The official body charged with overseeing student complaints about English and Welsh universities has revealed a growth in concerns about university-run sexual misconduct proceedings.
Here, partner Kate Goold – a specialist in this area of law – explains how universities can get things wrong, and explains what students caught up in these proceedings can do.
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Students are increasingly unhappy with the way universities deal with sexual misconduct allegations, the independent body overseeing the sector has revealed.
In its latest annual report, the Office of the Independent Adjudicator in Higher Education (OIA) reported a growth in the number of complaints about how universities handle accusations of sexual misconduct.
“In 2024 we continued to see an upward trend in the number of complaints we received that contained some element of bullying, harassment or sexual misconduct”, the report says.
Most of these complaints came from students accused of sexual misconduct, rather than those making the complaints, the OIA said. It also revealed that it upheld or settled a higher proportion of complaints about sexual matters than it did for most other types of complaint.
As Jo Nuckley, the OIA’s head of outreach and insight, put it in a blog accompanying the report: “We have upheld a high proportion of the complaints we have reviewed about harassment and sexual misconduct.
“We have identified procedural errors and unfairness that have significantly undermined the value of the process for reporting students, and the validity of findings made against reported students.”
Case study: alleged harassment at a student society event
Shortly prior to releasing its annual report, the OIA published on its website short anonymised summaries of ten recent sexual harassment related cases.
The summaries illustrate the range and diversity of sex-related complaints made to the OIA, as well as the limits on the watchdog’s ability to intervene.
One of these cases – reference number CS022509 – concerns a male university student accused of “non-consensual sex, unwanted comments and touching of a sexual nature, and using offensive and inappropriate language”. This behaviour was reported to have taken place “during and after a student society event”.
On being informed of the claims against him, the student – who was studying on a professional regulated course – was immediately suspended from university “as a precautionary measure.” While he was told about the accusations in general terms, “he didn’t receive specific detail or information about the allegations, including who had made them, for eight months”.
The student was told he could not contact any other student involved in the allegations. But because he did not know who made the claims against him, this meant he was effectively banned from contacting anyone at the university.
As the OIA reports: “he wasn’t able to contact anyone at the provider for eight months, which had isolated him from friends and sources of support and made it more difficult to provide witnesses in his defence.”
When it came to deciding the allegations’ veracity, the university went against the OIA’s Good Practice Framework by banning the student from bringing a lawyer to the panel meeting. The result, the OIA, concluded, was a disciplinary procedure that was unfair.
As the OIA writes: “none of the information or evidence we reviewed indicated that the provider had considered the seriousness or complexity of the case when deciding to refuse the student’s request for legal representation at the panel.
“Because we thought the provider had unreasonably refused the student’s request, we were not satisfied that the disciplinary proceedings had been conducted fairly”.
The OIA recommended the university reconsider the allegations at a fresh disciplinary hearing. It said the university should pay the student £1,000 in compensation.
Lack of legal representation
Stories like this are far from uncommon. In fact, this case contains some familiar themes.
Accused and accusing students may be surprised to know they have no automatic right to legal representation in university proceedings. Not only this but some universities actively discourage their students from seeking independent legal advice.
Defenders of this system justify excluding lawyers by claiming they delay and unnecessarily complicate matters.
Perhaps unsurprisingly, I strongly disagree. In my experience, lawyers generally speed up and simplify these proceedings. They do this by helping the panel determine which evidence is necessary to include, and which isn’t.
By guarding against injustice lawyers can bring proceedings to a much swifter conclusion.
I know of cases in which both complainants and accused students have waited years for their case to conclude, only to see justice denied when the case collapses due to procedural error. Early legal involvement can prevent this from occurring and thus benefit all parties to a dispute.
The question of how universities should engage with lawyers was addressed in the important High Court cases of AB v XYZ, in which a student sued his university following its investigation of an allegation of sexual assault.
My colleague Peter Csemiczky has written a detailed analysis of the AB v XYZ case, but in essence, the High Court found the university in question breached the student’s rights when it refused to allow him to be legally represented at an initial disciplinary hearing.
The AB v XYZ rulings do not compel universities to allow legal representation in all sexual misconduct matters, but they make it clear that having legal representation may be necessary to ensure procedural fairness; and that this is more likely in more serious cases such as those addressing allegations of sexual misconduct.
Lack of appropriate expertise
Another common problem with the way in which universities run their investigations is a lack of appropriate expertise.
While some universities employ outside experts (sometimes former police officers) to run their investigations; many do not (and in any case: former police officers are not immune from criticism). They instead make use of existing staff members, who while potentially well-intentioned, may have received little to no training in how to do this important job.
These staff (who may otherwise be primarily engaged in teaching or academic research) may be unfamiliar with basics of gathering and handling evidence as well as with the delicate interview techniques required to question complainants and suspects in sensitive matters.
I have encountered cases in which university staff have fundamentally undermined an investigation’s integrity by failing to secure crucial social media and phone message evidence that lie at the heart of an allegation.
I also know of cases in which universities have conducted witness interviews in which they have given quasi-legal advice (to both accused and accuser) which is just plain wrong.
The core problem in the AB v XYZ cases mentioned above was a repeated misunderstanding, on the university’s part, of how it should properly conduct these proceedings, assess witness evidence and deal with the complaint in a fair way.
We should be clear that no-one benefits from this. Sexual allegations are serious. They generally involve vulnerable young people who need to be treated sensitively.
Life-long impact
OIA case summary CS022509 mentioned above tells how the accused student in question was studying on a “professionally regulated course”. While the summary does not reveal what course this was, professionally regulated degree courses include medicine.
The impact of a sexual accusation against these sorts of students may be greater than they would for students on “standard” degree courses. As the OIA puts it: “the allegations against him were very serious, with potential consequences for not only his studies but his ability to register in the profession and pursue his chosen career.”
This is far from an isolated case. I have advised in a case where an allegation was made five years into a medicine course, and two years after the events in question.
My client did not have the benefit of legal representation prior to my becoming involved. It was in this situation that a finding was made against him. Although I succeeded in persuading the university that their procedures were unfair, by that stage my client had already been expelled and was seeking an alternative career to medicine.
The impact of an accusation on students on non-regulated courses can be severe and life changing.
Very often (indeed, as in the case above), the university will exclude an accused student from campus or otherwise bar them from communicating with certain other students / staff members, as a “precautionary measure” while it carries out its investigation.
This may be appropriate. But these cases can drag on for months or – in extreme cases – years. A student who is banned from talking to his university friends and from attending lectures, is for all intents and purposes, no longer a student. Plus, the restrictions on the accused do not apply to the rumour mill and students can find themselves becoming a pariah on campus while these allegations are investigated.
I know of young men in this situation who, stuck in their childhood home, alone and isolated, while their case grinds on and university life continues without them, have become terribly depressed. Some choose to cut their losses and leave the university in question before the case concludes.
On top of this there is the impact a university probe can have on a potential police investigation.
As my colleague Peter Csemiczky wrote in his blog on the steps an accused student should consider taking, “if a university fears a crime such as rape or sexual assault may have been committed, it may inform the police, who in turn may launch a parallel investigation. Information provided to the university investigation can be passed to the police or relied on in a criminal case.”
Ensure fairness at every stage
The fact that the OIA has seen an increase in the number of complaints about university misconduct proceedings supports the commonly held view that sexual harassment is today more likely to be reported to the university authorities than it was just a few years ago.
It follows that more students will find themselves involved in university-run investigations.
Our primary sympathy in these cases should be with the victims of sexual violence, who are nearly always young female students.
However, if we, as a society, want to see an end to the scourge of sexual violence then we need to guard against introducing new injustices and protect all those involved in these investigations, by securing evidence, ensuring fairness at every stage of the process and focussing on the welfare of all those involved.
