As more and more allegations of sexual misconduct are made by and against UK university students, Peter Csemiczky sets out what anyone in this situation should know.
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Many people look back on their university days as the best time of their lives: a period when they felt free to express themselves while protected from the pressures of the real world.
A growing number of university students, however, face the prospect of being the victim – or the subject of allegations – of serious sexual misconduct.
There has recently been a significant increase in allegations of sexual misconduct made by and against UK university students. At the same time, it has become commonplace for universities to mount their own investigations into these allegations, and to convene tribunals to determine the claims’ veracity and decide on appropriate punishment.
It is in everyone’s best interests that these investigations proceed fairly and efficiently. But this does not always happen. As well as taking a heavy toll on the students involved, university misconduct investigations can often offend the principles of natural justice.
This blog explains the basics of how these investigations generally operate and sets out five basic issues anyone facing the prospect of a sexual misconduct investigation should have at the front of their mind.
1. Know how university misconduct investigations work
It is an unfortunate fact there exists no standard procedure by which every UK university must deal with an allegation of sexual misconduct. My colleagues and I have been calling for a standardised code for some time but, as things stand, every university has its own system and procedure.
This means the first step anyone caught up in an investigation must take is to establish precisely what procedure, time frame and potential punishments they face.
Despite the variance across institutions, there are some common characteristics to most university investigations. These are:
- Most universities will swiftly investigate any allegation said to have taken place either on university grounds or otherwise under the university’s jurisdiction. This means a university may investigate misconduct alleged to have taken place in a private location such as pub or club if there is sufficient connection to the university (the fact that one or more of the people involved being students at the university is normally enough).
- Students can be suspended from attending university, or otherwise restricted in what they can do at university, while an investigation takes place. They may be banned from visiting specified parts of a university campus and/or from interacting with certain named people.
- The investigation may be conducted by a member of university staff or an outside expert. They will gather evidence likely to include testimony from the individuals concerned; third party witness testimony; and perhaps other evidence such as CCTV; telephone, text or other communications by those involved; and social media posts.
- This evidence will be presented to a decision-making panel, normally made up of other university staff, which decides whether the alleged act took place and, if so, determines a sanction. Unlike in the criminal courts, where a defendant must be proved guilty ‘beyond reasonable doubt’, the threshold for determining what happened during university disciplinary will be the lower ‘on balance of probabilities’ test.
- Any investigation into an allegation of sexual misconduct should operate with complete operational and decision-making independence both from the university and from any of the individuals involved.
- There is not always a right to independent legal representation.
2. Take it seriously
It is vitally important that any accused student takes the university procedure seriously. This should remain case no matter how out of character or minor an allegation may at first appear to be.
One good reason for this is that that a university hearing can be consequential beyond its ability to expel anyone found culpable.
Universities will often suspend an accused student (or ask them to study alone and off campus) while an investigation takes place. This can itself be devastating, especially if – as can sometimes be the case – investigations last for months if not years.
More serious than this, however, is the impact a university probe can have on a police investigation. 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.
As a criminal defence solicitor, I often become involved in student misconduct matters once the police investigation has already started. I have known matters in which students, anxious to swiftly clear up what they perceive as minor misunderstanding, have provided an account of an event to a university investigation without being aware of all the implications of doing so.
This initial, casually provided, account is subsequently handed to the police, where it is subjected to forensic analysis, and may form a crucial part of prosecution evidence.
3. Beware amateurism and bias
While some universities employ outside experts and agencies to run sensitive investigations, many do not. They instead make use of existing staff members, who while potentially well-intentioned, may have received little or no training in how to do this important job.
These staff are unlikely to be familiar with the delicate interview techniques required to question complainants and suspects in sensitive matters. Sexual misconduct issues are, in their nature, highly personal. It takes special skill to interview a complainant (or a suspect) in way that is robust but does not risk re-traumatisation.
These staff may also lack the confidence and skills to pursue evidence which might challenge what they perceive to be the university’s (which is their employer) desired outcome. University misconduct investigations are meant to be independent, but it can be the case that they are not.
The dangers of amateurism are not limited to individual staff. The High Court rulings in the two cases of AB v XYZ of 2020 and 2023 make instructive reading in this regard.
The AB v XYZ cases concern an anonymised individual who twice challenged his university in court following its investigation of, and finding against, him in relation to an allegation of sexual assault.
The High Court ruled that the anonymous university in question had twice breached AB’s rights with the core problem being 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.
The university repeatedly misdirected itself in complex areas of law and procedure which required careful, and dare I say legally qualified, consideration.
4. Stand up for your rights
In September 2023, The Observer newspaper reported a claim, made on behalf of universities, that their misconduct panels are ‘not like a court of law.’
Prof. Sir Steve West, former president of Universities UK, was quoted saying: ‘As expulsion is a penalty, parents of the accused often start to raise the stakes by hiring a lawyer. It is a power game, because usually the victim has no representation, and I think it is completely unacceptable and unfair.’
In my view, this comment reveals a worrying misunderstanding of what the university’s proper role in these matters is.
While it is true that a student misconduct panel is not a court of law; it is also true to say it is not so very different from one. These panels are quasi-judicial. Their proceedings are codified and complex; and their decisions can have serious consequences.
In the AB v XYZ cases referred to above, the university repeatedly refused to allow the student in question to be legally represented at its hearings.
The High Court said this was wrong. It ruled that whilst there is no automatic right to legal representation at a university disciplinary hearing, it is generally the case that more serious the charge, the more likely the need for the accused to be represented. It is hard to think of an allegation of sexual misconduct which would not be considered serious.
The High Court also found that when the evidence of an accused individual is fundamentally contradicted by the complainant (as is often the case in allegations of sexual misconduct), the accused must be permitted to test witness evidence by questioning.
In my experience, universities frequently fail to fully understand their legal obligations in respect of misconduct investigations. Universities may claim the contrary, but it is often essential for an accused student to seek professional legal advice.
5. Prioritise the potential police investigation
While not every type of sexual misconduct constitutes a potential crime such as rape or sexual assault, there is large overlap.
It is generally a good idea for anyone accused of sexual misconduct to conduct themselves as if the matter in question could be investigated by the police. This means an accused person must ensure that they:
- Maintain an appropriate distance from their accuser. No accused person (nor anyone in their circle of family and friends) should attempt to make any contact with a complainant or influence their accuser. To do so would be misconduct.
- Stay away from social media. This means they should close their social media channels and switch off, as far as is possible, their mobile phones. They should advise their friends to do likewise. Online posts and messages that are designed to be helpful or supportive may not have the positive impact that was intended.
- Gather and retain any evidence they may need to rely on in future. This may mean taking pro-active steps to preserve digital or social media evidence.
- Read their university’s relevant codes and procedures. These are often complicated and may require careful consideration.
- Think carefully before providing an account of what happened to the university. Acting in haste will almost never be the right thing to do. Stop, think and seek advice if needed.
A cultural shift
Public attitudes to sexual misconduct have changed. Behaviour that was once tolerated is no longer. Institutions including our universities and schools have had to rapidly adapt to this new reality. Some have done so more successfully than others.
Universities are now expected to conduct what can amount to highly complex quasi-criminal investigations and to determine the truth of what could amount to serious criminal misconduct. In some cases, the procedures universities employ to do this are similar to those used to determine whether a student cheated in an end of year exam.
The fact that our universities are taking claims of sexual misconduct seriously is a good thing. But sometimes due process, the rights of individuals, and fairness are ignored in the rush to admirable ends.
Any young person involved in university investigation – whether as complainant or the accused – should treat the proceedings with caution and take steps to ensure they protect their rights throughout.
