A Statement on the Husch Blackwell Report
The ACNAtoo survivors and their advocates have consistently requested a demonstrably independent third-party investigation and identified concerns about the ACNA’s contract with Husch Blackwell (HB). HB’s public report, released on September 27, 2022, provides ample evidence those concerns were justified, as we will explain below and in upcoming posts.
All third-party investigations are governed by a contract. While the ACNA’s contract with HB is private, a survey of relevant case studies confirms its limitations. HB has conducted many in-depth investigations, including this prominent one into Louisiana State University’s Title IX violations. Even a cursory pass through the LSU and other publicly available HB investigation reports reveals significant contrasts with the Upper Midwest Diocese (UMD) report. This contrast can only be understood as a direct result of the ACNA’s contract with HB.
In this statement, we limit our analysis to concerns about the insufficient investigation scope—which includes a lack of assessment and recommendations—and significant evidence gaps related to the ACNA’s refusal to waive attorney-client privilege.
Lack of assessment and recommendations
In mid-2021, survivors and advocates shared with the ACNA that, based on their recent experiences working within the UMD’s official channels, the scope of the investigation needed to expand beyond the presenting incident, which was the first allegation against Mark Rivera in May of 2019. A thorough investigation would examine issues including diocesan child safety policies, canonical accountability structures, and any current or prior allegations of abuse or mishandling. Such thoroughness would help people understand how and why various agents involved in mishandling the 2019 allegations acted in the ways they did. As the PRT began the investigation firm selection process, ACNAtoo repeatedly requested that these elements be included in the scope of the investigation.
Note how HB states in the report introduction: “We were explicitly directed not to render any legal determination, evaluate or opine about any structural governance issues or to seek to address whether discipline was warranted.” (p. 1)
In the conclusion, HB writes: “Per the terms of our engagement, we have not rendered any legal determination or assessment of other policies or rules.” (p. 57)
In other words, the Province ignored survivor and advocate concerns and instead limited the scope of what HB could investigate and specifically prohibited them from analyzing the data they collected.
Consider the contrast between the ACNA’s stated directives to HB above and LSU’s mandate in their investigative contract:
To the extent information gleaned over the course of our review uncovered concerns, you asked HB to make recommendations (informed by community input) designed to address those concerns with the overarching goal of meaningfully improving LSU’s efforts to prevent and effectively respond to sex-based misconduct and creating a Title IX program that the University community could have confidence in. (p. 1)
Similarly, Binghamton University requested that HB provide an outside analysis that included:
An assessment of the University’s Title IX policies and procedures and student conduct process, and benchmarking those policies and procedures against peers and best practices;
An analysis of best practices at comparable institutions as it pertains to sexual assault education and prevention strategies, victim support services, and staff training and benchmarking Binghamton against best practices;
Recommendations for improving Binghamton policies, procedures, prevention and support services and training; and
Recommendations regarding organizational structures to most effectively utilize University resources to sustain a leading and innovative program of sexual assault prevention and response. (p. 4)
The ACNA Provincial Response Team assured survivors and advocates they were seeking independent expert advice during the process of choosing an investigative firm. Their actions, however, barred even the professionals they hired from fully offering their expertise. HB delivered no evaluative statements, guidance for next steps, or professional judgments; they were solely tasked with collecting information. In the end, while the professionals conducted the investigation, the Province will interpret the results: “The purpose of this report is to provide a comprehensive summary of the information collected so that the province can assess it and determine any responsive actions.” (p. 57, emphasis added)
This invites the question: why ask parishioners to pay for a professional investigation by a reputable firm if the contract excludes their expertise, prohibits their evaluation of evidence and testimonies, gives no assessment on policies and procedures, and explicitly refuses recommendations that could improve the safety of the church and protect it from future liability?
Insufficient evidence gathering
A thorough investigation examines the culture, context, institutional structure, and history of the organization (see the GRACE report on St. Peter’s, the Pellucid report on Jay Greener, and the Guidepost report on the SBC). Facts do not exist in a vacuum. Skilled investigators know this and, if allowed by the contract, account for it in their reports. Competent analysis requires knowledge of the type of evidence collected, the quantity of that evidence, and the restrictions on that evidence. For instance, if the only evidence provided was self-selected by the implicated parties, does that offer a complete picture for analysis? The HB report does not include an explanation of their evidence parameters or collection process in the UMD investigation; however, when the institution declines to waive attorney-client privilege, as the ACNA did in this case, that privilege automatically protects crucial internal communications and other corroborating evidence from discovery. It is impossible to claim a comprehensive factual investigation while excluding select evidence.
Furthermore, narratives change to accommodate new information, and within the report we find numerous discrepancies between current recollections as relayed by interviewees and the original communications that reflect the reality and context at the time they occured.
It is theoretically possible HB collected all relevant communications, emails, text messages, and meeting notes, but the absence of any time-stamped correspondence to leaders at Resurrection and/or COLA to or from, for instance, former UMD Chancellor Charles Philbrick (a key participant in the 2019 mishandling whose communication would be considered privileged), is concerning. Such documentation would corroborate or contradict church leaders’ oral testimonies to HB and would establish an understanding of the culture of the COLA and Resurrection communities. This would help answer the central question of whether or not that context (the UMD) is a safe one in which to report abuse.
There are other troubling omissions. For instance, the Rev. William Beasley’s allegedly falsified insurance application is clearly documented in the report (pp. 38-39), yet an examination of diocesan child protection policies is absent. Missing pieces like these could help reveal cultural decision-making patterns in the UMD, something especially relevant for Church of the Resurrection, a church with a well-known ministry to those suffering from abuse, trauma, or sexual violence. By limiting the scope of this investigation and refusing to waive privilege, the ACNA hindered comprehensive discovery and rejected the opportunity to receive expert recommendations.
Questions that remain
The report states that the scope of HB’s contract prohibited them from drawing legal or ethical conclusions and from characterizing the facts based on their extensive experience. To whom is that task left? Does the Provincial Investigative Team include experts in child safety and sexual abuse prevention who can parse the details of this report and deliver a qualified analysis? How many ACNA bishops have experience vetting investigation reports? How many bishops have active abuse and mishandling situations in their dioceses? ACNAtoo currently knows of at least seven. Will the bishops in those seven dioceses read this report, and, if so, what conclusions will they draw about the type of investigation to pursue? What precedent will this set?
Please read the bios of the Provincial Investigative Team here and decide for yourself if they have the skill sets specific to abuse response and prevention that would make them your first choice to render an institutional assessment. Also note that all but one member of the PIT are ACNA leaders. Would you consider an investigation in which the institution investigating itself is responsible for all interpretation and recommendations to be legitimately independent?
Even if you do not have a stake in the future of the UMD, do you accept this outcome as a precedent for your church or diocese? Are you confident in the actions of leadership at each stage? If not, do you see leaders demonstrating humility and ownership of error? If the first victim to come forward were your child, would you see this report, watch this process, and feel satisfied that justice was done on behalf of your child?
Note: As of publication, the report in question has been taken down from the ACNA website for an unspecified period of time. The original report was released the evening of September 27. Numerous survivors and advocates contacted the Province and Husch Blackwell, beginning on the morning of September 28, after discovering that Husch Blackwell failed to redact graphic alleged details of a minor survivor’s sexual abuse in the public version of the report. The ACNA removed the report from its website on September 30 and released this announcement on October 1.