Peer-on-peer sexual abuse and harassment is an increasing challenge for schools, both secondary and primary, and last year the Department for Education (DfE) released advice for schools to support the consistent management of such allegations.
While the advice is helpful, it skirts difficult issues. In this article, I would like to talk through the guidance and suggest a way forward for the more difficult areas.
It is a depressing fact that this DfE advice and statutory guidance is required at all, but the reality is that many schools are having to manage allegations of pupil-on-pupil abuse, assault and harassment.
This can take place out of school, on the way to and from school, as well as in school. None of us were pretending it didn’t exist and so the advice from the DfE was timely.
The advice – entitled Sexual Violence and Sexual Harassment Between Children in Schools and Colleges – was released in December 2017, updated in May 2018, and the majority of it was included in the latest iteration of the main statutory guidance Keeping Children Safe in Education (September 2018).
It is a detailed piece of guidance that gives practical examples and answers to most of the questions we would have when managing such allegations.
Before turning to the gap that needs plugging, let us first briefly focus on what the guidance requires, and how it supports schools with these extremely emotive allegations.
Importantly, the advice sets out exactly what is meant by sexual violence and sexual harassment. Sexual violence refers to the criminal acts of rape, assault by penetration and sexual assault, as defined in the Sexual Offences Act 2003. Sexual harassment is described as unwanted conduct of a sexual nature. It also makes clear that sexual violence and harassment is unacceptable and must not be considered an inevitable part of growing up or dismissed as banter.
Incidents do occur, and schools need to be equipped to manage them. Early intervention is particularly high on the agenda with a view to preventing escalation.
The advice goes on to set out the steps that schools should take when responding to a report, including risk assessments, investigations, deciding whether to involve other agencies and deciding how to manage on-going contact between the alleged perpetrator and the alleged victim.
It is with this latter point that the most difficult challenge for schools arises. The guidance uses a number of case studies to put its advice into practical situations that could, and do, arise in schools.
However, there are two real problems that schools face when managing these allegations that are not covered in the case studies, and yet one or both of these problems appear in most of the more serious allegations:
- A lack of resources to support an alleged perpetrator who needs to be separated from the alleged victim.
- Parents of the alleged perpetrator and alleged victim refusing to agree to a change of school.
The guidance recommends that, when faced with allegations of sexual violence or harassment that do not amount to rape or assault by penetration, the school should consider the proximity of the alleged perpetrator and alleged victim in shared classes, shared premises and shared transport immediately upon receipt of the report.
On paper this makes sense, but in reality there are some significant challenges. If it is deemed necessary to move one of the children (and the advice says that all actions must be taken against the alleged perpetrator), where do they go?
It may be that another class has space and is suitable, but this is a challenge in GCSE years and in primary schools.
Keeping them apart during breaks and lunchtime may well mean isolating the alleged perpetrator, requiring a staff member to monitor them. Again, resources may be a challenge. It should also be remembered that at this point, the allegation is simply that – an allegation. It has not been investigated and so using the behaviour policy is not an option just yet.
If the police are involved it gets even more complicated.
Let us take an allegation that, sadly, will sound all too familiar: a female pupil alleges that a male pupil raped her outside of school hours away from the school site. The male pupil admits to sexual intercourse but strongly denies rape. The police are involved. The alleged perpetrator and the alleged victim are in the same class.
When these facts or similar present themselves, typically, at least two of these three issues arise.
- The police are investigating and require the school to undertake no investigation.
- The parents of the alleged victim demand that the alleged perpetrator be removed from school immediately because he is obviously guilty.
- The parents of the alleged perpetrator demand that the victim be removed from school immediately because she made it up to cause harm.
In such circumstances the school is stuck between two sets of (understandably) emotionally charged parents, while being armed with little or no facts, and being unable to undertake any investigation.
Both sets of parents refuse a change of schools for their child and the parents of the alleged perpetrator are adamant that no change to his education routine would be fair. Exclusion is not an option because you cannot investigate. The police investigation is likely to take some time and, assuming charges are brought, more time will be needed for a court case and outcome.
So where does the school go from here? Well, the answer is likely to lie in closer multiagency working. The three agencies involved – the school, the local authority and the police – are broadly looking to achieve the same thing: clarity on what happened and appropriate action to safeguard all children involved.
This is hard to do when the school has no facts and cannot investigate. If the school and the local authority agree that it would help for the police to release some information that allowed the school to investigate, and to do so would not compromise the police investigation or the defence case, then in some circumstances, the police would act accordingly.
To support a consistent approach across the country, this is perhaps an issue that the National Police Chief’s Council and/or the College of Policing should consider and provide advice of its own to ensure the right outcomes can be reached at schools. They did an excellent job with “Outcome 21” for sexting offences – a policy which enables police forces to deal with sexting offences without criminalising children and young people – and it is hoped the same can be achieved here.
- Dai Durbridge is a lawyer and safeguarding expert at Browne Jacobson. Visit www.brownejacobson.com
Further information
- Sexual Violence and Sexual Harassment Between Children in Schools and Colleges, Department for Education, December 2017 (last updated May 2018): http://bit.ly/2ASbvks
- Keeping Children Safe in Education, DfE, last updated September 2018: http://bit.ly/2bI2Zsm
- Working Together to Safeguard Children, Department for Education, March 2015 (last updated August 2018): http://bit.ly/2hZOeVM