How to tackle the grey areas of sexual misconduct in higher education

During the first term of my PhD, I began leading sexual consent workshops for undergraduates.

While the structure of these sessions were a huge upgrade from the tea video we’ve all seen at one point or another, I finished the teaching having recognised an undeniable truth: there’s a massive gap in higher education policies, the law, and our culture when it comes to tackling the grey areas of sexual misconduct. This needs addressing as quickly as possible.

That’s not to say that the students from these workshops didn’t engage in some really insightful conversations, or that no work is being done to address gaps in our understanding, but that there remains discordance over what constitutes as sexual coercion.

The law currently defines consent as when an individual “agrees by choice, and has the freedom and capacity to make that choice” free from “coercion” and “manipulation.” And yet, many students still have sexual experiences that do not not constitute as fully consensual using the legal framework for the definition.

Coerced consent

The inescapable hookup culture at UK universities has been shown to have an incredibly detrimental effect on women’s wellbeing, both physically and emotionally. However, this is downplayed. In particular, the issue of sexual partners lying to obtain consent – that would otherwise not be given – is regularly dismissed as a sensitivity issue rather than a predatory pattern of depriving partners the chance to make fully autonomous choices.

In 2020, offer holders at Durham University created a group chat which discussed a competition to sleep with the poorest students on campus. And with one member claiming that he would “sleep with a different bird every night just for a bed,” I wondered how consenting their prospective partners would be if they knew the truth.

University of Oxford Masters student Millie, recently tweeted that men shouldn’t “be able to feign emotional interest in you so they can have sex with you and then dispose of you,” adding that this has concerning “implications for informed consent.” I couldn’t help but think of the female students I know who had felt this way before.

If victims were aware their partners intended to remove condoms or were being dishonest about their ​​romantic intentions, most would likely choose to walk away. By intentionally denying their partners full autonomy, abusers are still committing an act of sexual violation, which can be just as traumatising as rape or sexual assault. But these instances are rarely taken seriously or understood to be violating.

The law does not consider consent by deception to be a crime. In R v Lawrance (Jason) [2020] EWCA Crim 971, the Court of Appeal considered the circumstances in which deception was capable of vitiating ostensible consent in sexual offences. It clarified that:

Deception that can vitiate consent. Ostensible consent can be vitiated by deceptions that are closely connected to the nature or purpose of sexual intercourse. “Closely connected” will be interpreted narrowly. The deception must be related to the physical performance of the sexual act, rather than the broad circumstances surrounding it. A lie about wearing a condom is sufficiently closely connected because it physically changes the nature of penetration. In contrast, a lie about fertility is not, because it is not related to the performance of the sexual act.

So, a lie about your relationship intentions is not considered consent by deception, because it is not related to the performance of the sexual act. However, universities’ behavioural policies are not bound to follow the law and we can, in principle, hold them to a higher ethical standard. While obtaining consent by deception may not be investigated by the police as a legitimate crime, after I asked various sexual violence researchers, the definitive answer was that universities should uphold it as a valid complaint.

Survivor-led solutions

I am not arguing for increased penalisation of students. In particular because it would be incredibly difficult to disprove that a student who had promised emotional or romantic intimacy in order to coerce consent had simply had a change of heart about their sexual partner.

Not only this but nearly all survivors who do report their abuse to universities do so with the same intent: to find a sense of closure. Sadly, the nature of most university complaints procedures mean that the process is not only often ineffective for victims, but can also be re-traumatise them.

I believe that there are accessible alternatives to such penalising and re-traumatising systems, that offer viable solutions and closure for victims of potential acts of morally indeterminate sexual misconduct.

One such approach is restorative justice, one of the many survivor-led approaches to healing. The victim and the perpetrator have a mediated discussion where, ideally, the perpetrator holds themselves accountable by taking responsibility for their actions and making amends. The process is intended to be transformative for both parties. In cases of genuinely unintended harm, this offers a chance for an honest conversation about what happened and the impacts for the survivor.

Accountability processes are another alternative to the current justice, and university disciplinary, system. The process entails taking precautionary measures to protect survivors from their abusers while the procedure is ongoing.

Universities aren’t required to disclose if or what safety measures have been put in place for reporting parties during their disciplinary investigations, which leaves victims in the dark and potentially fearful about encountering their abuser. Accountability processes, however, attempt to ensure safety measures are fully transparent to give survivors peace of mind.

A perfect solution?

Of course, the drawback is that both accountability processes and restorative justice are dependent on perpetrator willingness. This poses an issue if the perpetrator isn’t apologetic or has a pattern of abusive behaviour. On restorative justice, Gabriella Lettini, a professor of theological ethics and a dean at the Graduate Theological Union in Berkeley, said: “I don’t think victims of sexual violence owe the perpetrators anything, and I don’t think they need a confrontation with them to engage with their healing (unless they really want to).”

By no means am I suggesting that restorative justice or accountability processes are infallible, but they do offer a chance for perpetrator accountability in a way that our current higher education policies just don’t. Instead of exacting revenge and looking to punish, they simply ask those who’ve committed harm to be better, and to consider consent in a wider context than those tea videos suggest. And for many survivors, myself included, this is what the only thing we’ve been after all along.