Handling sexual misconduct on campus needs to be about natural justice

Nathalie Podder is Deputy President (Welfare) at Imperial College Union

Diptasri Basu is Research and Policy Officer at Imperial College Union

Like lots of universities, Imperial has seen significant student concern expressed over the way sexual misconduct is prevented and allegations of it handled.

Like many SUs, we’ve been working hard on our policy response to ensure we play a role in keeping students safe and ensuring they are confident they will be treated well when an incident occurs.

And as is the case across multiple campuses, even though we’ve all seen the national surveys, a lack of detailed evidence locally can sometimes be a barrier both to establishing a case for change and knowing if interventions are working as they should.

In that context, our first Sexual Misconduct Survey was an important step. Open between July and August 2021, its findings were sobering:

  • 30.8% and 15.0% of respondents were survivors of sexual harassment and violence respectively;
  • 42.8% of individuals who were survivors of sexual harassment were also survivors of sexual violence;
  • 84.2% and 87.5% of respondents who were survivors of sexual harassment and violence respectively were women;
  • Union bars, halls of residence and off campus venues are the top settings where misconduct takes place;
  • Only 18.7% of survivors sought support from services at Imperial at all and
  • A significant number of respondents and survivors did not know where to seek support – or did not believe any serious action would be taken by the College where a report is made.

We wanted to understand the broader culture around sexual consent and specifically the incidence of misconduct on campus. But the findings also allowed us to identify certain groups who may be more vulnerable, and the settings where it most commonly occurs. It was also an opportunity to evaluate the existing support services for survivors, and the disciplinary processes for those who choose to report misconduct.

Students are not reporting

We’ve heard from colleagues around the country that some universities say there’s not a problem because they’re not getting lots of formal reports.

So a focal point for our research was the apparent discrepancy between the relatively high incidence of sexual misconduct and the low rate of reporting – only 10 complaints of harassment, assault or sexual misconduct were made against Imperial students between 2016/2017 to 2020/2021. This was compounded by the survey findings which showed that:

  • most survivors did not access any support services from Imperial because they did not think any action would be taken
  • many students would not know where to report it and many believe that the process would be not be worth it

In fact, the dominant sentiment among respondents and survivors alike was the lack of faith in institutional action. Survivors wrote about the trauma produced by alleged incidents of dismissal, disbelief and perception of investigations being long-drawn and exhausting for the complainant.

Natural justice

When it comes to scrutinising investigative procedures of any nature, we think it is crucial to look through the lens of human rights and natural justice – after all, institutional disciplinary procedures and panels are meant to be alternative or complimentary to court procedures, insofar as their fact-finding function and therefore effectively fulfil a “quasi-judicial” purpose.

University decisions may be “internal” but they can have a tremendous impact on the wellbeing and career of students and staff – so there are few compelling arguments against embedding natural justice safeguards in all aspects of the process.

For example – refusing to provide the outcome to parties and concealing evidence provided by one party from another are common criticisms of the panels – and these could be seen as violations of natural justice.

When we examined disciplinary policies and procedures at Imperial and contextualised them against the general developments across campuses around misconduct, certain aspects stood out to us:

Non-disclosure of outcome of investigations to the complainant

Imagine this scenario – you have filed a criminal complaint at a magistrate’s court, attended hearings and provided evidence for your case. After months of investment, would you accept that a copy of the judgement is not given to you because of confidentiality? Or worse still, that it is given to the other party but not you? How could we then allow for such injustice to be meted out to complainants of misconduct year after year?

Transparency of outcomes for parties and ensuring investigations have pre-announced timeframes are measures that are not only vital towards encouraging complainants to come forward but also crucial aspects of a fair trial that natural justice demands. We must compel disciplinary proceedings to follow those principles in both letter and spirit.

It has become common for universities to cite the broad ground of “data protection laws” to continue the practise of non-disclosure of outcomes. Such a blanket ground is untenable under relevant data protection guidelines, which simply mandate acting proportionately in making disclosures and providing grounds to make them. Further, EHRC Technical Guidance on Harassment at Work puts positive obligations on universities to disclose outcomes of investigations and so does OfS’ new Statement of Expectations on harassment and sexual misconduct.

At a time when students’ poor mental health has become a key concern across campuses, universities’ refusing to reveal outcomes of investigations and denying students closure on traumatic incidents could further push them towards long-term mental ill-health.

Non-disclosure agreements in misconduct cases

While we have no reasons to believe that Imperial College has been using NDAs in misconduct cases, we find it grossly unethical that some universities regularly use a legal instrument that was created to protect trade secrets to gag survivors of sexual misconduct.

Using NDAs for sexual misconduct dehumanises parties and allows for commodification of bodily integrity and human dignity. Therefore, Imperial and other universities must make a clear commitment to never use NDAs for any matter related to sexual misconduct and we hope that they would soon join the Higher Education Minister’s Universities pledge against NDAs.

Absence of legal professionals from the entire investigative procedure

At ICU we have recommended that every disciplinary panel for sexual misconduct cases must include a legal professional. Imperial’s student disciplinary procedures do not allow a legal professional to accompany either party during the investigation. They do not lay down clear guidelines on procedures for risk assessments for safeguarding vulnerable students or how fairness of procedures is maintained.

Since the writing of our report, a High Court judgement has granted a right to legal representation for parties in student disciplinary proceedings “when that was necessary for fairness”. While this is a positive step generally, we think that there may be a better way to ensure fairness in hearings without creating the skewed power dynamic that may effectively play out through one party’s ability to afford a specialised lawyer and the other unable to afford such benefit.

To avoid that, we recommended that a neutral legal professional on the panel be invested with powers to uphold fairness and justice in disciplinary proceedings.

Towards a safer future

Imperial College is in the process of making consent training mandatory next year and is collaboratively working with ICU to start a comprehensive review of its disciplinary process. ICU has also put in place several safety measures at the Union Bars and introduced a revamped Advice Centre with trained staff focused on providing quality support services.

Recently, there appears to be significant political will around tackling sexual misconduct on campuses and ICU is committed towards working collaboratively with stakeholders to ensure a safe and dignified learning environment for students.

We are firmly committed towards long-term engagement and collaborative efforts with the College on sexual misconduct. As well as making extensive changes in our own union to tackle sexual misconduct and violence, we have also made steps to proactively address the culture in our union bars.

The ICU research programme will complement and support this agenda – and will continue to annually assess the incidence of sexual misconduct, evaluate support services and the general consent culture on campus.

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