Navigating sexual misconduct allegations in universities

There has been a sea change in public attitudes to allegations of sexual misconduct among school age children and university students.

Not only are allegations of inappropriate behaviour being made more frequently, but schools, colleges and universities are increasingly likely to conduct their own investigations into them.

It has become commonplace for educational establishments to try to determine the truth about sexual allegations, and to impose potentially life changing sanctions on a young person found responsible.

While these proceedings no doubt have laudable aims, they can take a heavy toll on the young people involved and can offend the principles of natural justice.

Any young person involved in a school or university investigation - whether it be as complainant or respondent - should treat the proceedings with caution and take steps to ensure they protect their rights throughout.

Homespun inquiries

Every school, college and university in the UK should have in place disciplinary procedures for dealing with an allegation of sexual misconduct allegedly committed by a student.

These procedures vary between institutions, but there are some common characteristics.

Once an allegation is made, the institution will appoint someone to investigate. This person, who may be a staff member or an independent professional, gathers evidence including witness accounts, third party evidence such as CCTV or other records, and, crucially, takes an account from the accused.

This material is presented to a decision-making body which then dispassionately determines (on the balance of probabilities) whether the allegation is correct, and if so, agrees an appropriate sanction.

The problem, in essence, with this approach is that it is fresh territory for many schools and universities. Rather than develop special procedures for dealing with such serious allegations, many have simply adapted codes which were developed to deal with far less consequential issues such as plagiarism and bullying.

Recent research by Hickman & Rose found no standard sexual misconduct procedure among Russell Group universities. There is no agreement about how these proceedings should be properly run among Britain’s universities.

Universities do sometimes appoint independent professionals to undertake these investigations, but that is not the case for most schools where this important function is often carried out by a safeguarding lead or senior teacher. Schools in the independent sector also generally operate sui generis.

There is a worrying lack of awareness of the rules of evidence and how they should or shouldn’t apply, the burden and standard of proof, and procedural fairness.

The lessons of AB v XYZ

The High Court rulings in the two cases of AB v XYZ of 2020 and 2023 make instructive reading for those facing the prospect of university investigation.

The cases concern an anonymised individual (AB) who sued his university (XYZ) twice following its investigation of and finding against him in relation to an allegation of sexual assault.

The High Court ruled that the university in question had twice breached AB’s rights, firstly when it refused to allow him to be legally represented at an initial disciplinary hearing; and secondly when it ruled that hearsay evidence was admissible at a subsequent hearing.

These cases are an important reminder of several key issues:

• Universities have a duty to uphold natural justice and an accused having legal representation may be necessary to ensure procedural fairness.
• While there is no automatic right to representations at a university disciplinary hearing, applying the principles as set out in R v SoS for the Home Department ex p Tarrant [1985] QB 251 (the Tarrant principles), the more serious the charge, the more likely the need for the accused to be represented.
• It seems likely that any allegation of sexual misconduct warrants legal representation.
• The understandable reluctance of complainants to be questioned by a lawyer can be limited by effective chairing of a disciplinary committee, for example by limiting questions or directing questions through the panel chair.
• Where the evidence of the accused is fundamentally contradicted by the complainant, as is almost always the case in allegations of sexual misconduct where consent is the issue, it is essential that the accused has the ability to test witness evidence by questioning.

The core issue in these cases 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. It misdirected itself in complex areas of law and procedure which required careful, and dare I say legally qualified, consideration.

The result was unsatisfactory for all: the complainant’s account was rendered redundant while the claimant left the university before spending years fighting to clear his name.

Inadequately trained staff

While some universities will employ outside experts and agencies to run sensitive investigations, many do not. Most schools won’t either. They instead make use of existing staff members, who while potentially well-intentioned, may have received little (sometimes no) training in how to do this important job properly.

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.

They may also lack the confidence and skills to pursue evidence which might challenge what they perceive to be their employer’s desired outcome.

These are issues that the criminal justice system continues to battle with. It appears unreasonable to expect unqualified academic staff to take on quasi-judicial roles when conducting these investigations or proceedings.

The criminal / disciplinary interaction

Whenever an allegation also constitutes a potential criminal offence, then a complaint may also be made to the police, either by the complainant, the educational establishment or via Social Services.

As a criminal defence solicitor, I frequently act for students facing both disciplinary and police investigations. I have seen first-hand the problems faced by suspects and complainants when the two forms of investigation run side-by-side.

One issue can be the extent to which evidence is shared between investigations.

Despite the vastly different remits under which they gather evidence, it is certainly not the case that information provided to one investigation will not be used in another.

When children are questioned by the police, they have certain rights and protections: the right to independent legal advice, the requirement that an appropriate adult is present, the right to silence. None of these protections apply as a right in a school investigation.

I have known matters in which students, anxious to quickly clear up what they perceive as minor misunderstanding, have provided an account of an event to a school investigation without being aware of all the implications of doing so.

This initial account may be given to a teacher soon after a complaint has been made and with no parent present. The child feels compelled to answer questions in order to protect their place at the school.

However, when the ‘minor’ event in question is later determined to constitute a potential crime, then that initial, casually provided, account is handed to the police.

While the child’s wish to quickly clear up perceived misunderstandings is understandable, they should know that anything they say can and will be used in a subsequent police investigation. Ensuring that a parent, or another independent adult chosen by the child, is present when a child is being questioned should be a bare minimum. 

A dangerous misunderstanding

A recent story in 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, told the newspaper: “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.”

This comment reveals a worrying misunderstanding of what the university’s proper role in these matters is.

While it is true that a university 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.

Not only can panel decisions kickstart police investigations, but testimony and evidence provided to these hearings could form part of future criminal prosecutions. 

Peter Csemiczky is a partner at Hickman & Rose