Regulation unlikely to resolve university sexual misconduct case difficulties

Out-Law News | 18 Sep 2019 | 2:41 pm | 2 min. read

The introduction of new regulations or mandating existing guidance is unlikely to address many of the challenges universities face when handling cases concerning serious misconduct, an expert in universities law has said.

Julian Sladdin of Pinsent Masons, the law firm behind Out-Law, said many of the concerns raised about universities' handling of cases arise from police intervention and the fact that the subject matters falling subject to criminal law.

However, where cases of misconduct fall to be handled through university complaints procedures there are things that institutions can be doing better, he said.

Sladdin was commenting after the BBC reported that information it obtained under freedom of information (FOI) laws from 81 universities showed that there had been 110 complaints of sexual assault and 80 allegations of rape made across those institutions last year.

The BBC reported that students it had spoken to felt the complaints procedures at universities had failed and left them traumatised.

According to the report, Universities UK (UUK), the representative body for UK universities, said institutions should follow its voluntary guidelines that were published in 2016. It also reported that Anna Bull from the 1752 group, which researches sexual misconduct in higher education, said university complaints procedures should be subject to better regulation. Nicola Dandridge, chief executive of sector regulator the Office for Students (OfS), reportedly said the OfS will intervene where there are "serious examples of universities failing to address these issues seriously".

Sladdin said: "The findings of the BBC's investigation are an important reminder that despite the progress which the sector has made in tackling serious misconduct allegations since the UUK's 'changing the culture' report in 2016, there is still a lot of work to do. Much of the work needing to be done was acknowledged by UUK in its review last year."

"However, it would be unfair to say that the sector as a whole is failing in its duties or  simply because the UUK guidance on handling serious misconduct case is not mandatory that the majority of universities are not following the guidance or are not seeking to ensure that robust procedures are in place to investigate allegations," he said.

"Our experience is that in the majority of cases staff tasked with implementing those processes are highly alert to their obligations and sufficiently trained so that the integrity of those procedures and the support provided to the various stakeholders involved is maintained. Often where it is perceived that there has been unreasonable delay this is due to police intervention, and other critical factors beyond the university's reasonable control," Sladdin said.

"Universities are in a very difficult position when faced with allegations of serious misconduct against both staff and students. Firstly a university is likely to have duties to support both a reporting student and a party responding to an allegation. It has to manage an inherent internal conflict when instituting its procedures. Furthermore, a university procedure is concerned with misconduct, and not designed to determine matters of criminal law which are reserved for the courts. These complexities are beyond a university's reasonable control," he said.

"One of the key complaints cited is the traumatic impact on a reporting student when they have to give evidence in a disciplinary hearing. While, there may be more that universities dealing with cases of misconduct can do to support a student through this very difficult and emotional process including using screens and video links to avoid students being in the same room it is difficult to see how, given the serious nature of the allegations made, that  a 'quasi judicial' situation, where the student against whom an allegation is made has the opportunity to defend themselves, can be avoided as  this is a simple matter of ensuring a fair hearing," Sladdin said.

"It is, also, unfair to assume that simply by introducing further regulation or making the present guidance mandatory that this will overcome a lot of the difficulties which arise as it is hard to see how these changes will address the need for police intervention, or satisfactorily resolve the limited contractual jurisdiction which universities have to determine serious allegations when compared to the criminal courts," he said.