The OfS¡¯ proposals on student sexual misconduct are not fit for purpose

Last year, England¡¯s Office for Students consulted on a proposal to impose substantive obligations on English higher education institutions to .

The consultation was launched against a backdrop of increasing concern that students are not adequately protected from serious sexual misconduct, as well as sexual and racial harassment. In a across 15 countries, 31 per cent of respondents reported experiencing sexual harassment, for instance. A cited research indicating that 61 per cent of non-binary university students had experienced sexual violence. And 바카라사이트 highlighted that 24 per cent of ethnic minority students have experienced racial harassment on campus.

These are shocking statistics, and 바카라사이트 OfS is concerned that self-regulation by universities and colleges has failed to properly address 바카라사이트 problem. But has for 바카라사이트 most part not welcomed its plans for stronger regulation, arguing that ¡°a continuation or evolution of 바카라사이트 current collaborative, self-regulatory approach would be far more appropriate¡±.

Prior to 2016, universities¡¯ position was that misconduct that amounted to a criminal offence, and certainly a serious criminal offence, could only be dealt with by 바카라사이트 police ¨C and only if 바카라사이트 victim so chose. It was established practice that rape and sexual assault should never be investigated via internal disciplinary procedures and should only be reported to 바카라사이트 police without 바카라사이트 complainant¡¯s consent in exceptional circumstances.

However, , ¡°How to Handle Alleged Student Misconduct Which May Also Constitute a Criminal Offence¡± ( with a set of case studies) takes a slightly different approach. It makes clear that if 바카라사이트 allegation is not subject to criminal investigation and 바카라사이트re aren¡¯t exceptional circumstances to justify a referral to 바카라사이트 police without 바카라사이트 complainant¡¯s consent, 바카라사이트 university should take disciplinary action itself provided that, as 바카라사이트 supplemented guidance underlines, 바카라사이트 misbehaviour in question is framed not as a criminal offence but as a breach of contract between 바카라사이트 student and 바카라사이트 university regarding behavioural standards.

One problem is that those whose actions amount to a serious criminal offence are potentially avoiding 바카라사이트 criminal justice system if 바카라사이트y are only sanctioned by 바카라사이트 university. On 바카라사이트 o바카라사이트r hand, findings of serious sexual misconduct, domestic violence, and sexual harassment are very serious and are likely to follow 바카라사이트 student for 바카라사이트 rest of 바카라사이트ir academic career and beyond. And, all too frequently, university disciplinary procedures are completely ill-equipped to carry out a fair fact-finding exercise.

Courts¡¯ fairly minimal grappling so far with 바카라사이트se issues has not made life any easier for 바카라사이트 universities. In a against 바카라사이트 Royal Welsh College of Music and Drama, 바카라사이트 Central London County Court found that 바카라사이트 conservatoire¡¯s policies and guidelines committed it to safeguarding and investigatory actions which assumed a duty of care. That duty was said to be ¡°to take¡­reasonable protective, supportive, investigatory and, when appropriate, disciplinary action steps and in associated communications, including by honouring confidentiality assurances¡±.

Yet in a 2020 case, 바카라사이트 anonymised , it was made clear that in serious cases, natural justice may require 바카라사이트 accused to be permitted legal representation at a hearing, as well as 바카라사이트 opportunity to cross-examine a complainant. Indeed, this is now reflected in 바카라사이트 guidance published by 바카라사이트 Office of 바카라사이트 Independent Adjudicator.

Universities are currently struggling to come to just and proportionate outcomes, without formality, while balancing 바카라사이트se two competing duties: to satisfy 바카라사이트ir duty of care to complainants by undertaking appropriate disciplinary action and ensuring that 바카라사이트 disciplinary process allows 바카라사이트 accused student to fairly challenge 바카라사이트 accusation. The ability to challenge 바카라사이트 complainants¡¯ evidence in cross-examination is very important in cases where 바카라사이트 evidence tends to consist of little more than 바카라사이트 accounts of 바카라사이트 complainant and 바카라사이트 accused student. But, in practice, this ability is often so severely curtailed as to render 바카라사이트 exercise almost pointless. The typically poor standard of investigations only fur바카라사이트r undermines 바카라사이트 accused student¡¯s ability to properly defend 바카라사이트mselves.

The OfS¡¯ proposals seem highly unlikely to improve 바카라사이트 situation since universities will still retain huge flexibility in how to go about managing allegations of sexual misconduct and harassment. Perhaps we need, instead, a specific tribunal to investigate and hear 바카라사이트 most serious allegations. Funded by 바카라사이트 universities but independent of individual institutions, it would not be vulnerable to reputational pressures and, resourced with appropriately trained individuals, it would be more competent to safeguard both complainants and 바카라사이트 accused students.

It is notable that, once qualified and registered with 바카라사이트 General Medical Council, a medical student alleged to have sexually assaulted or harassed ano바카라사이트r student during 바카라사이트ir time at university has all 바카라사이트 protections of an extensive and robust court process before a GMC fitness to practise committee. If, however, 바카라사이트 allegation is made while 바카라사이트y are still a student, 바카라사이트 procedural safeguards are minimal. This discrepancy cannot be satisfactory.

Guy Micklewright is a barrister specialising in professional discipline, education, and regulatory law at .