Fair procedures aren’t as easy to run as OfS thinks

Georgina Calvert-Lee considers how universities might ensure that their disciplinary procedures are demonstrably fair to victims of harassment and sexual misconduct.

Georgina Calvert-Lee is Head of UK Practice and Senior Counsel at McAllister Olivarius

Another set of recommendations, another opportunity missed. The Office for Students (OfS) has published its statement on what universities should do to fight sexual misconduct which might be summed up as: Just Do It.

That’s fine for Nike but given the level of violence against women in higher education, and the history of mishandled complaints, a simple directive to universities to improve isn’t enough. They need practical and meaningful instruction that results in practical and meaningful outcomes.

As someone who’s worked on sexual misconduct in higher education cases for years, I’m pleased that the testimonies of the Everyone’s Invited community have forced the public as well as stakeholders in higher education to reflect on campus violence and discrimination. But why should victims be satisfied with another vague and legally toothless “statement of expectations”?

Credit where credit’s due

The OfS statement confirms that law matters – it endorses the idea that universities owe their students and staff a duty of care defined by law and that universities must operate in line with the Equality Act and the requirement the law establishes for all bodies in the public sector to advance equality.

Also, the statement defines specific goals for universities – adopt and implement fair complaints handling procedures, put diverse people on panels that hear cases of sexual violence, clearly signpost students about how to make complaints, train their staff and consult with students. This is commendable.

But the statement leaves out the crucial part that administrators, campaigners, students and staff have been waiting for – the specific elements that are needed to make a procedure “fair”. Perhaps OfS thought this too obvious to state. But it isn’t.

Over the years, colleagues and I have represented many casualties of the university complaints process. I have yet to see one that was fair to the complainant. Reasonable results in individual cases have depended on individual administrators intervening to override the patently unfair, sometimes ridiculous, impact of the written procedures they were implementing.

Fair’s fair

For universities disappointed by the missing “how to” guide in the statement, I can offer a set of concrete guidelines. In collaboration with the advocacy organisation The 1752 Group, my firm published Sector Guidance to Address Staff Sexual Misconduct in UK Higher Education last year. It explains what a fair process should look like. At its heart is the key principle that the complainant must have rights in the process equal to those of the respondent.

This seems such a statement of the obvious that who can disagree with it? But in reality, this is what happens in the typical case of a woman complaining about sexual assault or harassment by a fellow student at university.

The university runs a disciplinary procedure to decide if rules have been broken, just as it would if the complaint was about plagiarism or theft. The victim of the sexual assault plays no role in the process except to provide the initial complaint, and then perhaps to be subjected to cross-examination.

She, not being a party to the exercise, cannot cross-examine her alleged assailant or instruct her lawyer to do so. She cannot see or probe the evidence he offers to claim exoneration. She cannot attend the hearing. She might not even be told the outcome. She has no right to appeal. She has no power to resist a decision by the university to dispose of the complaint without a hearing. As complainant, she fundamentally has no rights within the university’s process.

So after suffering the humiliation and trauma of being raped, harassed or discriminated against – experiences in which the victim’s own agency has been denied and voice stifled – the university performs a final violation by denying her a voice or presence in the so-called complaints process. It is no wonder that so many students and staff feel as injured by the way the university treated them after making a complaint as by the original misconduct complained of.

If the principle of equal rights in the process were adopted then many of the failings of the current system would fall away. The complainant and the respondent would see the evidence pack, attend the hearing, ask questions, see the outcome, have a right of appeal.

This principle of equality in complaints handling processes must be adopted by the universities’ regulator, Office for Students, and made mandatory. This last step is vital because universities have had the opportunity to adopt this principle for years, but have not. Clearly some compulsion, with sanctions for non-compliance, is needed.

OfS needs to understand this and change its approach. Only a regulator (or the courts) can demand that universities offer a process that is fair to the complainant and the respondent, according them equal rights and protections in the procedure for investigating the complaint. Those who have bravely described their experiences on the Everyone’s Invited platform, deserve at least this – a transparent and fair complaints procedure, consistently provided in every university. Anything else is just more handwringing.

2 responses to “Fair procedures aren’t as easy to run as OfS thinks

  1. The whole process is flawed – the investigation of rape is an amazing complex and challenging thing and yet in reality we are asking (in the main) academics with limited training to do it alongside other stuff – which does everyone a disservice. Before changing the process, I really think Universities need to commit to actual investigators who do this and very little else.

    Being brutally honest – I’ve done cases over the years where at the end of the process – not a single person in the room is sure about the right course of action – most allegations are overwhelmingly likely to be true but in a process that is not the same as evidentially strong. All we have actually done is provide a student with fake hope something will be done.

    The right of appeal stuff I’m not sure how you would implement because by and large there is a principle that you do not re-run the same disciplinary process twice against an individual. If student X is found not to (on balance of probability) to have done Y and you then wanted to rerun the process – anyone with any sense is going to take legal action against the University itself.

  2. There is a good academic study of the deep mess that US Us have got themselves into over the past decade in terms of flawed procedures for dealing with campus sexual misconduct – Gerstmann (2019, Cambridge University Press) ‘Campus Sexual Assault’. It sets out the learning-curve which we must avoid repeating and which has led to hundreds of court cases – and with the trend now for the Us to lose in court because their procedures are just so sloppy. As the author above states, part of the answer is much more fully to involve the complainant – but also Us are going to have to come to terms with the fact that both the reporting student and the responder student must each have legal representation (and very probably in most cases at the U’s expense): there is simply too much at stake in terms of demonstrating a sound process (investigation, hearing, appeal) has been followed for it all to be left to the usual management amateurism prevalent across the HE industry.

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