Interviewing victims of rape & serious sexual misconduct

"Why am I asked such intrusive and personal questions when I’ve been raped or seriously sexually abused at work?" "Why is it essential that those interviewing victims of rape and sexual misconduct in the workplace are specialist investigators?"In this month’s Investigation Insights, our CEO, Ian Hynes, seeks to answer both those questions in the context of a criminal and civil (discipline) investigation.First, let’s set some context:·      1 in 6 women will be raped or sexually assaulted as adults·      Only half of adult victims of rape will ever tell someone·      Only 5% of victims will report to the authorities at the time·      Over 80% never report to the authorities·      Of those offences reported only 1.6% result in criminal proceedings·      Less than 1% of those reported result in a conviction – over 99% do not.·      Many of those not reported to the police are reported as serious sexual discipline misconduct·      Sexual misconduct that might amount to criminality is often investigated civilly·      Over 90% of reported offenders are known to the complainant before the offenceThis article will focus on those incidents that find themselves under investigation in the civil context whilst recognising that at any time of the process the complainant has the option to revert to the criminal context. This is a challenging environment for investigators, as each demand has significantly different standards of proof, beyond a reasonable doubt in the case of a criminal investigation, balance of probabilities in the civil, whilst the burden of that proof will always lie with the ‘official’ side in a discipline context, the prosecution in a criminal context.

Factor in the concept that memory should be treated as a crime scene and not contaminated, by re-interviews for example, that any interview risks additional trauma for the interviewee, then you can start to see the criticality of getting it right the first time.

Indeed, when the tactics of ‘Active Defence’ are factored into the discussion, the imperative to minimise interviews and ‘get it right from the start, become all the more significant lest we “set victims up to fail” (Professor Hope).If and when it comes to cross-examination in any context, criminal or civil, a proficient adversarial defence lawyer will robustly (and properly) challenge the complainant with a dazzling array of non-forensic questions, all designed to deliberately disorientate and contradict as part of an ‘active defence’ strategy, particularly impactive when, during summing up in criminal cases, account inconsistencies are emphasised and highlighted as a weakness.This is particularly unhelpful when many complainants are ‘interviewed’ as many as 9/10 times during the investigation case management process, described to the author by Professor Lorraine Hope as “setting victims up to fail”.As a defence barrister shared with Patrick Tidmarsh, the author of The Whole Story;“Cross-examining rape complainants is ‘like shooting fish in a barrel’”.So much of this is unnecessary and causes avoidable anxiety.As reported, over 90% of reported offenders are known to the complainant before the offence, and by far the most common defence and issue is that of consent. Whilst the value of DNA, CCTV, and other scientific evidence should not be underestimated, it is vital that the value of the forensic investigative interview is reinvigorated and recognised. Commentators are often quoted saying rape is a difficult and complex offence to investigate. The author takes a contrary view, that, in common with all contact offences, most rapes (serious sexual misconduct) are not complex, but they do demand the very best specialist interview skills, tactical use of evidence, and the fusing of technical skills with non-technical ‘soft’ skills.In the case of civil discipline investigation, the likelihood of corroborating scientific evidence is very low so emphasis and reliability on the interview quality become even greater.Re-visiting the question:"Why am I asked such intrusive and personal questions when I’ve been raped or seriously sexually abused at work?"This is a recurring issue, widely misunderstood and misrepresented, and has the potential to cause immense distress unless professionally explained and expectations managed.

The answer really is very straightforward, and a proficient investigative interviewer will ‘nip this concern in the bud’ at the outset of the interview during what is referred to by professionals as the ‘Engage and Explain’ phase.

In the first person it should go something like this: “During your interview, it is very likely that I’ll have to ask some intimate and difficult questions and that I’ll need to probe some areas of your account in great detail if they are relevant to the investigation. It is vital that you understand why I have to do this. It’s not about being in any way gratuitous but if I don’t ask them now, there is every chance you will either need to be re-interviewed or they will be asked in the future at court (panel or tribunal), and that risks you being undermined and increases the risk of not being believed, I hope you understand”.The author has experience interviewing hundreds of rape victims and not once has an explanation along these lines failed to reassure the interviewee of the appropriateness of such questions."Why is it essential that those interviewing victims of rape and sexual misconduct in the workplace are specialist investigators?"In the civil context, serious sexual misconduct that might amount to rape is traditionally dealt with by HR or investigated by a nominated senior manager. Having explained that investigation might move from civil to a criminal at any time, that some very difficult questions will need to be asked, that you can re-traumatise by inappropriate questioning, is it really right to expect an employee with no qualifications or experience to conduct or manage this type of discipline investigation?The author was a contributor to the Stern Review of Rape Investigation, co-author of the investigation chapter of “Witness Testimony in Sexual Cases”, author of numerous rape and serious sexual offence interview strategies, and creator of the 2010 policing model for rape victim interviews.That's why those interviewing and investigating serious sexual misconduct should be trained, qualified, and experienced. The team at Intersol Global is qualified, experienced, and ethically driven to deliver & train individuals on Investigative Interviewing for sexual abuse victims. We are empathetically & ethically led and offer free advice for those who need it.Find out about our team and get in touch for any questions: https://www.intersolglobal.com/