A matter of consent: sexual assaults on campus

Four male students from the Royal Agricultural University, Cirencester, were recently found not guilty of the gang rape of a female student at RAU’s annual ball, following a criminal investigation lasting nearly two years.

This was not the first criminal process involving students accused of sexual offences that has collapsed; the universities of Oxford and Durham have both had students accused of rape, in 2014 and 2016 respectively (in Oxford’s case, no charges were ever pressed). These incidents are symptomatic of a near doubling in sexual complaints by students between 2012 and 2014, according to research undertaken by the National Union of Students for its That’s What She Said report and Lad Culture and Sexism survey. Concern about the issue has never been higher.

How universities should respond to allegations of sexual assault is being considered by a task force established by Universities UK. The current protocol is based on the work of a previous task force led by Graham Zellick, then principal of Queen Mary University of London, in 1994. His key recommendation was that universities should take no action, besides potentially suspending the alleged offender, until the outcome of criminal proceedings. Further, if no criminal investigation was undertaken, no action should be taken at all by the university.

As a society, we know that the majority of sexual crimes go unreported to the police owing to fear of having to give evidence at trial. The NUS’ 2010 Hidden Marks report found that more than four in 10 victims of serious sexual assault failed to tell anyone at all about it. On this basis alone, the Zellick principles must be updated so that when complaints are made to universities, support can be given and an internal investigation carried out, regardless of the reputational risk.

One of the new task force’s recommendations should be for universities to have accessible, robust mechanisms for reporting sexual assault in a confidential manner. The entire process must be detailed so that everyone understands what will happen at every juncture. Being taken by surprise is likely to further compound victims’ trauma and contravene the principle of natural justice by which alleged perpetrators have a right to expect universities to abide.

Universities should not, however, carry out investigations concurrently with the police. As with any legal matter, criminal proceedings should take precedence over civil, so if a criminal investigation is under way, the appropriate course of action for the university would be to suspend the alleged perpetrator until it is complete. This would prevent any further offending or fear of it among students and staff while also avoiding any threat of reprisal through the civil courts from the alleged perpetrator should he be found not guilty. Universities have an absolute discretion over academic matters, so can require a student to suspend their studies before returning at a later date, if appropriate.

It is particularly important that universities actually follow their own procedures. Too often they act irregularly when investigating allegations of sexual assault, obliging complainants to go to an appeal panel in order to have their original complaint reinvestigated, with the correct procedures followed. This only extends the misery for both the complainant and the alleged perpetrator, so if universities do amend their regulations in light of the UUK panel’s recommendations, the amendments must be realistic and achievable.

The question of how to support sexual assault victims was omitted entirely from the Zellick report. UK universities already have counselling services in place which, one would hope, have the capacity and knowledge to assist victims of crime. But the task force could recommend making it mandatory to offer counselling. Alongside the standard protocol of allowing the complainant to change halls of residence and/or tutorial groups, this would go some way to avoid the risk of complainants becoming overwhelmed and lost within the internal process.

One problem to date has been that universities have failed to record the number of incidents of sexual assault reported to them, so that the extent of the problem cannot accurately be identified. The task force should therefore recommend that recording be properly undertaken. As for the potential cost, is this not exactly the type of task that Microsoft Excel was designed for? No one is asking for anything groundbreaking: just some data retention.

Perhaps one of the biggest challenges is to instil a commitment among senior managers to combating sexual offences on campus. The recent documentary film The Hunting Ground highlighted the switch in the priorities of US college leaders, from silencing the victims of sexual violence in order to protect their institutions’ reputations to actively dealing with the perpetrators. If the same change occurred in the UK, it would probably improve the reputation of universities, which would be seen to be improving student welfare rather than ignoring the issue.

Since the task force will not release its report until the autumn, it is unlikely that its recommendations will be incorporated into practice by the beginning of the new academic year. But it is imperative that change is under way as soon as possible – otherwise headlines such as those concerning the RAU will become ever more frequent.

Matthew Wyard is an education lawyer.