WHO’S TRUTH IS THE TRUTH
Who's truth is the truth?
I often hear investigations described as a search for the truth. The reality of being an investigator in civil law settings, such as workplace/study place/ sports etc, and investigating a report of sexual misconduct, reported to have happened in a private room with no witnesses can be more complicated than that.
Let's look at a scenario
Person A - the reporting party, states that they were subjected to a sex act by person B without A's consent. The sex act took place in private with no witnesses.
Person A is over 18yrs old and does not want the employer/provider to involve the police and the employer/provider does not see a high enough risk to other employees/students to report the matter to the police against person A’s wishes.
Person B the responding party, states that sexual activity of the nature reported by A took place, but it was with A's consent.
Both person A and B believe that they are telling the truth - so who's truth is the truth?
The investigator in this case is not conducting a criminal investigation. The investigator’s role is to investigate the report in a fair, unbiased way, in line with natural justice, and gather evidence to allow a finding on the civil standard of proof - on the balance of probabilities.
The burden of proof is with the employer/provider, to show that person B was more likely than not to have breached the relevant company/provider's codes of conduct, the burden is not with person B to prove they did not.
Experienced investigators know that it is possible for A and B to perceive the events that took place in the private room differently and both to be convinced that their perception of events is the only truth.
The issue here is consent. Did person B reasonably believe that consent for each sexual act and continuous throughout the duration of the sexual activity was freely given by person A.
So, where to begin?
Policies.
Employers and providers should have in place clear policies to ensure compliance with current legislation and guidance.
The Worker Protection (Amendment of Equality Act 2010) 2023 places a duty on employers to take reasonable steps to prevent employees from unwanted conduct of a sexual nature, which includes investigating reported incidents.
The new Office for Students condition of registration for Higher Education providers E6 comes into effect on 1st August 2025 and similarly places a duty on universities to protect students from harassment and sexual misconduct, which includes investigating reported incidents.
Both of the above include the requirement that staff acting as investigators and decision makers, in these matters should have received specialist credible and meaningful training delivered by those with demonstratable experience. In my view this training should include modules on trauma informed, person centred investigation methods.
It is good practice to have a stand-alone sexual misconduct policy making it clear to employees/students what to expect when they report or are reported for a potential breach of the policy.
Terms of reference
Clear terms of reference for the investigator that lay out what is to be investigated.
Investigation plan
The investigator makes a plan of action as to how the investigation will be conducted and timeframes involved (including evidence to be gathered and persons to be interviewed).
Language
During the investigation, the investigator should avoid using bias inducing terms such as ‘victim’ ‘survivor’ and ‘perpetrator’ ‘suspect’ and use neutral language such as ‘reporting party’ and ‘responding party.’
Welfare support
Employers/providers should give equal welfare support to both A and B
The interviews of A and B
At the time of the interviews, the investigator is still in the investigation evidence gathering stage and seeking to establish if there is a need to move to a discipline panel.
The aim of the interviews with person A and person B is for the investigator to gain uncontaminated accounts from each to allow a comparison. Whilst person B should be informed of what they are under investigation for, giving person B the whole of person A’s account and asking them to respond to it at the investigation stage effectively contaminates their account and negates this important aspect of the investigation. Should the matter move to a discipline panel stage then person B will be provided with all the evidence to enable them to defend themselves.
An interview with person A should establish their perception of events. The interview with person B should establish their perception of events.
The interviews with both should cover perceptions of- Any use of force threat intimidation or coercion towards A by B. Any evidence of A’s incapacitation and did or should person B have known this? Any words or actions by A that reasonably indicated to B that consent was freely given or not for each sexual activity and throughout the duration of the sexual activity.
In this scenario- force, threat coercion and alcohol/drugs to the point of incapacitation (though the impact of alcohol/drugs on the memory cannot be overlooked) can be excluded and the focus is on words and actions, including any trauma factors.
This is a particular skilled area of the investigation, and the investigator should be trained in empirically researched interviewing methods including the impact of trauma and alcohol/drugs on the memory – lists of questions should be avoided. Untrained investigators should not attempt to conduct interviews of this nature, there is too much at stake to get things wrong!
There may be additional evidence to consider of events leading up to and after the reported incident, to support or contradict the report made by person A.
The investigator should put equal effort into both gathering supporting and contradicting evidence, before presenting their report to the decision makers.
Ultimately the only evidence of what happened in the private room comes from the interviews with A and B supported/contradicted by limited evidence of before and after. A decision maker must be satisfied that there is sufficient evidence to show that it is more likely than not that the facts, as reported by A, occurred. The importance of thoughtfully planned and executed interviews with A and B cannot be underestimated in the decision-making process and in ensuring fair outcomes in line with natural justice are delivered.
Both person A and person B will continue to believe that their perception of events is true.
So who's truth is the truth?
In this scenario, a fair unbiased investigation can only show, based on the supportive or contradictory evidence gained, which perception of events is more likely than not.
Staff tasked with conducting investigations of this nature should have received specialist credible and meaningful training delivered by those with demonstratable experience. Employers/providers asking untrained staff based on their seniority etc to carry out investigations of this nature are potentially not only not complying with the legislation/guidance, but also being fundamentally unfair to the untrained staff member tasked with investigating and the relevant parties involved in the investigation.
Mick Confrey
Intersol Global
