Content note for descriptions of serious sexual assault; please take care.
Recently the Guardian reported on an account of a court martial held on a US airbase in Suffolk. An American fighter pilot, off duty and living in Cambridge, was tried under US military law for an assault on a British woman, rather than in the English courts that would normally have heard the case. He was convicted of strangling her and acquitted of the more serious charges. The woman who brought the complaint described the process as “degrading”.
Reflecting on how the case was decided raises fundamental questions about how we all adhere to principles of natural justice (whether in higher education investigations or beyond).
Natural justice is an old idea with two simple rules. The first is that no one should be a judge in their own cause; the decision-maker must be impartial and free of conflict. The second is that everyone affected has the right to a fair hearing, which means they should know the case against them and have a proper chance to respond. Procedural fairness builds on this; people are far more likely to accept an outcome (even one they dislike) when they’ve had a voice, when the decision-maker is neutral, when they’re treated with respect, and when they can trust the motives of those deciding. I teach all of this in my investigator training, and if you hold the court martial up against those principles, there are gaps.
The panel were all officers from the same base as the accused, and all were men. One had himself been acquitted of sexual offences; another led the squadron that maintained the pilot’s aircraft.
It’s difficult to understand how the panel members were thought to be neutral. The reporting party, meanwhile, gave evidence a few feet from the man she was accusing, with none of the anonymity or screening she would have had in an English court, and was questioned in a way she experienced as being put on trial herself. Voice and respect, in any real sense, were missing.
University investigations are not criminal trials and the stakes and the powers are different, but the principles are still important. The investigator should be genuinely independent, with no stake in the outcome and no prior relationship that a reasonable person would question. Both the reporting party and the respondent must be told clearly what is alleged and what is being decided, and both must have a real opportunity to give their account and respond to the other’s. Evidence should be weighed on its merits, not on who performs best under pressure. And the process itself should not cause further harm; being trauma-informed isn’t a softening of procedural rigour; it’s part of how you obtain reliable evidence in the first place.
Fairness protects the respondent too. The right to know the case and to answer it is not a courtesy owed to the reporting party alone. A process that’s fair to one side and not the other isn’t fair at all and is unlikely to withstand scrutiny.
The questions now being asked of the police underline this. The decision to hand the case to the US military was, per the reporting party’s account, taken without consulting her on the basis of an assumption about what she wanted. This is a reminder that voice is not only about the hearing itself, but also about the processes that come before it.
The court martial is an extreme example, shaped by jurisdiction and military culture rather than anything universities are likely to recognise. Even so, it’s a useful (if very distressing) example of what happens when you get the basics wrong.
Procedural fairness and rigor aren’t the most glamorous parts of the process, but getting these things right is the difference between a process people can trust and one that leaves everyone feeling it was simply done to them.