Who Told Who What?What are Confidant Witnesses and Should Investigators Rely on Them

Complainants in a workplace investigation will often share that they told someone about their experience. In cases where events happened in private, such as sexual harassment or abuse, there are typically no eyewitnesses to an event. The question is, can we use information that was shared by the Complainant after the fact? If the Complainant told their co-worker that they were sexually harassed shortly after it happened, is that information something an investigator can use to support a finding?  The answer is a qualified yes.

Witnesses who have been told about an incident but didn’t see it themselves are referred to as confidant witnesses, and their evidence is referred to as a prior consistent statement. Managing this type of evidence can be difficult. When do you speak to such witnesses? How much weight do you give their information? 

The information can be helpful and if we spoke to someone else and they advised the Complainant told them a different story, that inconsistency would be cited in determining the Complainant may lack credibility. So, if it can negatively affect credibility, should it be able to reinforce an assessment of positive credibility?

The concern here is that a story doesn’t become truer the more often it is consistently told. A party to an investigation can tell a consistently false story to many people. What must be the focus with this type of witness is more about the circumstances surrounding the retelling of the story. The decision to use confidant witness evidence is made on a case-by-case basis and should consider the following:

• Do you really need the evidence?If you have good evidence that is sufficient for a finding, it might be better to avoid the confidant witness information, and the subsequent need to argue why it would be valid.
• Timing is critical. When did the complainant disclose the allegations to someone else? Because a person can consistently tell a false story, it is important to consider the when the story was told in relation to the timing of the complaint. When it is prior to the complaint being made, and the commencement of the investigation, it should hold more weight than one made after, when the party has an obvious motive to lie. Of course, another consideration is whether the person always knew they would complain and set it all up in advance. This, however, is not common and is a consideration in considering such matters on a case-by-case basis.
• Is there any reason the Complainant or Respondent would lie to the confidant witness. We have seen cases, where information comes out about an incident, and we later discover that the fabricated story was told to a spouse to cover up something the complainant or respondent did not want them to know.
• Were multiple people told about this incident and how reasonable is it to tell that number of people?
• Who was told about the incident? A close friend, spouse, random office worker etc.

This type of careful assessment in investigations is tricky and the use of confidant witness, while helpful in some cases, is risky and should be very carefully thought through.

Let’s look at an example:

1. An allegation is made that at a work-related party, a leader in the organization made lewd suggestions to an employee and became “handsy” by touching the co-worker on their buttocks, and proposing they go somewhere and get intimate (writer comment – the language was reasonably considered coarse and vulgar but is avoided here for this article).
2. The complainant becomes distraught, fearful, and cries, as she abruptly leaves the party to go home.
3. While waiting outside for an UBER the Complainant is crying and a co-worker asks what happened, and the Complainant shares that her boss asked her to &%#$ and grabbed her @%&. In the UBER, the Complainant is still crying, and the UBER driver inquires on her wellbeing and asks why she is. The Complainant shares that she was “manhandled like a piece of meat by their boss”.

4. The investigation begins a week later, after the Complainant makes a formal sexual harassment complaint. The Respondent when interviewed, denies all behaviour alleged, says he was drunk at the time, and insisted he was not engaged in that type of behaviour with anyone. He does assert the Complainant is “nuts” and she was “coming on to men all night”.

5. There are no direct witnesses to the alleged incident that led to the complaint, but the investigator does speak to several people at the party, and many indicate the Respondent was making generally lewd and suggestive comments during the evening. The Complainant was described being relatively quiet, sticking to being with a few friends, not drinking any alcohol, and nobody recalled her engaging in any of the behaviour suggested by the Respondent.

This case is one where credibility assessment will play a factor. The Respondent’s credibility is questionable for a variety of reasons most notably that his description of both his and the Complainant’s behaviour during the night was not supported by the witnesses. At this point one might argue there is enough to make a finding, on a balance of probabilities, that the Respondent did sexually harass the Complainant.

Here is where the question comes in on the confidant witnesses. Are they needed in this case, and do they help? One could argue they are not needed as the credibility assessments of the parties allow for a finding to be made. However, what if we had less helpful information? What if there were no witness statements that refute the Respondent’s assertions and all we had was a private incident with no witnesses? In that circumstance, based on the need for the evidence, the timing of the Complainant’s utterances, the apparent lack of motivation to fabricate the story, and the emotional state of the Complainant when sharing the concerns, one could argue the evidence is valid and helpful.

Nothing in investigations is ever “paint by numbers”. These scenarios must be navigated carefully. Of course, the detail and skills brought to the interviews of the confidant witnesses also plays a huge role in how their information might be used in the investigation.