Whilst many higher and further education institutions have been focused on the difficulties in juggling face to face teaching with keeping students safe on campus as Covid-19 runs riot, and the logistics of larger student numbers as a result of the A-level exam fiasco, another more insidious issue is working its way through the student body. Sexual harassment and sexual assault claims are on the increase. Whether this is a result of individuals being more prepared to come forward as a result of the #MeToo campaign or whether the number of incidents giving rise to such claims really are increasing is less clear. There is, in addition, a swell of public opinion as to the need for society as a whole to take steps to seek to protect females in all walks of life, and Universities may well see the impact of this given the number of female students.
These incidents and resulting claims can relate to student to student interactions (although these are more likely in a university setting due to the significant number of students living on campus or in student accommodation) or staff to student interactions; this article focuses on the former.
It may be that some people who attended university can remember incidents from their own experiences where over boisterous students may have crossed an invisible line, possibly encouraged by drinking societies, a rugby culture or the willing silence of others who did not want to rock the boat. The reality is that these issues may not have gone away and there is now a further dimension as social media appears to have become a platform for some students to provide commentary on how others look, for sexual innuendo and a general disrespect for, in the main (but not solely), females.
Over the last few years, UMAL has seen an increasing number of such cases, and there have been other examples publicised in the media such as the Warwick University students who targeted several female students as the focus of violent sexual comments in a group chat. This is just one high profile example of an issue that we anticipate many universities and colleges will have had to deal with or may have to deal with in the future, indeed a 2019 BBC survey found that universities received more than 700 allegations of sexual misconduct during the 2018/19 academic year.
It is not the intention of this article to identify why some students behave in this way but more to address best practice for universities and colleges to consider in dealing with such issues and to highlight some of the concerns raised by complainants.
The primary starting point should be that universities and colleges need to adopt and publicise a zero tolerance policy towards all forms of sexual misconduct from harassment to assault, and should ensure that all staff members and students are aware of this policy, that it is widely publicised and that all members of staff are regularly trained as to how to behave, react and report in the face of such issues. Education is key and Freshers’ week may be a key moment to set out expectations and the relevant policies to ensure that all new students are aware of the standards they are expected to adhere to and the impact of not doing so.
Historically many institutions have not had specific sexual misconduct policies and UMAL would strongly encourage any institution that does not have such a policy to give high priority to drafting and implementing one. The ambit of such a policy should be wide – it should cover sexual assault, threats to commit such an act on a specific or generic individual, sexual harassment whether in person or online and should consider how to deal with issues brought to its attention including where there may be no specific victim. It must also recognise that allegations of sexual misconduct can be made by some students as revenge for a relationship breakup or other incident (an easy act of revenge knowing the damage such allegations can do to an individual’s character- the #MeToo campaign brought with it a wave of allegations that often led to trial by media, despite a lack of any genuine evidence).
The damage to a student’s career, reputation and mental health of being wrongly accused cannot be underestimated. As such it is important that the rights of both parties to a sexual misconduct complaint are balanced whilst providing a safe environment for the complainant.
It has been suggested that, since the majority of sexual misconduct complainants are female, the failure to have a policy that deals specifically with these issues, and instead placing reliance on a standard student complaints procedure, could be deemed to be discriminatory under the Equality Act 2010 – the rights of the parties to a complaint may not always be evenly balanced under a student complaint policy, often not giving a right of reply to the complainant. This argument has yet to be tested in Court but should encourage those institutions who do not have a specific sexual misconduct policy to consider implementing one as a priority.
In particular, we consider such policies should focus on the following issues:
- The question of consent – what is consent? This is a difficult question and one which is likely to trouble any organisation which deals with a majority of young people some of whom may sometimes consume alcohol or drugs and where, it is possible, one or both parties may be under the influence of such substances when trying to assess the question of ability to consent.
- The forum of the sexual misconduct – such a policy should deal with acts on university and college premises, at university, college or Student Union related activities but should also include online and virtual platforms – such as WhatsApp, Facebook and Snapchat. It is possible that these platforms may encourage individuals to comment in a way that they might never do in real life but such comments can be equally as distressing and disruptive for any individual targeted. It can be that when using these platforms generic comments about other students may be made where there would be no one specific individual targeted and any policy should be capable of dealing with such a situation.
- The requirement to report to the police – individuals who allege they are the victim of a crime should be encouraged to report that matter to the police and early liaison with the police as to what steps the university or college may carry out towards gathering evidence and sharing that evidence with the police should be agreed. Police investigations can take many months and it will generally not be acceptable for a student to be suspended throughout that period nor for the complainant to be unprotected.
- Provision of support for the complainant – an individual who comes forward to complain of sexual misconduct may fear repercussions and reprisals from the accused or from his or her friends. If required, arrangements need to be made to ensure the safety of the complainant whilst on university or college premises, create non-contact orders that are fair to all parties, and anonymise complaints whilst investigations are being carried out.
- Willing participation of the complainant in the complaint process – consider what should happen if either from the outset or part-way through the process a complainant decides they no longer wish to support the investigation.
- The investigation – it is frequently the investigation process itself that students complain about. There is frequently an acceptance that the initial incident may not have been preventable by the university or college but instead a feeling that the investigation was poorly handled, opportunities missed, evidence lost or that there has been inadequate communication, during which time the complainant may feel vulnerable, exposed and often traumatised. For a complainant to feel that he or she has been fairly treated, steps should be taken to ensure a thorough, discrete investigation is carried out, statements taken, CCTV footage instantly obtained where possible, and screen shots of texts, messages etc requested and obtained. Both parties should be entitled to see each other’s evidence prior to a disciplinary hearing, should be entitled to attend any hearing with a third party and should have a right to respond to each other’s evidence. The right to a fair hearing is clearly a crucial part of the investigative process. Many standard complaints processes do not give the complainant a right of reply and reliance on a standard student complaints procedure may be insufficient when dealing with sexual misconduct complaints.
- Mental health Counselling – this can be a crucial step in protecting the complainant and often the accused who may be young individuals, away from their usual support mechanisms and perhaps acting under the influence of alcohol and peer pressure. Ensuring that mental health counselling is offered to the individuals involved as early as possible, at the institution’s cost, is likely to have a positive effect in reducing the impact of an incident.
- Specific policies to address allegations of sexual misconduct by staff members – this is clearly a slightly different issue and whilst most of the above will also apply, it is important to ensure that where such an allegation is made, the complainant does not experience a disruption of studies and is, wherever possible, transferred to an alternative study group whilst the investigation is in progress.
- Staff training – this should be considered in order to promote acceptable departmental cultural behaviour to ensure all students and staff can feel they are working in a safe and supportive environment.
Sexual misconduct, as with all types of harassment and bullying, is insidious behaviour with potentially devastating effects that should not be tolerated in any organisation. By taking preventative measures through the adoption of specific policies and staff (and student) training in all of these areas, universities and colleges can help to engender a culture that positively demonstrates a zero tolerance to this conduct. Such effective risk management promotes a safer environment for all students and staff within the University. It is clear from the claims we see that universities and colleges have policies and procedures in place to deal with a range of issues. Many of the complaints/claims arising from sexual misconduct have however arisen where specific policies had not been put in place, and the existing policies struggle to respond to what is a very specific and sensitive issue. Even where specific policies are in place, it is vitally important to comply with them whilst adopting a sensitive and carefully measured response by way of investigation. Care should be taken to ensure that each individual involved in the process understands the policy being applied, the reasons for it and is treated with dignity and care. A prompt and early investigation, combined with immediate protective measures to secure the safety of the complainant from the moment of the complaint, is the best way to mitigate if not avoid future claims.
Whilst not intended to be addressed in this article, but very much related to the issues raised here, Universities may want to adopt more physical changes to ensure that students feel safe – all night lighting on campus, CCTV, security patrols. It seems likely that student safety will remain a topical and relevant issue, and steps taken to make students feel safer on Campus can only be a good thing.
This article was written jointly by UMAL and Jo Makin/Kathryn Oldfield of Kennedys