MacFarlane or Panetta always contact those who have come forward personally, seeking to provide them with any support possible. This includes covering the cost of counseling and of any traveling expenses that the investigative process might incur.
Holland & Knight periodically sends the Academy summary notes and suggestions for best practices and precautionary measures, helping Exeter to design procedures conducive to a safe campus. “Holland & Knight’s findings will be used to assist us in making what amends we can for any harm done to Exonians as a result of sexual misconduct at Exeter,” MacFarlane said. “And to ensure that our current practices are the best they can be.”
Panetta echoed MacFarlane’s sentiment, saying, “We will very seriously consider any recommendations Holland & Knight have for improvements in how we can prevent these incidents and deal with them effectively when they do occur.”
Though the Exeter Unafraid petition had called for an entirely transparent report, how the findings will be conveyed to the community will be decided by the trustees after the conclusion of the investigation, taking into consideration the security of those involved.
When the trustees make this decision, MacFarlane is hopeful that certain principles will guide them, including the continued support and protection of survivors and any innocent parties involved. “What to make public is an important question,” she said.
She worried that publicizing the identities and stories of victims might serve only to retraumatize them and disrupt their healing process. MacFarlane also noted the risks of naming assailants without clear and compelling evidence against them.
“It harms innocent people when others speculate on their identity or ascribe feelings or actions to them that they themselves do not claim; or when someone is publicly accused who then turns out to be innocent,” MacFarlane said. “Those situations don’t happen often, but when they do, they do irreparable harm to people who are vulnerable.”
“We want to be fair, thoughtful, thorough and aware always of the consequences of our actions,” she said.