Addressing sexual misconduct in HE: the importance of working in partnership

Amy Tschobotko and Deborah Jeremiah from law firm Bevan Brittan discuss the importance of improving how universities tackle sexual harassment, particularly the potential for developing better preventative and trauma-informed strategies

There has been an increased focus over recent years on dealing with student sexual misconduct in higher education institutions (HEIs).

Where these sorts of allegations are made, questions can be raised as to the efficacy of internal disciplinary and harassment procedures for students. This is set within the context of a societal shift around how violence against women and girls, in particular, is identified and dealt.

HEI disciplinary and harassment procedures are a well-established accountability process designed to reactively manage allegations through an internal complaints process. In some ways, these processes are necessarily narrow and limited in the sense that their operation is based on contractual and public law rights, whereas the powers and responsibilities of external organisations such as the police have a statutory footing.

Where allegations of sexual misconduct are made, HEIs have to grapple with a complex landscape. HEI procedures result in outcomes that are highly impactful for both the alleged victim and the alleged perpetrator and the process can become contentious, raising the risk of public law challenge and even human rights arguments.

However, HEIs’ powers over the alleged perpetrator are relatively limited. This article looks at how internal HEI processes fit with other accountability frameworks (which sit with other bodies) for sexual misconduct, including those designed to deal with criminal culpability and safeguard adults. Further, with a rise in such cases, we look at how HEIs can move to a preventative rather than reactive model in managing sexual misconduct.

Addressing sexual misconduct in HE: the importance of working in partnership
Tschobotko and Jeremiah say universities can use partnerships with charities and student unions to develop processes and support services complementary to existing police measures to investigate and prosecute sexual offences and harassment.

Partnership working can help in providing an ethical approach which is trauma-informed, survivor-centred, and social justice-based.

Working in partnership on the ground could involve: formal and informal collaborative initiatives with local partners; memorandums of understanding with the police; and working with appropriate third sector organisations such as Rape Crisis or Sexual Assault Referral Centres (SARCs) and national services who have expertise working with victims and perpetrators.

Internal partnerships are also key to providing proactive support to the student body through Student Unions that can offer peer support, training and heightened awareness of what is expected in terms of behaviours and reporting channels.

Partnership working is also essential when it comes to dealing with any safeguarding issues which may require HEIs to work with the police, and other public bodies such as health and local authorities who tend to lead adult safeguarding under current safeguarding legislation, namely the Care Act 2014.

A partnership-based approach can help address systemic elements that may inadvertently tolerate, minimise or otherwise perpetuate sexual misconduct. An example of this could be a restricted single route reporting mechanism making it harder for victims to come forward.

Opening up multiple routes for reporting sexual misconduct is a practical but effective way to encourage a positive reporting culture, providing then that the institutional approach is robust and fair.

The reporting culture should be open to listening to micro aggressions and escalating patterns of behaviours, all of which can be a useful component in the prevention and early detection of concerning behaviours particularly those that may appear as predatory. However, the challenge is major.

The reporting culture should be open to listening to micro aggressions and escalating any patterns of behaviours, all of which can be a useful component in the prevention and early detection of concerning behaviours

The Office for Students (OfS) issued its statement of expectations in 2021 which outlines the practical steps that universities and colleges should take in tackling harassment and sexual misconduct. The statement also covers misconduct connected to a range of protected characteristics – including race, religion, disability and sexual orientation and includes online abuse.

The OfS statement is intended to be a framework. HEIs will of course need to consider how to implement the statement on the ground, which will involve consideration of the design of internal processes and the interface between the HEI and external partners.

It may for example be helpful to look at whether to include provision for the HEI to work with external partners at the outset of a complaint so sound decisions are made, and any investigations are carried out via the fairest and most appropriate process.

A challenge for HEIs is that the national understanding around some sorts of behaviour is developing, for example in relation to coercive control (where there is a personal connection between victim and perpetrator) and that a range of behaviours can fall under the criminal offence, such as gaslighting, isolation, exploitation, intimidation and threats as well as physical and psychological harm.

There are also for example updated national strategies such as the Crown Prosecution Service’s Violence Against Women and Girls Strategy (VAWG) and the new principles embedded into the Domestic Abuse Act 2021. That such behaviours can be formally risk assessed by using well-established risk tools should be a part of the HEI’s armoury when managing incidents.

The accountability framework and responsibility for justice that sit with partner agencies such as the police and the local authority for adult safeguarding cannot be met by an internal disciplinary process. Involving other partner agencies is arguably victim-led to a large degree (e.g. a victim can choose not to report to the police). Every victim should be supported to carefully consider cooperation with external partners and understand that the HEI also has obligations to other students where risk is apparent.

Where serious allegations have been made, the internal disciplinary process must continue to align with possible wider accountability at the outset so as not to become a barrier to a forensic investigation; justice; and fair adjudication with legal representation.

In the context of partnership working, and given the possibility of police involvement, the skills of any first responder to a complaint raising sexual misconduct are key.

Given the possibility of police involvement, the skills of any first responder to a complaint raising sexual misconduct are key

A trauma-informed approach can support victims accessing services and law enforcement agencies to seek legal redress and justice. This involves understanding that those who have experienced sexual misconduct may not behave as perhaps one would expect. One of the important aims of a trauma-informed approach is to prevent re-traumatising the individual.

Internal disciplinary processes can raise complex issues around public law obligations owed to the parties as well as third parties, such as witnesses, and potential Human Rights arguments (including in relation to Article 6 and the right to legal representation). This is particularly the case when serious allegations are made and investigative skills vary.

When looking at how HEIs can prevent sexual misconduct, the issue of accountability and consequences must be made explicit to all students at the outset of the student experience and reiterated appropriately. It may be helpful to remind students that accountability may reach outside the confines of the HEI and may lead to a criminal investigation. HEIs may want to consider training and discussions around key concepts such as consent.

In addition, opening up multiple doors for reporting sexual misconduct can be a practical but effective way to encourage a positive reporting culture. This can be a useful component in the prevention and early detection of concerning behaviours.

Amy Tschobotko and Deborah Jeremiah are respectively a partner and senior associate at Bevan Brittan.

Leave a Reply

Send an Invite...

Would you like to share this event with your friends and colleagues?