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managing sexual violence and harassment between pupils - the practical challenges for schools

18 December 2018

Peer-on-peer sexual abuse and harassment is an increasing challenge for schools – both secondary and primary – and the Department for Education (DfE) released advice for schools to support the consistent management of such allegations in December 2017. Whilst this advice is helpful, it skirts the most difficult issue. In this article, leading education safeguarding lawyer, Dai Durbridge, talks through the guidance and suggests a way forward for the more difficult areas.

It is, perhaps, 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, and assault and harassment taking place in school, out of school, and on the way to and from school. None of us pretended it did not exist and so the advice from the DfE was timely.

The advice, 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 as a new Part 5 to Keeping Children Safe in Education 2018, the main statutory safeguarding guidance, which has been in force since September. It is a good advice document. It is detailed, gives practical examples and gives answers to most of the questions we would have when managing such allegations.

Before turning to the gap that needs plugging, let’s first briefly focus on what the guidance requires of us 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 early in the document. 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. They do occur and schools need to be equipped to manage them with early intervention high on the agenda with a view to preventing escalation.

The advice and the guidance then goes on to set out the steps schools should take when responding to a report, including risk assessments, investigating, deciding whether to involve other agencies and deciding how to manage ongoing contact between the alleged perpetrator and the alleged victim.

It is with this latter point that the most difficult challenge for schools arises. The advice uses a number of case studies to put the advice into practical situations that could and do happen in schools.There are two real problems that schools face when managing these allegations which 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, and parents of the alleged perpetrator and alleged victim refusing to agree to a change of school.

The advice and the guidance recommends that when faced with allegations of sexual violence or harassment which 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 and should be considered 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’s 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:

  1. The police are investigating and require the school to undertake no investigation
  2. The parents of the alleged victim demand that the alleged perpetrator be removed from school immediately because he is obviously guilty
  3. 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, are armed with little or no facts and cannot undertake any investigation. Both set 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? Well the answer is likely to lie in closer multi-agency working. The three agencies involved – the school, the local authority and the police – broadly are 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 have no facts and cannot investigate. If the school and the local authority agree that it would help for the police to release some information which 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 can 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, and it is hoped the same can be achieved here.

The article was first published by Sec Ed on 7 November 2018

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