After rape allegation against Washington state Sen. Joe Fain, questions linger over who should investigate

OLYMPIA — After a Seattle woman last week accused Washington state Sen. Joe Fain of rape, he denied the allegation and invited an investigation. Senators in both parties, as well as Gov. Jay Inslee, said they welcomed an inquiry of some kind.

Now, officials are struggling over how to investigate a matter that some are calling an unprecedented situation.

In the wake of last Thursday’s Supreme Court hearing, Candace Faber tweeted that Fain raped her in 2007 in a Washington, D.C., hotel room on the night she received a master’s degree.

Faber has said there are witnesses who would corroborate her whereabouts that night, and that she has evidence that she was in Fain’s hotel room that night.

But Faber also said she does not plan to sue Fain or seek a criminal or civil investigation, though she would participate in one.

“I am not particularly interested in getting a lawyer and going through such a process, but I will submit to that if that is what is necessary for Mr. Fain to acknowledge the truth,” she told The Seattle Times last week.

The U.S. Attorney’s Office in the District of Columbia this week declined to comment.

The development leaves state officials struggling over how to respond, according to Secretary of the Senate Brad Hendrickson.

“Were such an incident to take place during a member’s tenure in the Legislature, Senate Administration would immediately call upon law enforcement to investigate,” Hendrickson wrote in an email. “The criminal nature of these allegations, the fact the incident took place outside of Washington State before Senator Fain began serving in the Legislature, and the survivor has publicly stated she will not be independently pursuing charges, make for an unprecedented situation.”

“This is a very serious matter and is being treated as such,” he added. “We are carefully weighing all options.”

Those circumstances contrast to the outside investigation commissioned byHouse officials earlier this year against Rep. David Sawyer, a Democrat from Tacoma. That review, sparked after a legislative staffer made a complaint that Sawyer’s behavior was contributing to a hostile workplace, went on to find that the representative violated House policies on harassment and workplace environment. He went on to lose his primary race in August.

Fain, 37, is a politically moderate Republican from Auburn who is up for election this November. After Faber’s tweets, Fain denied her account in a text message.

“I absolutely deny what Ms. Faber is accusing me of,” he said. “Any allegation of this serious nature deserves to be heard and investigated for all parties involved. I invite and will cooperate with any inquiry. I ask everyone to show respect to Ms. Faber and to the process.”

Fain on Tuesday did not respond to text messages seeking comment.

Sen. Ann Rivers, R-La Center, who has served as a leader for the GOP Senate on sexual assault and harassment issues, praised Fain after the allegations came out last week for his willingness to cooperate in any investigation.

“We would hope people will allow any investigative process to be completed before drawing conclusions,” she said at the time.

Republican Senate Majority Leader Mark Schoesler of Ritzville referred questions about how an investigation should be conducted to Rivers, who did not respond to emails seeking comment on Monday or Tuesday.

After the news broke last week, Gov. Jay Inslee’s office said the governor believes that the allegations deserved “a full investigation by law enforcement officials.”

On Tuesday, Inslee spokeswoman Jaime Smith said that the governor is open to a review by an entity other than law enforcement, “if that’s the route that all the parties agree would be the most productive.”

If the Senate doesn’t act, it remains to be seen whether a state agency such as the Washington State Patrol, which wouldn’t have jurisdiction, could conduct an investigation or fact-finding mission.

“We haven’t been asked to do that, and something like that would be a formal ask to the chief,” said Capt. Monica Alexander, spokeswoman for the patrol, which is led by Chief John Batiste. She added: “I’m sure the chief would consider it.”

Sen. Manka Dhingra, D-Redmond, and a senior deputy prosecuting attorney for King County, said that in sexual assault cases care must be taken not to re-traumatize the victim.

But, “I always encourage survivors to report if and when they can,” said Dhingra. “It’s important to have an independent investigation.”

Dhingra, along with Rivers, has been involved with helping the Senate respond to the #MeToo movement and the discussions about harassment and assault that have taken place in Olympia since last year.

The Senate this summer approved the creation of a human-resources position to receive and investigate complaints against staff and lawmakers in that chamber.

The chamber is currently reviewing résumés for that position and will conduct final interviews sometime this month, according to Hendrickson. The House is undertaking a similar process to review and strengthen its workplace policies.

The Legislature may have to find ways to handle issues such as this one, Dhingra said.

“Given what’s going on with the #MeToo movement, we may have to come up with a process,” she said. “This is not a partisan issue, this is happening on both sides.”

But for now, Dhingra said she doesn’t see a pathway to conduct and finalize an investigation by the time of the November elections, “unless the survivor wants to go talk to D.C. police.”