Firstly, this is a concern outside of my scope as I am not a lawyer, and I highly recommend contacting legal counsel out of respect for your workplace and those involved.

I’ll frame my advice from a workplace investigation best-practice perspective (not legal advice).

Core Principles to Anchor the Investigation

Even when evidence is limited or conflicting, your investigation must demonstrate:
-Procedural fairness to both parties
-Trauma-informed practice (without assuming misconduct occurred)
-Evidence-based reasoning (not credibility by stereotype or hindsight)
-Clear separation of workplace jurisdiction vs. personal conduct

Your role is not to determine criminal guilt, but whether there is sufficient evidence, on a balance of probabilities, that workplace policy was breached.

Evidence Challenges You’re Facing (and How to Frame Them)
A. Delayed Reporting (9 months later)
Delayed disclosure does not invalidate a claim, particularly for sexual assault. However, it does:
-Limit corroborating evidence
-Increase reliance on testimony and circumstantial indicators
-Require careful documentation of why evidence is unavailable

Best practice:
Document the reason for delay as reported by the claimant without drawing conclusions.

B. Conflicting Accounts & No Direct Evidence
When two parties give different versions and no witnesses or physical evidence exist, you cannot default to belief or disbelief.

You must assess:
-Internal consistency of statements
-Plausibility relative to known facts
-Contemporaneous behaviour and communications
-Motive to fabricate or motive to minimize

Importantly:
“No corroboration” ≠ “false allegation”, but it also ≠ substantiation.

C. Post-Incident Behaviour (Sleeping Over, Socializing, Insisting on Working Together)
This is one of the most difficult areas and must be handled carefully. Continued contact does not automatically negate an assault claim

Trauma responses can include:
-Normalization
-Seeking closeness
-Avoidance of conflict
-Self-blame

However, you are permitted to consider post-incident conduct as part of the overall context, especially when it:
-Continues over a long period
-Involves repeated voluntary contact
-Includes requests to increase proximity

Best practice:
Do not label this behaviour as “inconsistent with assault.”
Instead, frame it as contextual evidence that does not independently corroborate the allegation.

D. Alleged Forced Kissing at a Party (No Witnesses, Off-Duty)
Key considerations:
-Was this a work-related event (organized, sponsored, or reasonably connected)?
-Did it involve employees interacting in a work context?

If yes, you may assess it under workplace policy, even if off-site.

If no, you may still document it as context, but note jurisdictional limits.

Again, absence of witnesses means:
-You rely on consistency, plausibility, and surrounding evidence
-You cannot substantiate without sufficient proof

E. Mental Health Factors (Recent Hospitalization)
You must not:
-Discredit the claimant solely due to mental health
-Speculate about diagnosis or capacity

You may:
-Note timing relative to disclosure
-Consider whether memory, perception, or stress may affect recall only if supported by evidence or expert input

Best practice wording:
“Mental health information was considered only insofar as it related to the investigative process and not as a factor in determining credibility.”

Credibility Assessment – How to Do This Safely
Avoid statements like:
-“The claimant is not credible”
-“The accused is more believable”

Instead, assess reliability of evidence, not character.

Examples of appropriate findings:

“The available evidence does not allow the investigator to determine, on a balance of probabilities, that the alleged conduct occurred as described.”

“The accounts differ materially, and there is insufficient corroborating evidence to prefer one version over the other.”

Possible Investigation Outcomes (All Legitimate)

Given what you’ve described, substantiation is not the only valid outcome.

You may conclude:
-Unsubstantiated
-Not enough evidence to confirm or deny the allegation
-Inconclusive
-Evidence is evenly weighted or unreliable
-Policy concerns identified without misconduct finding
-Boundary issues, poor judgment, or risk factors exist even if assault is unproven

Important:
“Unsubstantiated” ≠ “false”
It simply means the burden of proof was not met.

Risk Management Regardless of Outcome
Even without substantiation, employers still have obligations:
-Restore a safe workplace
-Prevent retaliation
-Address ongoing interactions

Possible steps:
-Separation of reporting lines or duties
-Clear behavioural expectations for both parties
-Training on boundaries and conduct
-Monitoring without discipline

Documentation Is Critical
Your final report should clearly show:
-What evidence was considered
-What evidence was unavailable and why
-How trauma-informed principles were applied
-Why conclusions were reached without speculation

This protects:
-The organization
-The investigator
-Both parties

-HRInsider Staff