Update | Education: Is plagiarism a strict liability offence?

Salima Mawji and Asma Nizami ask if ?plagiarism is a strict liability offence

Remember Gaddafi-gate at the London School of Economics? While the University of London did not, in the end, strip Gaddafi of his doctorate having decided that he had not plagiarised, and that the views expressed in his thesis were his own, it was determined by Lord Woolf during his independent inquiry into the matter, that Gaddafi had received support and assistance which had not been available to other students. A determination of plagiarism can have serious ramifications.

Recently, a German education minister has resigned from her ministerial position after a university in Dusseldörf stripped her of her PhD following a review by a faculty committee which found that she had “systematically and intentionally” plagiarised her PhD thesis in 1980. Hers is the second plagiarism case to effect the German government in as many years. Rather sensationally, two German members of the European Parliament also had their doctorates taken away from them in 2011 prompting them to step down.

During the 1988 American presidential campaign, Joe Biden, the current vice-president was forced to acknowledge that as a law student, he had copied five pages of a published article and had only used one footnote in his entire 15 page essay. He insisted that he had not intended to deceive and that the incident had only occurred as he had not been aware of correct referencing techniques.

The news that dozens of Harvard students were sanctioned for cheating after a tutor realised that many students had submitted identical answers to a take-home exam in 2012 has been widely reported. At its peak, the Harvard investigation covered 125 students, around half of whom elected to withdraw.

Closer to home, plagiarism in British universities has been reported to be on the rise, in part due to increased reliance on internet research. According to an investigation conducted by the UK Centre for Legal Education before its closure in 2011, in the academic year 2003-2004, almost half of 64 British universities had reported incidents of plagiarism. A 2008 survey conducted by the Cambridge University student newspaper, Varsity, found that 49 per cent of students surveyed admitted that they had committed plagiarism as defined by the University of Cambridge.

‘Out of one’s mind’

In 2011, the Office of the Independent Adjudicator (OIA), the body set up by the Higher Education Act 2004 to administer student complaints relating to higher education institutions saw a 20 per cent increase in complaints on the previous year. The OIA deals with cases once a university’s internal procedures have been completed and the student remains dissatisfied with the outcome. It determines whether the university about which the complaint has been made has abided by its own internal procedures and whether it has acted reasonably in all the circumstances of the case. The 20 per cent increase is not solely attributable to the increase in students being put through plagiarism procedures, but according to a recent interview with the OIA’s chief executive, Rob Behrens, in The Guardian, plagiarism is one of the top three reasons for a complaint to the OIA. In a recent OIA determination, which has no precedent setting value, Case Study 70, a student (S) who had been awarded her degree by a university was put through an academic misconduct procedure following an allegation that she had commissioned an essay.

It was recommended that S should have her qualification revoked and that fitness to practise proceedings should be initiated against her. S appealed the decision, attended an appeal hearing and when her appeal was rejected, withdrew from the university before the fitness to practise proceedings could be concluded. S’s subsequent complaint to the OIA was upheld on the basis that the university had breached the principles of natural justice by allowing those who had had involvement in the investigation of her case to sit as members of the appeal panel which had dealt with her case. This had led to a perception of bias and was improper. The OIA recommended compensation amounting to £1,500 for the distress and inconvenience caused to S. This reinforces the need for fairness in plagiarism cases.

To ensure compliance with the principle of fairness, higher education institutions need to recognise that intent must play a role in the definition of plagiarism and that any sanctions must be proportionate to the severity of the academic offence. Most readers will recall the arguments advanced against strict liability offences from law school. Many university procedures treat plagiarism as a strict liability offence when in reality, to maintain a fair system, a lack of mens rea on the part of the student, should operate as a valid defence to an allegation ?of plagiarism.

There is no common definition of plagiarism which all British universities and law schools subscribe to. There is also cross-institutional diversity in the approach taken in cases of alleged plagiarism. Some universities will deal with students at the module tutor level, while others will trigger formal university level procedures as soon as an allegation comes to light.

According to the second edition of Black’s Legal Dictionary, plagiarism is, “the act of appropriating the literary composition of another, or parts or passages of his writings, or the ideas or language of the same, and passing them off as the product of one’s own mind.” This definition implies that the actus reus is sufficient to constitute the academic crime; there is no mention of an intention to deceive or an intention to pass off the work of another as one’s own. Under this definition, if a student insufficiently or inadequately cites sources owing to lack of knowledge of correct referencing techniques, he would be guilty of the academic offence of plagiarism as the effect of his error, albeit unintentionally, would be to pass the work off as his own.

Harsh and disproportionate

Academic integrity is a value which all universities need to work to uphold. In a system which does not uphold academic honesty, academic qualifications arguably lose their value. While there are students who quite intentionally will engage in plagiarism either owing to laziness, fear, ?or lack of time, there are many others who face accusations of plagiarism and consequently, the prospect of serious sanctions such as automatically failing their degree, who are guilty of little more than poor referencing techniques.

International students, less familiar with academic writing and referencing techniques, and having experienced a very different academic culture in their home country, can often find themselves subject to university disciplinary proceedings following plagiarism charges. Rob Behrens, speaking at a conference at Oxford Brookes University on ‘Institutional Policies and Procedures for managing Student Plagiarism’ on 25 May 2010 recognised this, saying: “Cross cultural experiences of newly enrolled students coming from different countries, different schools, different labour markets... requires pro-active educative strategies to level the playing field.” The focus in these cases should be on educating students, warning them right from the start about appropriate academic practices and on attempting to establish the reasons for the alleged misconduct if an allegation comes to light. Consideration needs to be given to mitigating circumstances.

University procedures should allow work to be amended and re-submitted to be re-marked – subject to a cap if necessary. It is unfair for students to be penalised as although they may have plagiarised, ?intent to plagiarise has not actually been made out.

While university procedures rarely differentiate between intentional and unintentional plagiarism, universities frequently classify plagiarism as constituting ‘major’ or ‘minor’ offences. The basis for the classification can vary from university to university, but most often depends on the quantity of the work (a threshold test) which is alleged to have been plagiarised. The classification of the alleged plagiarism can impact on the procedure the student will go through during the academic misconduct proceedings as well as the penalties. In one recent case, the only penalty available to the university if a finding of major plagiarism was upheld, was expulsion from the course of study and exclusion from all future assessment at the university – a harsh, and potentially disproportionate sanction.

There are university procedures in which an intention to deceive on the part of the student is inferred in situations where a student is accused of ‘major’ plagiarism. This is grossly unfair – if a particularly oblivious student who has no idea about correct methods of citations, who has not been warned of the error in his technique, submits a doctoral thesis having worked on it for years, it is unfair to suggest that without the need for any cogent evidence relating to the student’s intention, he can be found guilty of major plagiarism and consequently be exposed to the relevant sanctions attached to that allegation.

Life-changing

Universities rely increasingly on ?‘plagiarism detection’ software such as Turnitin, a software programme which scans essays and compares them to other essays and websites in order to produce a ‘similarity index’ figure. Turnitin reports are frequently analysed incorrectly and when their reports are considered in isolation, they shed absolutely no light whatsoever on the crucial issue of intention. Turnitin reports should be interpreted by those ?with appropriate expertise.

There are examples of cases where students are being accused of plagiarism and being exposed to plagiarism procedures which could result in them being expelled from their courses in situations where a cursory analysis of a Turnitin Report has ?led to an allegation that x per cent of a ?piece of work was plagiarised. In reality, the x per cent similiarity index would have scanned the essay’s bibliography, headings, footnotes – items which are likely to ?match other documents already on the system. A similarity index of x per cent ?does not mean that x per cent of the content was plagiarised.

Plagiarism procedures can have life-changing effects on the lives of students. It is therefore imperative that universities comply with the rules of fairness and acknowledge the need to analyse cases carefully bearing in mind the issue ?of intentionality.