Posted on July 9, 2019 at 12:27 PM
Hannah Maslen, University of Oxford, @hannahmaslen_ox
Colin Paine, Thames Valley Police, @Colin_Paine
Police investigators are sometimes faced with a dilemma when deciding whether to pursue investigation of a non-recent case of child sexual abuse. Whilst it might seem obvious at first that the police should always investigate any credible report of an offence – especially a serious offence such as sexual abuse – there are some cases where there are moral reasons that weigh against investigation.
Imagine a case in which a third party agency, such as social services, reports an instance of child sexual exploitation to the police. The alleged offence is reported as having occurred 15 years ago. The victim has never approached the police and seems to be doing OK in her adult life. Although she had serious mental health problems and engaged in self-harm in the past, her mental health now appears to have improved. She does, however, remain vulnerable to setbacks. Initial intelligence gives investigators reason to believe that the suspect has not continued to offend, although there are limits to what can be known without further investigation. Should this alleged offence be investigated?
The police will almost always pursue investigation when a victim reports a serious crime him or herself. But, cases like that sketched above, in which the victim has not approached the police, and in which the victim is vulnerable and may not want an investigation, challenge the assumption that all alleged cases of non-recent child sexual abuse should be investigated. In the case sketched, a few factors are immediately salient amongst the reasons that may be relevant to deciding whether to investigate: the lack of approach by the victim (do they even want an investigation?), the vulnerability of the victim (are they at risk of psychological harm if the police approach them?), the lack of evidence of continued offending by the suspect and the opportunity cost of the investigation (how many other investigations cannot be undertaken as a consequence of pursuing this one?). How should these be weighed into a decision whether or not to investigate? Does it make a difference that the offence is not recent? Do reasons ever stack up to justify not investigating an allegation of non-recent child sexual abuse?
In a new open access paper, published in Criminal Justice Ethics, Detective Chief Superintendent Colin Paine and I identify the reasons that weigh in favour of investigation and those that weigh against. We argue that there is always a presumption to investigate, which is grounded by reasons generated by the value of dispensing criminal justice and the general deterrent effects of investigation and prosecution. Since these are consistently served by investigation, they will apply in all cases. However, this presumption is tempered to some extent if it is unlikely that there will be sufficient evidence to prosecute or secure conviction.
The starting point, therefore, is that all suspected offences should be investigated. We then argue that there are various further reasons that either strengthen or weaken the overall justification to pursue investigation. The threat that the offender poses will vary considerably from cases to case. If evidence suggests that an offender presents a high risk of reoffending, then investigation should proceed regardless of any other considerations: preventing further sexual abuses generates a decisive moral reason to investigate. If, however, evidence indicates that the suspected offender is not likely to re-offend, or if the suspect is prevented from offending due to imprisonment or death, then the reason generated by the threat that the offender poses is much weaker.
Reasons generated by potential harm to the victim will weigh against investigation. Particularly if the victim is very vulnerable, investigators simply making initial contact with the victim can cause considerable harm. It is not uncommon to hear victims in these circumstances say things to the police like ‘everything was fine until you lot showed up’. There have been cases of suicide and of the breakdown of relationships precipitated by unwanted investigation into non-recent child sexual abuse cases. Such harm, where sufficiently likely, generates a strong moral reason not to investigate.
Other reasons that will bear on a decision whether or not to investigate relate to resourcing considerations and societal considerations. Investigating non-recent child sexual exploitation cases is unavoidably resource intensive. Analysis within Thames Valley, UK suggests that the average complex CSE case has seven victims, eighty-eight witnesses, twenty-one suspects and ultimately ten defendants. On average a complex CSE investigation takes nine investigators two years to complete and will cost £885,140 to resource from start to finish. These cases arise with a remarkable degree of regularity, arising on average every six months in Thames Valley alone. Where resources are limited there will be inevitable opportunity costs. Although it is not simply a matter of taking money and investigators from one investigation and moving them somewhere else, the reality is that trade offs have to be made when deciding how to allocate limited funds. If an investigation is hugely resource intensive and there are other pressing policing activities that would be affected, a weak reason against investigating is generated.
Societal considerations are multifaceted and can weigh weakly for or against investigation. Although it is not the case that justification stands or falls on the basis of public opinion, the legitimacy of the police is affected by public support and the fulfillment of obligations. If the police in a given community had made a statement that indicated that they would pay greater attention to offences of this type, then this would generate a weak reason to investigate, on top of those generated by deterrence, justice and public protection. If, however, police had a reputation within a community as prone to trawling for offences without securing convictions, considerations around trust might generate a weak reason not to investigate, especially if there are clear impediments to solving the case.
These various reasons, stacking up and weighing against each other, might seem impossible to adjudicate. How can any decision be made when there’s so much going on and when each case looks different with respect to these various reasons? Although there will not be a definitive answer, we can make some progress by carefully assessing the relative weights of the reasons (which will partly be dependent on facts of the case) and showing how they might be considered alongside each other, to see where the weight of reasons falls. In an attempt to do this, D/C/Supt Colin Paine and I developed a decision-making framework to assist investigating officers with these decisions (see the appendix). This framework is currently being piloted by Thames Valley Police.
It is important to reiterate that although a framework necessarily has to structure and assign weights to considerations, this is not an exact science. Other reasons may also be relevant in individual cases. But in so far as reasons vary in strength they will, in combination, point towards one course of action rather than another. Our ‘Oxford Framework’ assists by making an initial indication as to whether the reasons to investigate are stronger than the reasons not to investigate in a particular case. It is possible that frameworks such as this could apply, not just in cases of non-recent CSA, but across a range of morally challenging policing decisions.