Investigate or not? How HEIs should approach allegations of student sexual assault

Posted: 05/02/2018

Research indicates that a third of female students have endured sexual abuse at university. Universities UK (UUK) has issued helpful new guidance on dealing with serious incidents, replacing the Zellick Guidelines. However, there remain difficult issues for higher education institutions (HEIs) to address when dealing with allegations of sexual assault by students or staff, especially where the police have been involved. Most HEIs promulgate zero tolerance to sexual assault but the question remains: how to provide students proper support in circumstances where the criminal process may take priority over any internal investigation and disciplinary process. Should the HEI do nothing? When may it investigate, and take disciplinary action?

Risk assessment

When deciding whether or not to discipline in the light of an allegation, the HEI should undertake a risk assessment, balancing the rights and needs of affected students. It should consider whether to take any disciplinary action or to report the matter to the police. The following will be relevant:

The Equality Act 2010 Failure to discipline might breach the Equality Act. Under the Act, sexual abuse (which includes assault) will also be sexual harassment. The HEI may need to consider vicarious liability, even if the incident took place off campus or in the alleged perpetrator’s private capacity. It should also consider the public sector equality duty and requirement to eliminate harassment.
Human Rights Act 1998 This applies to public HEIs. It’s possible that article 6 (right to a fair hearing) might be cited, although this may be of limited application as there is no absolute right to education with any particular institution, and most disciplinary proceedings will not determine the student’s overall future. There is an exception – if the student is taking a medical course, or another course leading to a professional qualification, it is safer to assume that the right to a ‘fair trial’ applies.
Employment law If allegations involve staff members, HEIs should follow the ACAS Code when implementing their internal procedures, as well as the provisions of their own governing instruments with regard to academic staff.
Contract and consumer law Students’ terms and conditions are governed by consumer law: so any disciplinary action taken must be consistent with the student’s contractual and consumer rights. If an HEI is relying on its student disciplinary procedure, this must have been set out clearly, indicating which parts of the process are contractual.
The Protection from Harassment Act 1997 This criminalises harassment (which includes, but can be wider than, sexual harassment). HEIs may be vicariously liable for actions of their staff (and in some cases their students).

Practical issues

Training To have a statutory defence to claims under the Equality Act, the HEI must take such steps as are ‘reasonably practicable’ to prevent the discriminatory act. Training is key to this. Increasingly training involves challenging assumptions and stereotypes, and conscious and unconscious bias, in those who may receive reports about incidents.
Have a clear process There should be a clear escalation process for sexual assault complaints, so that those who will deal with the complaint are properly trained, and au fait with the issues. Consider having a centralised specialist team to deal with these matters.
Being aware of the criminal law process The guidance recommends that internal disciplinary processes should be stayed where criminal investigations are ongoing. This is not always straightforward for HEIs, as the criminal investigation may take longer than the course itself, and practical arrangements for teaching, and so on, need to be put in place. If the HEI takes no action, both victim and alleged perpetrator may end up dissatisfied. The HEI should consider when it is appropriate not to follow the guidelines and when to carry out some sort of process. It should provide sufficient support to those involved in the alleged incidents and may also need to consider reporting an incident, even without the victim’s agreement, or others might be at risk.
A different (non-contractual) procedure for criminal allegations? Following a usual disciplinary procedure may be inappropriate in criminal cases eg if there is a pressing need to suspend a student, or in terms of how evidence is presented (such as questioning potentially vulnerable witnesses). We recommend that HEIs have a separate policy or annex in respect of sexual harassment and other serious potentially criminal conduct setting out differences in processes, where applicable. It is however a bad idea to import definitions from criminal law into domestic disciplinary procedures as it is not the role of the HEI to determine whether criminal offences have taken place, but simply to consider whether the disciplinary rules have been breached. The HEI is not a criminal court and the criminal standard of proof does not apply.
Rules and sanctions An HEI’s policy on serious offences should include what happens with conduct off-premises, and what happens with conduct online. It should consider what conduct it is looking to prohibit (using lay terms, not criminal definitions), when it may impose sanctions, and indicate how serious it believes an illustrative set of circumstances may or may not be. It is vitally important to have flexibility built into policies in order to impose sanctions on each case’s own facts and merits.

Top tips

A separate member of staff should coordinate the procedures, distinct from the persons providing support to the victim and potentially the alleged perpetrator.
Have a system to manage conflicts of interest which can easily arise in these circumstances.
Make sure students know the procedures for raising a complaint against both staff and fellow students.
Train staff to recognise and handle a potential complaint.
Decide in advance (and provide in the policy) when the HEI will report a matter to the police (including without consent).
Provide a procedure to deal with anonymous complaints.
Set out how information about the complaint will be processed.
If individuals are permitted to question witnesses, set out limits on the types of questions to be asked, how they can be asked and whether they should be done face to face, or through the disciplinary panel chair.
Policies should address when students can be excluded from campus, and if so what will happen in respect of suspension of any studies. The key driver should be the prevention of harm, and the decision should be made at a high level taking into account the impact on both parties. If the student’s studies are to be suspended, it is also important to consider what will happen in respect of their fees.
Everything must be well documented; recordkeeping needs to be appropriate to demonstrate compliance with the policy and law, to deal with any disclosure issues which may arise later and to deal with data subject access requests.
You should consider your policy on vexatious complaints, eg whether to take disciplinary action or to follow a more laid back approach, such as by referring the complainant to counselling.
Remember that the policy on serious offences may also include other potentially criminal activity, such as (non-sexual) assault, and drug offences.