Everyone’s invited… except the Authorities

29th March 2021 Business Crime

The latest news reports have put into focus thousands of sexual assault and rape allegations made by the students of various Schools and Universities through the website Everyone’s Invited. Rape culture has been ‘tolerated’ by staff at Highgate School, according to one student’s account, with The Times reporting that the School’s head teacher, Adam Pettitt, has put PR before pupils in this respect. However, England’s children’s commissioner Dame Rachel Mary de Souza has said that Schools ‘must involve police’ in serious allegations of sexual violence or harassment (BBC News).

Despite what appears to be straightforward advice on the issue, there is growing concern that some Schools and Universities are more concerned with protecting their reputations rather than prioritising student safety and reporting deserving matters to the Police. In this blog, we highlight some of the reasons this approach is undoubtedly going to prevent justice from being achieved for both the complainant and the alleged perpetrator.

With any allegation of serious sexual assault it is crucial that matters are reported to the Police expeditiously otherwise there is a real risk that vital evidence may be lost. For example, first accounts from victims, witnesses and the suspect that are delayed will become less accurate over time, opportunities to obtain forensic evidence will be missed and independent evidence such as CCTV may be deleted. This means that the chances of a fair and just investigation by the Police will be hindered when, if at all, an allegation is eventually reported to the Police.

It is well reported that offences of sexual assault have poor convictions rates. In September 2020, the Government’s official statistics revealed that only 1.5% of reported rape allegations that year led to a suspect being charged or receiving a summons, while 56% of cases had failed due to ‘evidential difficulties’ and 32.1% had not yet been assigned to an outcome. Of the cases that went to trial, the number of rape convictions in England and Wales during 2019-2020 fell to a record low of 1,439 which is a conviction rate of 68.5% (CPS data summary). Given the high percentage of cases already impacted by delay and/or evidential difficulties and the low conviction rates that follow, it is imperative that educational institutions do not hinder the investigative process further by delaying or failing to report matters to the Police.

Some institutions, such as Universities, choose to conduct their own internal investigations for issues such as sexual misconduct rather than reporting them to the Police. This is alarming given the serious criminal nature of the allegations because, in effect, the Universities are conducting their own investigation and prosecution without the safeguards that are in place in a criminal prosecution.

Universities conducting investigations internally are not obliged to follow the rules of evidence of a criminal court, they often fail to scrutinise testimony by cross-examination and there is no requirement to meet the criminal burden of proof (beyond reasonable doubt) before reaching conclusions – instead, they often choose to follow the civil standard (balance of probabilities) which is a much lower threshold.

There are many troubling issues with this process. Students can feel forced into a situation where they must comply with an internal investigation, as failure to do so may result in them losing their position at the University, but any account given could eventually be passed to third parties such as the Police and used against them in a later prosecution. A student who wishes to avoid this by exercising their right to silence, as they are entitled to do so in a criminal investigation, may be suspended or removed from their education at the establishment because the account of the victim is accepted without the requisite scrutiny a criminal trial would demand.

With the statistics as reported, Schools and Universities that do not act expeditiously to report such allegations to the Police, opting instead to protect their reputations by “covering up” the allegations or investigating them internally, will prejudice the rights of both the victim and suspect to a fair and just trial. Delays in reporting will inevitably lead to an inability to preserve crucial evidence capable of either proving innocence or guilt and, in turn, lead to injustices.

The author of this blog, Amy Shaffron is a Senior Associate in London and can be contacted via Amy.Shaffron@JMW.co.uk or via the website. Amy regularly advises both victims and suspects in relation to serious allegations of sexual assault and has been involved in cases such as ‘Operation Winthorpe’ dealing with historic allegations of sexual misconduct in educational facilities.

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Amy Shaffron is a Partner located in London in our Business Crime & Regulation department

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Michael Rimola is a Trainee Solicitor located in Londonin our Trainee Solicitors department

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