Student rape reports: The battle to be believed (BBC 15/1/20)

(Courtesy of The BBC and acknowledgements to reporter Megan Fisher)

Viewer discretion, language and images of a sexual nature.

https://www.bbc.co.uk/news/av/uk-51073884/student-rape-reports-the-battle-to-be-believed

Intersol Comment

The work we’ve done in HE has halved investigation cost, delivering reliable and safe outcomes in half the time. 

4 years operating in Higher Education as trainers, advisers and investigators consistently highlights 3 key issues that challenge the sector in terms of investigating serious misconduct, particularly where that misconduct might amount to criminality and irrespective of whether those involved are students or staff. Those issues are captured by the ‘3 C’s’:

Competency, Capacity, and Consistency.

University management are undoubtedly experienced at investigating academic misconduct, they’ve been doing it for centuries, but is it really reasonable to expect university staff to investigate serious misconduct offences that amount to criminality? Offences that if they transferred into the criminal arena would be punishable by life imprisonment in some cases? Offences that are usually career threatening, education ending, in some cases life threatening? High risk investigations that demand specialist skills honed and practiced over many years? Skills that take months to train and fade without regular use? You, the reader decide.

This is the COMPETENCY issue.

University staff have a ‘day job’, be it lecturer, professor, HR, PR, or facilities management, day jobs that are ever more demanding and by default demand a loyalty to the institution and the primary role of that job. The job description makes no mention of being qualified to conduct and manage serious misconduct investigations that might amount to criminality and to carry the heavy burden of risk and responsibility that accompanies the role. Are you that person? Have you been in that position?

This is the CAPACITY issue.

With nearly 200 institutions, a staff and student population exceeding 3,000,000, if UK HE was a country it would be about 133rd biggest in the world, all delivering education to a regulated standard but totally inconsistent with investigation policy, practice and procedure. Why is that important? Because any investigation takes place in the context of prevailing regulations, codes and policies (notwithstanding statute will always top-trump!) and to a burden of proof, balance of probabilities, that is always a challenge. The basic principles of investigation remain consistent, it’s context, proportionality and relevancy that changes. Any attempt to undermine a case will focus primarily on those processes and inevitably draw comparison across the sector with the aim of undermining and/or exposing flaws (Active Defence, Ede AND Shepherd). It is the authors view that this the 3rd ‘C’ is most likely to trigger a judicial review, hopefully before a VC, Provost, CEO, (or whoever) finds themselves on the receiving end of a corporate gross-negligence manslaughter investigation.

This is the CONSISTENCY issue.

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“The battle to be believed”

Always a difficult and ‘prickly’ issue from an investigative perspective and the root cause of repeated failure to deliver safe and reliable investigation outcomes. ‘Automatic belief’ in the investigative context flies in the face of open-mindedness, non-judgementality, and the investigators nemesis – confirmation bias.

The requirement for empathy as an investigator is absolute, sympathy and emotion less so, emotional intelligence crucial. What is key in this regard is what’s known in the trade as the planning and prep and ‘engagement’ phase of the interview within the PEACE framework, the phase in which the interview ‘contract’ is entered into. Perhaps ask the internal HE investigator what they understand about this phase? If they can’t answer convincingly they MUST not be commissioned to interview or investigate the serious misconduct we are discussing.

One of the students in the clip refers to a feeling of ‘interrogation’, to being asked personal questions. Indeed we have faced some criticism (born out of misunderstanding) in this regard so let’s be absolutely clear on this issue.

Most investigations in the context we are exploring rely entirely on witness testimony. Rarely is there a dispute that an incident happened, if it’s a sexual misconduct investigation the core issue is almost always consent. Frequently only 2 people truly know whether it was consensual and why forensic interviewing of the reporting and reported parties is critical. It therefore follows that the planning and engagement phase is crucial, this is the opportunity for the interviewer develop rapport, to explain the reasons for the interview and why intrusive questions might need to be asked, what will happen, the journey the interview will take, and the ground rules. This is better known as the 4 Rs within the PEACE framework, Rapport, Reason, Route Map and Rules.

As long as the topic and questioning lines are relevant and proportionate our associates explain to the interviewees that if the hard questions aren’t asked and addressed ‘now’ (at the front end of the process) they can be assured that they will be later on, perhaps by a lawyer or panel. It is part of doing our best to ensure fair and reliable outcomes for ALL stakeholders.

In commenting, the authors suspicion is that any perception of ‘interrogation’ is likely due to any combination of lack of rapport, empathy, explanation, misunderstanding, and poor style.

To end with a positive take-away a reasonable explanation of this issue might include something like this”

“…..(other issues covered).. so as the interview develops XXX, and because this investigation hinges on your word against YYY, it is likely that I will have to ask you some quite delicate and probing questions, some of an intimate nature. Please understand that I won’t ask them  gratuitously, without reason, but if we don’t explore all the relevant issues together now, it may be that you have to be re-interviewed about them, that a fair and reasoned outcome cannot be determined; but, perhaps most importantly for you, they will likely be asked by a lawyer or panel member if a discipline hearing ensues and me not asking the hard questions now would be letting you down…….”

Please, not a one-size fits all but hopefully some researched evidence to support some of the rationale in the commentary above. Take it in the spirit it’s intended!

The work we’ve done in HE has halved investigation cost, delivering reliable and safe outcomes in half the time. 

If you, or anyone you know, would like to understand more about how we’re working with HE to support competency, add to capacity, and deliver consistency please contact us at info@intersolglobal.com

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