Protecting the rights of young people who have been accused of sexual abuse or harassment at college

Last year Ofsted was asked by the government to carry out a rapid review of sexual abuse within schools and colleges after there were various newspaper headlines highlighting the prevalence of toxic cultures within a range of educational settings. The focus of Ofsted’s review was understandably about preventing sexual abuse and ensuring that where it does occur, victims are supported to come forward and make a complaint. As a result of that review, the ‘Keeping children safe in education guidance document [2022]’ was published on the 1 September 2022 by the Department of Education. Colleges will be familiar with this document and the statutory guidance it provides. The guidance itself links to a further helpful document titled ‘When to call the police’. 

Colleges will have done significant work already to adapt their policies and procedures in light of the new guidance. This article intends to provide some additional perspective from the accused, young person’s position, for colleges when they are handling allegations of child on child sexual violence and harassment.

It is important to remember that there will be cases where, for many reasons, a young person may have been wrongly accused.  For a young person the consequences of serious allegations being made against them can understandably be devastating. The fact that an allegation has been made, even if this does not lead to a police investigation, can be extremely stressful and often overwhelming.

When the Police become involved halt the College investigation immediately

A key ‘take-home’ is that as soon as you make a decision to call the police, the guidance clearly states that you should halt any investigation, this is necessary in order to remove the risk of corrupting any evidence for example, by speaking to witnesses inappropriately.

In some cases it will be immediately obvious that there needs to be a report made to the police, who will then have to conduct an investigation, however in other cases the requirement to report the abuse or harassment may only become apparent after some preliminary investigation by the College. Adopting the following approach will assist with ensuring that any investigation by a college is conducted fairly, so that the rights of both young people (the complainant and the accused) are respected and protected.

Provide some disclosure to the accused student

Prior to asking the accused student to provide an account, they should be told in detail about the allegation which has been made against them. It is unfair to expect a student to provide a response without enabling them to understand in full the allegation which has been made.

Allow students to be accompanied to any meetings by a parent or guardian

Once a complaint has been made, the accused student will often be asked by a teacher to either verbally provide their account or to write it down. Students may rightly feel concerned about doing this where the allegation is particularly serious. If the police ultimately decide to investigate, their comments or written account can be used in evidence. Students are however expected to give this account without any of the safeguards that for example, would be available to them in a police interview or throughout a police investigation.

A student may ask whether they can bring a parent or guardian with them prior to providing any response to the allegation, this is a reasonable request which ought to be accommodated in order to properly support the student.

Allow the student to have time to consider the allegation

Where the allegation is particularly serious it may be that the student decides that they do not want to answer any questions or that they need time to think about what has been alleged so that they can respond at a later date; that decision ought to be respected by the college.

Communicate clearly and regularly

Clear communication is important for a young person who is subject to serious allegations. The ‘next steps’ as part of an investigation should be outlined to them along with the anticipated timescales.

Document any response

If the student decides to give a verbal account then it would be sensible to document the account and ask the student to review these notes after the meeting and to confirm whether they are accurate. The accused student could also be given the opportunity to write their response in their own time. Records of their account should be retained.

It is important that the record/notes of any meetings do not contain any opinions or judgements made by the professional note-taker – it should only record the young person’s comments.

Children with special educational needs and disabilities (SEND) 

Young people with special educational needs and disabilities (SEND) may require additional support with understanding the allegation that has been made and formulating any response to it. It will be particularly important that the parents and guardians of these young people have the opportunity to be involved in the process.

The Police may investigate years later…

It is important to remember that sexual abuse is often not complained about immediately by victims and as such, it is possible that many years after the event the police may contact a College and ask for information relating to an allegation. It is difficult to accurately recall events years later, for that reason adopting a standardised approach such as that proposed which is recorded will be of assistance during any retrospective review.

Irwin Mitchell can provide detailed support in relation to any investigations relating to child on child sexual abuse and harassment. It will be particularly useful to have external legal advice in cases where the child on child abuse or harassment is serious but where the college is unsure as to whether or not to make a police report.