Investigating Sexual Misconduct in Universities requires balance and fairness

16 June 2021

New guidelines from the Office for Students are a step in the right direction for how serious allegations should be handled.

The film Promising Young Woman was recently released to critical acclaim, having  triumphed at both the Oscars and the BAFTAs. It tackles head on the issue of sexual assault and harassment at universities, and its success comes at the same time as a broader societal conversation is taking place about how we should respond to this problem. Our Universities and Students Team advise on the practical impact of the issues under debate  utilising our considerable expertise to assist students involved in investigations concerning Sexual Misconduct and harassment.

Introducing stronger guidelines
Allegations of sexual misconduct can be life-changing for all the parties involved, this is why it is so important that universities and colleges conduct investigations carefully, fairly and sensitively.

Unfortunately every institution sets its own rules, often with inconsistent implementation, and there are few benchmarks or common standards to use as a guide to best practice. It can be very difficult for both parties to determine the best course of action, especially the accused. This can lead to the accused student being left confused and scared at a time when they need clear and sensitive support.

Over the years there have been several attempts to address this problem, most recently by the independent regulator, the Office for Students. In April it published a Statement of Expectations which outlined the practical steps that administrators can take to prevent and respond to incidents of misconduct and harassment.

While not legally enforceable, these guidelines are expected to be followed, with the threat of sanctions for non-compliance.

At its core, the Statement of Expectations reaffirms the belief that every student is owed a duty of care as defined by the law. It requires that:

  • every institution should have the right processes in place to allow students to report and disclose any incidents;
  • investigatory procedures are fair and independent; and
  • all those involved receive pastoral support and that behavioural expectations for all students, staff and visitors are made clear.

Fair investigations are crucial, but not always achieved
This is, of course, the very least a student should expect. But it is often difficult to balance the sometimes competing needs of the complainant and accused student.

For a variety of reasons , allegations may not always be fairly or effectively investigated by universities or colleges. As a result the outcomes can leave everyone involved feeling angry, upset and frustrated, and can have serious long-term consequences for lives and livelihoods.

Universities often find investigations complex to manage because they must always consider their duties and obligations to both parties. This can lead to difficult conflicts and create tensions in a campus environment where the two parties are likely to see each other again and may share the same social circle.

One of the most common challenges, for example, is in preventing the incident from being discussed on social media. The law protects the privacy of both the complainant and the accused, and any comments made online, in respect of either party, are likely to be defamatory. It is for this reason, among others, why it is so important that the investigation is conducted carefully and sensitively by the institution from the very earliest stage.

The university or college must also continue to provide both parties with an education while the investigation is ongoing – otherwise it may be in breach of its contractual obligations. Despite this, there have been a number of instances where the accused has been suspended as soon as the allegation has been made, without consideration as to whether this is necessary. This can be avoided by making every possible reasonable adjustment to the study and living arrangements of both students. This could involve switching their tutorial and lecture classes to ensure they do not meet each other on campus or offering online access to classes. It is imperative that universities and colleges consider and implement reasonable adjustments, where possible, so that students can continue to receive an education during the investigation

Seek the right advice - from the very start
Once a disciplinary decision is made it can be very difficult to get it overturned by appeal. The university or college is unlikely to want to undermine its position by changing a ruling - thisis why it is so important to take legal advice right at the beginning of the investigation process.  

Of course, we know this isn’t an easy decision. For the accused especially, the fear is that seeking legal advice might wrongly imply guilt. However, an investigation of this nature can be a long, complex and stressful process and therefore the instruction of specialist solicitors is almost certain to foster a fairer result, rather than the student dealing with the matter independently.

This is where we can help. We are able to draw on an unrivalled breadth and depth of legal expertise from our regulatoryemploymentcriminal and public law teams, all of whom have significant experience in advising and supporting clients through every aspect of a misconduct investigation. We ensure that the procedures followed by the university or college are fair and result in a robust decision where all participants feel heard. 

We regularly work with institutions to ensure that their investigations, particularly including those where there is a risk of police involvement, are managed appropriately from the very start. Among our priorities is to work with the faculty to ensure that the students can continue with their education, and that they do not suffer any educational disadvantage as a result.

We will also take steps to protect reputations before, during and after the investigation, because we know that a successful outcome to the investigation does not always prevent confidential information including rumours being shared in person or online and that the harm that follows can be lifelong.

Allegations of this nature are distressing and difficult for everyone involved. We provide discreet, proactive and seamless representation to meet all of your needs when faced with an investigation. We have a demonstrable track record of navigating student to the best possible result.

Further information

If you have any questions or require advice concerning issues relating to students or universities, please contact Shannett ThompsonSandra Paul  or another member of our team in confidence.

 

about the authors

Sandra Paul is a Partner in our Criminal Litigation team. She has a wealth of experience in criminal and related litigation. The majority of her work concerns defending allegations of sexual misconduct. She works with clients in the UK and abroad, including allegations following the #MeToo campaign.

She has a particular passion and aptitude for working with children and young adults, navigating them safely through the youth justice system. Youth crime is a specialist area in which Sandra is a leader in her field.

Drawing on her advocacy experience, Sandra is particularly accomplished in preparing witnesses to give an account or evidence in settings ranging from court proceedings through to internal and external investigations or inquiries.  Sandra’s career has included discreet representation of high profile individuals including politicians, bankers, music, sports and media personalities.

 

Shannett Thompson is a Partner in the Regulatory Team having 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. Shannett has vast experience advising  regulated individuals,  businesses such as clinics and care homes and students in respect of disciplinary investigations.

 

She is a member of the private prosecutions team providing advice to individuals, business and charities in respect of prosecutions were traditional agencies are unwilling or unable to act. In addition Shannett has built up a significant niche in advising investors and businesses in the cannabis sector.

 

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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