As of 1 April 2026, the Protection from Sex-based Harassment in Public Act 2023 came into force in England and Wales, making “intentional harassment, alarm or distress on account of sex” a criminal offence punishable by a fine or up to two years’ imprisonment.
As other commentators have pointed out, this provision applies in certain circumstances within workplaces – and it also has implications for higher education institutions’ work to address harassment and sexual misconduct.
The scope of the new offence refers to “public” acts. The definition in the accompanying guidance, though, states that this can include private places, with the exception of dwellings.
The “in public” aspect covers behaviour in all public locations and can be committed in a private place except no offence is committed where the perpetrator is inside a dwelling and the person who is harassed, alarmed or distressed is also inside a dwelling (whether that is the same dwelling or a different one). Examples of public places are streets, open spaces, public transport (including taxis and private hire vehicles), and public buildings (including buildings open to the public such as cinemas and shops).
While this definition isn’t particularly clear, the phrase “can be committed in a private place” suggests that some university contexts such as workspaces will fall under the new Act – and higher education institutions need to be aware of the implications.
As Nicola Campbell has pointed out in Wonkhe, higher education institutions shouldn’t be using criminal definitions in their internal policies, as they don’t have the power to make findings of criminal acts – only of breaches of their own policies. The new Act should therefore have no bearing on HEIs’ policies or definitions in this area.
Even so, there are various ways in which this new criminal offence might interact with existing institutional provisions for addressing harassment and sexual misconduct, and affect victim-survivors. An imagined scenario helps to outline some of these possibilities.
Gains and losses
Take a scenario where a staff member or student has reported experiences of sexual harassment or misogynistic behaviour on campus from another member of the university community, but whatever action has been taken is ineffective and the behaviour continues. Casting about for anything that might get the harassment to stop, they try reporting “sex-based harassment” to the police.
We don’t know how prepared the police will be to handle this. If they do open an investigation, ideally they’d contact the university first to alert it – and where a good relationship already exists between police and a university, this might be more likely. But there’s a real risk that police contact the perpetrator directly without notifying the institution, which could put the reporting party at significantly increased risk of victimisation.
If the police do contact the institution, there could be knock-on effects for the safety of the person targeted. Pre-E6 research suggested that HEIs have lacked the expertise or processes to assess risk appropriately, and have been reluctant to suspend a responding party as a precautionary measure during a complaint. Recent reporting suggests that universities sometimes don’t even suspend staff while under investigation for rape or sexual assault. That said, if police do inform an HEI about an investigation involving members of their community, there may be provision in policies or protocols to suspend the perpetrator from work or study more readily during that investigation – which could improve safety for reporting parties. More broadly, a police investigation may provide a level of external scrutiny and accountability that forces the university to act.
But even if the police investigate and the HEI suspends the responding party, the overwhelmingly most likely outcome is that police take no further action – consistent with evidence relating to other forms of gender-based violence. It could take months to reach that outcome, during which the HEI is likely to have suspended its own investigation.
Subsequently, the HEI should start or recommence its own investigation. But sometimes – despite the fact that it should know better – the institution appears to treat the police’s “no further action” decision as permission to conclude there’s no case to answer. This is wrong: the university is investigating breaches of its policies, not criminal matters, and should be assessing them on the balance of probabilities rather than the criminal standard of beyond reasonable doubt. Either way, the delay damages the institution’s ability to investigate and act.
In short, there are potential gains for victim-survivors – HEIs may be more likely to take precautionary measures such as suspending the responding party – but also real losses, since a police report may simply drag a case out for much, much longer.
Confused definitions
Beyond this, there are further points of concern. One is the reporting party’s increased risk of victimisation from the responding party and their allies as a result of going to the police. Acts of victimisation – such as spreading rumours, which appears to be a common form of victimisation in staff-student cases – are unlikely to fall under the definition of public sex-based harassment unless they are explicitly sexual or gender-based. We already know that HEIs struggle to deal with victimisation and keep reporting parties safe during investigations, so anything that exacerbates that risk is a serious concern.
The second issue is how the new Act defines sex-based harassment. It introduces confusion because its definition differs from sexual harassment under the Equality Act: it conflates harassment on the basis of sex with sexual harassment, and adds further distinctions that muddy the waters. The Act defines sex-based harassment in relation to the intention of the perpetrator, which is at odds with the Equality Act definition, which refers to the “purpose or effect” of the conduct, making the perpetrator’s intentions irrelevant if the conduct had the effect of creating a hostile, intimidating, or degrading environment.
How poorly understood the Equality Act definition of sexual harassment already is – as research on university complaints-handling shows – is alarming enough. Adding a competing definition, even one that shouldn’t appear in university policies, risks compounding that confusion.
Data, drift, and safety
On the plus side, the new Act has potentially helpful data transparency implications. A criminal conviction for sex-based harassment can be reported publicly, including the perpetrator’s name, which matters for tackling the problem of “pass the perpetrator” – where universities are still failing to take basic safer recruitment steps to avoid hiring known perpetrators, as outlined in the campaign for universities to join the Misconduct Disclosure Scheme. Even this information may not reach university hiring committees, though, given that criminal records checks aren’t routinely carried out when appointing academic staff.
More concerning is a broader question: whether this Act will entrench the “criminal justice drift” that Sharon Cowan and Vanessa Munro have identified in HEIs’ approaches – a tendency in which “universities are too often turning (back) towards adversarial and procedural paradigms, developed within the criminal justice system” rather than towards “more tailored, transformative, and trauma-informed processes.”
This concern is well-founded, primarily because research shows that criminal sanctions are not what reporting parties want or need, particularly when it comes to staff-student sexual harassment. Students targeted for sexual harassment from staff were generally not interested in punitive sanctions for the perpetrator; they simply wanted to make sure the behaviour stopped and wouldn’t be repeated with others.
These findings suggest that many students and staff subjected to sex-based harassment will be very reluctant to report it to the police, because the – very unlikely – event of a conviction would leave them feeling personally responsible for the consequences. Instead, as Nicole Bedera emphasises in her US-based study, safety for those targeted and for the wider university community needs to be central at every stage.
A shift towards a safety mindset is also a move away from a criminal justice approach. But risk management remains a complex and challenging area for HEIs, and even well-resourced universities are being called into question – as in a recent case reported by the Times in which a university allowed a staff member to continue teaching while under investigation for sexually assaulting a student.
Overall, the new Act may have some positive impacts – making sex-based harassment more visible in publicly available data, and potentially bringing more external scrutiny to bear on HEIs. But it introduces an unhelpful competing definition of sexual and sex-based harassment, and risks entrenching criminal justice drift in how universities handle gender-based violence.
While it may have helpful implications for public sex-based harassment in other contexts – as it was intended to – it’s far from clear that it will provide safety or justice for victim-survivors in higher education.
I’d like to thank Nina Burrowes for instigating this discussion on LinkedIn, and Jenny Gradwell for informative insights in the online conversation.
