The OfS’ proposals on student sexual misconduct are not fit for purpose

Last year, England’s Office for Students consulted on a proposal to impose substantive obligations on English higher education institutions to protect students from harassment and sexual misconduct.

The consultation was launched against a backdrop of increasing concern that students are not adequately protected from serious sexual misconduct, as well as sexual and racial harassment. In a 2022 survey conducted by UniSAFE across 15 countries, 31 per cent of respondents reported experiencing sexual harassment, for instance. A 2022 House of Commons research briefing cited research indicating that 61 per cent of non-binary university students had experienced sexual violence. And the Equality and Human Rights Commission’s 2019 inquiry into racial harassment highlighted that 24 per cent of ethnic minority students have experienced racial harassment on campus.

These are shocking statistics, and the OfS is concerned that self-regulation by universities and colleges has failed to properly address the problem. But Universities UK has for the most part not welcomed its plans for stronger regulation, arguing that “a continuation or evolution of the current collaborative, self-regulatory approach would be far more appropriate”.

Prior to 2016, universities’ position was that misconduct that amounted to a criminal offence, and certainly a serious criminal offence, could only be dealt with by the police – and only if the victim so chose. It was established practice that rape and sexual assault should never be investigated via internal disciplinary procedures and should only be reported to the police without the complainant’s consent in exceptional circumstances.

However, UUK’s 2016 guidance document, “How to Handle Alleged Student Misconduct Which May Also Constitute a Criminal Offence” (supplemented in March with a set of case studies) takes a slightly different approach. It makes clear that if the allegation is not subject to criminal investigation and there aren’t exceptional circumstances to justify a referral to the police without the complainant’s consent, the university should take disciplinary action itself provided that, as the supplemented guidance underlines, the misbehaviour in question is framed not as a criminal offence but as a breach of contract between the student and the university regarding behavioural standards.

One problem is that those whose actions amount to a serious criminal offence are potentially avoiding the criminal justice system if they are only sanctioned by the university. On the other hand, findings of serious sexual misconduct, domestic violence, and sexual harassment are very serious and are likely to follow the student for the rest of their academic career and beyond. And, all too frequently, university disciplinary procedures are completely ill-equipped to carry out a fair fact-finding exercise.

Courts’ fairly minimal grappling so far with these issues has not made life any easier for the universities. In a recent case against the Royal Welsh College of Music and Drama, the Central London County Court found that the conservatoire’s policies and guidelines committed it to safeguarding and investigatory actions which assumed a duty of care. That duty was said to be “to take…reasonable protective, supportive, investigatory and, when appropriate, disciplinary action steps and in associated communications, including by honouring confidentiality assurances”.

Yet in a 2020 case, the anonymised AB v The University of XYZ, it was made clear that in serious cases, natural justice may require the accused to be permitted legal representation at a hearing, as well as the opportunity to cross-examine a complainant. Indeed, this is now reflected in the guidance published by the Office of the Independent Adjudicator.

Universities are currently struggling to come to just and proportionate outcomes, without formality, while balancing these two competing duties: to satisfy their duty of care to complainants by undertaking appropriate disciplinary action and ensuring that the disciplinary process allows the accused student to fairly challenge the accusation. The ability to challenge the complainants’ evidence in cross-examination is very important in cases where the evidence tends to consist of little more than the accounts of the complainant and the accused student. But, in practice, this ability is often so severely curtailed as to render the exercise almost pointless. The typically poor standard of investigations only further undermines the accused student’s ability to properly defend themselves.

The OfS’ proposals seem highly unlikely to improve the situation since universities will still retain huge flexibility in how to go about managing allegations of sexual misconduct and harassment. Perhaps we need, instead, a specific tribunal to investigate and hear the most serious allegations. Funded by the universities but independent of individual institutions, it would not be vulnerable to reputational pressures and, resourced with appropriately trained individuals, it would be more competent to safeguard both complainants and the accused students.

It is notable that, once qualified and registered with the General Medical Council, a medical student alleged to have sexually assaulted or harassed another student during their time at university has all the protections of an extensive and robust court process before a GMC fitness to practise committee. If, however, the allegation is made while they are still a student, the procedural safeguards are minimal. This discrepancy cannot be satisfactory.

Guy Micklewright is a barrister specialising in professional discipline, education, and regulatory law at 5 St Andrew’s Hill.