CONSENT MATTERS – Setting the standard for respect and boundaries whilst at university (and steps to take if things go wrong)

The Regulatory team at Kingsley Napley LLP are frequently instructed by university students involved in disciplinary proceedings relating to sexual misconduct. 

 Although sexual misconduct cases often contain an element of police involvement, the police/CPS will apply criminal tests and thresholds as clearly defined within statute and case law. Students should be aware that even when there is not sufficient evidence for criminal charges to progress, or where a complaint is not made to the police; universities are able to undertake their own investigations, bring matters before a hearing panel and take disciplinary action where required. The threshold for these proceedings is much lower, being the civil standard of proof - “on the balance of probabilities”.

Criminal test on consent

Allegations of sexual misconduct are extremely serious and often involve very finely balanced arguments relating to consent. Section 74 of the Sexual Offences Act 2003 contains the legal definition of consent, which states: “a person consents if he agrees by choice, and has the freedom and capacity to make that choice”.

Consent can be withdrawn at any time during sexual activity and each time activity occurs. For a case to succeed, the prosecution must prove that the suspect did not have a reasonable belief that the complainant was consenting.

CPS guidance on consent sets out the key issues that will be considered. This includes, recognising or ignoring any signs from the complainant that they did not want sexual activity to take place and checking if consent was given for all the acts and not just some, e.g. consent for sexual intercourse but not oral sex. The scenario below is an example of where the suspect is unlikely to be able to prove they had reasonable belief.

Emily and Anton are at a party. Both of them are under the influence of alcohol, but both are capable of having clear discussions. A number of their friends are present and see them walk, without any assistance, to a bedroom together to be alone. In the bedroom, Anton kisses Emily, and she reciprocates. He then touches her breast above her clothes, and she again reciprocates. Anton stands up and takes his clothes off, Emily does not follow his lead. He has to remove her clothes, she does not say anything. They engage in sexual intercourse, throughout which time Emily is still, does not actively participate and is silently crying.

You can read more about what consent is and why intoxication will not be a defence in Sandra Paul’s blog.

Definition of sexual misconduct and harassment 

The Office for Students (OfS) has recently imposed a new condition (“E6”) of registration on higher education providers, which requires them to publish and maintain policies and procedures that set out how they will deal with incidents of harassment and sexual misconduct. Providers must inform students about their policies in a way that can clearly be understood. This is likely to include mandatory training delivered to all students which should address the topic of sexual consent. 

To provide clarity and consistency across all universities, the OfS has standardised definitions of harassment and sexual misconduct as follows:

• “Harassment” has the meaning given in section 26 of the Equality Act 2010 and section 1 of the Protection from Harassment Act 1997.
• “Sexual misconduct” means any unwanted or attempted unwanted conduct of a sexual nature and includes, but is not limited to sexual harassment, sexual assault, and rape.

It should be noted that this definition includes the most serious behaviour, but is not intended to be an exhaustive list. Conduct may still amount to sexual misconduct where it is unwanted or attempted unwanted conduct of a sexual nature.

What to do if I am involved in disciplinary matters at university?

Notification of an allegation of sexual misconduct can be extremely stressful and difficult for students; and proper care needs to be taken to ensure the process is fair and protects the interests of all parties involved, not just the complainant. The OfS expects providers to ensure appropriate support is available for all parties, including witnesses. This may include delivering their own support services, commissioning support from other organisations, making changes to academic and/or assessment arrangements, or making appropriate and effective referrals to other service providers such Sexual Assault Referral Centres and/or counselling.

In terms of the disciplinary process, each university will have details of their own policies and procedures, and it is therefore vital that a student facing an investigation has clarity on how it will be approached, and the likely steps that will be taken.

Further, students should make early efforts to immediately preserve any evidence including from social media, WhatsApp, text messages, Snapchat, TikTok, emails, photographs, videos and/or CCTV.

further information

If you have any questions regarding this blog, please contact Shannett Thompson, Zenia Birring or a member of our Regulatory team.

about the authors

Shan is a Partner in the Regulatory Team and is the firm’s Training Principal. She trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors.

Zenia is a trainee solicitor at Kingsley Napley and is currently in her third seat with the Criminal team. Zenia completed her first two seats in the Divorce and Family team and Regulatory team.