Are you supporting a young person who has been sexually assaulted by a school peer?
Is that young person expected to continue to go to school with the perpetrator still there?
You may be able to protect the young person from the psychological trauma of having to go to school with someone who has committed a sexual assault on them. You may be able to do this by asserting a victim’s legal rights under the Human Rights Act 1998 (HRA). What follows sets out the legal framework which could protect the young person. If you need support in making a case to a school or Local Authority for a victim’s legal rights to be properly considered, you can seek advice via the links at the end of this page.
This information may be useful for professionals supporting survivors of sexual violence and for any parents or carers of a young person who has been raped or sexually assaulted by another pupil from their school.
The problem
Many schools do not understand the rights of victims after they have reported being sexually assaulted by another student. As a result, schools can sometimes respond to a disclosure in inappropriate ways, which can further harm the victim and may be unlawful.
A school can only protect your child after an assault if they are made aware of the assault. The sooner the assault is reported, the easier it will be to ensure that the victim is properly protected in school from further contact with the perpetrator. Assaults do not have to be reported to the police; many victims find it helpful to report to their local Sexual Assault Referral Centre (SARC).
When a sexual assault has been reported, some schools react by isolating the pupil who has been attacked, as a way of protecting them. This is unhelpful and inadvertent victim blaming, with the victim cut off from friends and their normal routine. Other schools fail to protect the victim from seeing the young person who has abused them while they are in school. This can be very damaging to the victim’s recovery, ongoing mental health, and their education, but can be challenged.
If your child has reported a sexual assault to their school and is not being protected from further unwanted contact with the accused in school, you can ask the school to take further steps to safeguard your child. If they refuse, you may be able to take legal action against the school.
What are a school’s legal duties under the Human Rights Act?
All state schools are state bodies, and all state bodies must respect the rights set out in the Human Rights Act 1998 (HRA). The Department of Education (DfE) guidance for schools, Keeping Children Safe in Education (KCSIE), explicitly refers to schools needing to have due regard for Articles 3 and 8 of the HRA. What this means in practice is not explained in the guidance and many schools fail to consider a victim’s legal rights.
Private schools are not generally considered to be ‘public authorities’ bound by the HRA but it is arguable that that they are subject to the Act where they fail to respond appropriately to support victims of peer-on-peer sexual abuse.
What should happen in school if the police are investigating?
The DfE guidance for schools is clear that the child who has been accused should be removed from all classes with the victim while a police investigation is ongoing. Furthermore, the guidance states that the victim and the accused should be kept
“a reasonable distance apart on school or college premises (including during any before or after school-based activities) and on transport to and from the school or college.”
There is no definition of “reasonable” in the DfE guidance. However, in reaching their decision about what is “reasonable” a school must take into account their legal duties under the HRA. The DfE guidance (S. 86 of KCSIE) clearly states this:
“Under the HRA, it is unlawful for schools and colleges to act in a way that is incompatible with the Convention. The specific Convention rights applying to schools and colleges are:
• Article 3: the right to freedom from inhuman and degrading treatment (an absolute right);
• Article 8: the right to respect for private and family life (a qualified right) includes a duty to protect individuals’ physical and psychological integrity”
Under Article 3, a school must undertake an investigation into a credible allegation of sexual assault. They must conclude, on the balance of probabilities, what occurred and what an appropriate safeguarding response should be. They will need to conclude whether the student making the allegation is more likely than not to be a victim of sexual assault. When considering safeguarding arrangements and Human Rights, the school should not wait for a police investigation to conclude, before taking precautionary steps to protect a student they think is more likely than not to be the victim of sexual assault. If the school has concluded that it is more likely than not that the assault took place, the school will then need to consider Article 8. Article 8 concerns an individual’s right to physical and psychological integrity. The DfE guidance acknowledges (p. 129) that in the case of rape, assault by penetration or sexual assault, “allowing the perpetrator(s) to remain in the same school or college would seriously harm the education or welfare of the victim.” It would be difficult for a school to argue that a victim’s Article 8 rights are being respected if they are exposed to any risk of contact with the perpetrator in school.
Furthermore, schools do have the legal right to impose a precautionary exclusion on a student who they believe is more likely than not to be the perpetrator of a sexual assault against another pupil.
What should happen in school if the police are not / no longer investigating?
The DfE guidance does not give clear advice to schools about what to do if they are made aware of an allegation of rape or sexual assault, but the police are not, or are no longer, investigating the assault. This situation is common and arises for various reasons, some of which are listed below:
- the victim chooses not to report the attack to the police
- the police close the case because they cannot gather sufficient evidence
- the victim has reported the attack but does not wish the police to investigate further
- the child who has harmed is less than 10 years old or lacks capacity.
If the police are not investigating (or have closed the case without charging the accused), the school needs to understand its own, separate legal obligations under the Human Rights Act (HRA). The duties under the HRA set out above apply whether or not the police are investigating. Under Article 3, the school has its own duties to investigate an allegation of sexual assault. As stated above, the school must undertake an investigation and conclude whether it is more likely than not that the assault took place. The school does not need to reach a conclusion “beyond reasonable doubt;” the school must conclude whether it is more likely than not that the assault took place.
If the school concludes that it is more likely than not that the assault took place, the school must treat the victim as a victim of sexual assault and consider the victim’s Article 8 rights accordingly. As stated above it would be difficult for a school to argue that contact in school with the student who has harmed them would not put a victim’s psychological integrity at risk. So, under Article 8, it would be reasonable to expect the school to take steps to prevent unwanted contact with the perpetrator and any perceived risk of unwanted contact.
If police close an investigation for any reason other than concluding that there has been a false allegation, schools and colleges cannot simply end the separation arrangements which the DfE require them to have put in place during the investigation. The school can only reasonably end separation arrangement if they have concluded that on the balance of probabilities there was no sexual assault or that the victim’s psychological integrity will not be compromised by contact in school with the student who has harmed them.
State schools which cannot justify a decision not to protect a child from further unwanted contact with the alleged perpetrator of a sexual assault in school could be sued under the Human Rights Act. This has been done successfully. Children without significant income or capital should qualify for legal aid to cover costs.
Who to contact?
For victim support contact your local rape crisis support centre.
For legal advice contact Andrew Lord at Leigh Day Solicitors: alord@leighday.co.uk or
use this search function to find a specialist child abuse lawyer in your area
https://childabuselawyers.com/find-a-lawyer/
For other questions write to contact@metooschool.org.uk