Why isn’t good practice on harassment and sexual misconduct a basic standard?

Amid the publication of an independent evaluation into its adoption, the Office for Students (OfS) has announced that it will carry out a long-awaited consultation on making compliance with their Statement of Expectations a condition of registration.

While this move is welcome, it is worth reflecting on the impact and challenges of anti-harassment work to date.

In 2010, NUS published its Hidden Marks report. This outlined women students’ experiences of harassment, stalking, violence, and sexual assault on campus. In 2015, Universities UK published the first Changing the Culture report which set out recommendations for Universities to tackle harassment and sexual misconduct. Meanwhile, the Higher Education Funding Council for England (HEFCE) released catalyst funding for institutions to carry out projects to tackle harassment on their campuses.

These were positive steps for a sector starting to understand the prevalence and impact of sexual misconduct. But there was a sense of collective naivety across the sector about the tsunami that was about to be unleashed.

#metoo

Many colleagues, like myself, set about raising awareness of the issue of sexual harassment on campus. This was the summer of 2017. In November that year, #metoo became a global movement. Overnight, the voices of victim/survivors were amplified around the globe.

This movement helped to focus attention on the work taking place in the UK at the time, and work included raising awareness of sexual misconduct, piloting training to prevent harassment and providing better support to students who had experienced sexual violence.

The conversations that had been taking place in SUs and student support centres were suddenly elevated to senior leadership teams.

That work has been important and continues to impact the sector. However, as this work progresses, there is a risk that the sector begins to fill the yawning chasm that is the criminal justice system’s capacity to respond to sexual violence.

In 2015, a review was undertaken of the guidelines that universities were using for student disciplinary processes. The guidance up until then constrained universities from taking disciplinary action against a student if their actions may also have constituted a criminal offence. New guidance told universities that they should take disciplinary action in these cases, and so universities were to investigate, deliberate, and conclude complex cases including serious sexual misconduct.

Balance of probabilities

Universities are not courts of law – we cannot send students to prison, give them a criminal record, or put them on the sex offender’s register. We cannot find someone guilty of rape or sexual assault as these are criminal offences. But we can decide that someone has committed those same acts, under the terms of sexual misconduct or sex without consent.

There would be an outcry if universities were to preside over cases of murder or manslaughter. However, cases of serious sexual misconduct are now within the remit of university decision makers.

There are many barriers that prevent students from reporting cases of sexual violence to the police. There is work taking place to improve rape prosecution rates, and the experiences of victims/survivors in the investigative process.

However, students are aware that they may face delays in the criminal justice system. Cases where complainants have been treated outrageously in the courts sit heavy in our collective memories. Reports highlighting misogyny and sexual misconduct in the police force make it difficult for students to believe that they will be interviewed by one of the many compassionate and dedicated police officers doing this work.

Due to these complex and interlinking issues, it is no wonder students often choose university discipline processes over the criminal justice system.

Many institutions are taking a trauma-informed approach to their investigations. All students involved in these processes are offered free representation and wellbeing support throughout the process. They can give evidence and feel supported and cared for. Cases should be completed within 2 months, and the decision is based on the lower, civil standard of proof – the “balance of probabilities” rather than the criminal bar of “beyond reasonable doubt”.

Having the power to remove perpetrators from campus is a huge step forward for equity, particularly for female students. Done well, this process can be healing and safe, done badly, this process can cause more harm than the original assault.

However, we must carefully consider the impact of developing a quasi-judicial system in UK universities. The evolution of this work into regulation therefore raises some challenges that need to be addressed.

Considerations and consequences

It will be important to ensure that universities and the regulator place appropriate emphasis on all forms of harassment, rather than just on sexual misconduct. Nationally, we need to consider what support could be in place to offer guidance and training to institutions to deliver trauma-informed, considered, and balanced student-discipline processes. And we will want to be sure that this replicates across to concerns raised by students about the behaviour of a member of staff.

We will need to consider whether there should be a consistent approach to sanctioning across institutions. It doesn’t seem tenable that you could have your wrist slapped at one institution and be expelled from another for the same incident of misconduct – especially if two or more universities franchise some of their provision to a single college.

We should think carefully about universities holding vast amounts of data about cases of sexual misconduct. This is data that isn’t shared, and is very difficult to share with the police. Is that wise?

And if students continue to lean towards university disciplinary processes, we will want to consider the implications if UK crime maps start to see “blind spots” around university towns and campuses. If sexual violence and hate crimes fail to become recorded crimes in these places, there are potentially downstream impacts that this could have for local and national policy, and public spending.

There is already excellent practice happening – but in OfS’ own words, progress has been inconsistent and too slow. Joined-up sharing of good practice, guidance and support is needed to continue the progression that has been seen over the last decade. Students shouldn’t have to wait any longer for good practice to become sector standard.