There has been a significant increase in the number of cases of sexual misconduct considered by university disciplinary panels following the publication of UUK guidance in October 2016.
The guidance was intended primarily to address the anachronistic content of the Zellick Report, which was published in 1994 and advocated that serious misconduct likely to amount to a criminal offence should only be investigated by the police and not by universities. The problem with applying that approach was that students were afforded more protection for alleged minor misconduct under universities’ disciplinary procedures than they were for more serious allegations. Further, adopting a blanket policy of not investigating allegations of sexual misconduct could disadvantage female students in particular, and therefore was likely amount to indirect sex discrimination.
In our experience, the preponderance of cases of sexual misconduct considered by universities relate to conduct occurring in the context of existing sexual relationships or friendships that are sporadically sexual in nature. The alleged misconduct often happens behind closed doors involving two students who also frequently have consumed alcohol. Such cases, particularly where both students agree that sexual activity took place and the allegation turns on issues of consent, present a challenge for disciplinary panels, who must decide on guilt on the basis of the evidence presented to them.
A number of themes have emerged from cases like this dealt with by the sector, which make it appropriate to highlight some elements of the principles of fairness and other considerations that need attention.
Support for reporter and accused
Reporting allegations of sexual misconduct can be very distressing and reporting students should be provided with appropriate support not only to help them through the investigatory and disciplinary process, but also to create a culture in which students do not feel unreasonably inhibited and are encouraged to make genuine complaints which will be taken seriously. Properly trained personnel (either staff or outside agencies) offer the best means of realising that objective.
Many students against whom allegations of sexual misconduct have been made have not previously been subject to disciplinary proceedings and find navigating them a daunting task. Investigatory meetings can also be intimidating and even more so if they are conducted as a prosecutorial process.
Often, the only source of help is a students’ union adviser who in effect provides nothing more than emotional support. Given the presumption of innocence, accused students should have access to support in the form of advice and guidance on the application of the disciplinary process and his/her rights and responsibilities in respect of it. It is appropriate to consider investing in training advisers (either staff or student union personnel) to fulfil that need.
Ensuring that both students have access to support by properly-trained personnel will ultimately enhance the quality of the disciplinary process and related decision making, and ensure that all concerned feel that the matter has been dealt with fairly.
Presumption of innocence
While it is entirely reasonable to expect the accused student to cooperate with and participate in the disciplinary process, it is nevertheless the responsibility of the case presenter to prove to the panel that the facts constituting the alleged misconduct occurred on the balance of probability (i.e. at least 51%). Until then, the accused student is presumed to be innocent.
The purpose of an investigation stage of the disciplinary is not to prove the truth of the allegations. Rather, it is to establish the facts and supporting evidence, to assess the strength of the evidence, to assess if there is a case to answer and if so, to refer it to the disciplinary panel for a decision. The investigator is not therefore a prosecutor. Once the decision to refer the case to the disciplinary panel has been made, the investigator then becomes the prosecutor.
The objectivity of the investigation process is a requirement of the presumption of innocence.
Clear conduct regulations
Codes of conduct form part of the consumer contract with students. They should be drafted in clear, intelligible language to enable students to understand with a reasonable degree of certainty the expectations of the university with respect to how they should conduct themselves.
A constituent of fairness is the right of the accused student to know the case against him or her. Initiating disciplinary proceedings on the basis of highly subjective or ill-defined terms obfuscates the case the accused student has to defend.
Further, consumer legislation, which is based on the principle of fair dealing, provides that any ambiguity should be resolved in favour of the student against whom the particular contractual term is being enforced. Cases based on poorly-drafted regulations are therefore much less likely to succeed and serve neither the reporting student not the interests of fairness.
Clearly-drafted charges
The charges on which the hearing proceeds are also an important element in fulfilling the right of the accused student to know the case against him/her. They also inform the disciplinary panel of the case it has to consider and to which it must confine its findings.
The charges should succinctly set out the alleged facts in chronological order and each should be cross-referred to the relevant parts of the conduct regulations, which it is alleged the accused student has breached.
Disciplinary panels make the decision on guilt based on the evidence presented to them at the hearing. They therefore decide whether some or all of the evidence presented to them is relevant to the charges and what probative weight to attribute to it. To conclude that an accused student is guilty, the evidence must sustain a finding that it was more likely than not that the alleged facts are true. Provided that the disciplinary panel’s decision is both rational (i.e. based on evidence) and fair, a court will not interfere with it.
More often than not in our experience, universities do not require the reporting student to provide evidence in person; understandably, the university does not wish to subject the reporting student to any further distress, or that they do not want to attend the hearing. His or her witness statement is usually submitted in lieu of his or her oral testimony and the accused student is not afforded an opportunity to ask questions of the reporting student.
There is no general legal right to question witnesses in internal disciplinary proceedings and hence no absolute prohibition on allowing witness statements instead of personal attendance. The more serious the allegation however, (e.g. those resulting in permanent exclusion), the greater the procedural safeguards that need to be implemented.
The absence of the reporting student however raises important questions and difficult challenges for the disciplinary panel, for example:
- How can the accused student effectively challenge the evidence?
- Is the investigator’s second-hand account of the events being relied on as if it were primary evidence of the facts?
- How are inconsistencies in the accused and the reporting students’ accounts to be resolved in the absence of any other evidence?
The attendance of the reporting student is arguably a necessary procedural safeguard in cases of sexual misconduct, which usually result in permanent expulsion if there is a finding of guilt. That can be secured without additional distress by means of a video link or screen which obscures the reporting student from the sight of the accused student.
In addition, the accused student could be permitted to question the reporting student indirectly via the chair of the disciplinary panel, who has conduct of the proceedings and can prevent aggressive cross-examination.
Sexual misconduct is inimical to any community and should be disciplined in order to effect a change of culture. That change can only really be achieved if both reporter and accuser are treated fairly and equally. A robust disciplinary process is one that maintains that important balance.
Although I’m not too keen on pejorative language like ‘anachronistic’ I will defend our work on the Zellick group just to say that in 1994 we did not believe that most HEIs were equipped to deal with serious criminal allegations. There was a risk to both complainant and alleged perpetrator that a prosecution would fail on procedural grounds. And a risk that decisions of disciplinary panels would end up in a civil court – or at the time, before a highly qualified Visitor. Of course if now HEIs are confident that ‘robust disciplinary processes’ are in place to prevent either of these outcomes then I concede.
The article is interesting and usefully recaps some important points. I’m less clear, though, on whether this is a tacit recommendation for HEIs to tackle more of these cases themselves? Whilst Zellick is indeed some years old, surely the basic principle of allowing the police to deal with potentially criminal matters (in the first instance) remains the appropriate approach?