Universities cannot police sexual misconduct by themselves

The higher education press has recently been full of concerns about the mounting threats to academic integrity in the digital era. But technology also poses major challenges to the fair resolution of sexual misconduct and harassment allegations.

It is difficult to think of a sexual allegation involving two parties who are known to each other that doesn’t involve communications evidence from one or more of a growing plethora of messaging services. Understanding how and whether to disclose this evidence raises basic questions of fairness and privacy that has left even the criminal justice system stumped. It is unrealistic to think that individual universities are equipped to navigate such complex issues other than at the expense of unlucky student guinea pigs.

It is in this context that the Office for Students (OfS) has reached the conclusion that self-regulation by individual universities is ineffective. The regulator recently ran a consultation on a new condition of registration that would instil a currently absent level of consistency across the English sector on addressing sexual misconduct and harassment.

If implemented, the condition would require universities to introduce mandatory training for students and staff; set out how they will tackle sexual misconduct and harassment; and ban both new non-disclosure agreements in such cases and the enforcement of existing ones (the last of those being superseded by the recently passed Higher Education (Freedom of Speech) Act).

But the sector resists the idea of regulatory oversight in sexual misconduct cases. Universities UK, for instance, argues that a “continuation or evolution of the current collaborative, self-regulatory approach would be far more appropriate than opting to expand the OfS’ already wide remit” given the wide variety of learning and living environments across the country.

Reputational considerations aside, the vast majority of providers undoubtedly have good intentions and want to provide safe environments for students to thrive. However, they may have bitten off more than they can chew. And botched or even just substandard investigations can be devastating for alleged perpetrators and victims alike.

Ten years ago, universities would refer students making criminal complaints to the police. Now, most will investigate almost any misconduct, including rape, even if the incident took place off university property. At the same time, however, universities are quick to emphasise that students should not expect the same rights and procedural rigour from institutional misconduct proceedings as they would receive if facing criminal prosecution.

The logic is that universities and their students are closer to private contractual entities, whereas a defendant in criminal proceedings faces potential imprisonment at the hands of the state.

A criminal court must therefore be sure of guilt (that is, be satisfied beyond reasonable doubt) before it can condemn a defendant, but universities apply a lower burden of proof, the balance of probability. However, given the stakes, this still demands a level of investigatory expertise that universities have traditionally not possessed.

Some universities have recruited dedicated investigators, but while this brings valuable expertise and a semblance of independence, the cost could be prohibitive for some institutions. A standardised approach across the country, by contrast, would enable universities to pool investigatory resources.

The OfS’ proposals, on which it intends to report back later this year, do not fully address the existing imbalances between students and providers. For example, many universities refuse accused students the right to representation in misconduct proceedings, even though the outcomes could severely restrict accused their career prospects or prejudice them in parallel criminal proceedings. This is despite the fact that the good practice framework for disciplinary procedures launched in 2018 by the Office of the Independent Adjudicator (OIA) recommends permitting legal representation in complex cases or those where the consequences for the student are potentially severe.

Universities cherry-picking from the OIA’s recommendations, most of which are based on long-standing legal principles, is a red flag, suggesting that some of the protections may be seen as inconvenient. Significantly, the OIA’s framework advises that potential criminal offences are usually best dealt with by the police and justice system in the first instance.

While the OfS has come under repeated fire since it was established in 2018 for its allegedly onerous and excessively bureaucratic approach to regulation, surely sexual misconduct is an area in which greater oversight is justified. Experience from the criminal justice system suggests that an inconsistent approach to these issues leads to a lack of confidence on the part of all participants.

Allowing individual universities to continue the “evolution” of their self-regulatory approach, as UUK suggests, involves significant risk to the students exposed to the process along the way. This is not a justifiable indulgence when the consequences of failure are so grave. Equally, if universities are going to assume the role of the criminal justice system for millions of people across the country, they must do so in the knowledge that students are more likely to have experienced sexual assault in the past year than any other occupational group – and are just as deserving of access to justice as the rest of us.

But much better to share the burden. The independence of English universities is one of the reasons they are so well respected internationally, but some responsibilities are just too great to shoulder alone.

David Hardstaff is a partner and serious crime specialist at BCL Solicitors LLP.