Sexual misconduct – justice hanging in the balance?
The rise in sexual misconduct allegations in universities and colleges is concerning. However, it does not necessarily mean a rise in incidents. It may be a welcome statistic; it shows that people feel they will be listened to and hopefully demonstrates there is a mechanism to record and deal with complaints.
But do we react correctly? Some guidance suggests that the student who files a sexual misconduct allegation – the reporting student – must feel believed from day one. But, with duties to all students, we should not assume that someone is guilty just because the allegation is sexual in nature.
Support both students
In the face of the current spotlight, there is a risk that the support we offer to the reporting student means that the reported student – the person accused – is neglected and does not get a fair hearing.
If an education provider fails in its duties then, aside from human costs, it could be exposed to claims worth millions of pounds: eg a student who is unable to practise medicine may suffer loss of earnings and pension for the rest of their lives. Of course, any failure to safeguard the interests of the reporting student or other potential victims could also have huge financial and human costs.
So how do we achieve balance?
The first step should be to assign appropriate staff members to look after the welfare of each student – one each. These people are not there to investigate or to judge.
Investigator – pick the correct person
Next up, an investigator must be appointed. This will be someone without prior knowledge of either party. Ideally it will be someone external to the organisation. A specially trained HR practitioner – someone with experience of people and addressing human behaviour – would be ideal.
The role is often misunderstood, particularly by investigators who are untrained. They are not prosecutors, gathering evidence to prove guilt. What they must do is look at all possible explanations for the allegations having been made.
This is not easy. It involves asking difficult questions. It might involve seeking out evidence that a student is mistaken or their recollection is impaired in some way, or even that the allegations are fabricated. This questioning must be addressed delicately, and at the right time.
Unfortunately, in my experience, investigators can overstep the mark. I have seen training and guidance that the reporting student must always be believed from the outset – which is the exact opposite of a balanced approach. I have seen policies that give the impression that the investigator will conclude guilt or innocence – which is premature and disadvantages the reported student when it comes to a fair hearing.
The investigator must ensure that their empathy does not hamper a fair investigation. On one occasion, I was reviewing a client’s draft report and asked why the investigator had not referred to the possibility that the allegation was untrue. The investigator replied: “I met with the student and know she’s telling the truth.” They had stumbled into supporting one party against another and had excluded evidence which they had decided they didn’t believe; that is not their role. Fortunately, we were able to resolve the issue and ensure a fair hearing.
Once investigations are complete, the investigator must make recommendations – in particular, whether there is sufficient evidence to justify a hearing. They should not say who or what they believe – that is something for the decision-making panel after a hearing.
The reported student might appoint a lawyer. This has caused alarm in some quarters, with people saying that this is unfair to the reporting student. However, if you were accused, would you not want to be represented? And why would a university or college be reluctant to hear professional representations? It does not need to become adversarial – it is simply a case of listening. A lawyer can ask the panel to look at pertinent angles and highlight points that may be unfair to their client – things that a panel should be looking at anyway.
Alarm over lawyers does a disservice to the panel. In my experience, when I have been advising panels, they have been able to look beyond ‘lawyer-speak’. They are not hoodwinked.
Any concerns about a lawyer potentially mis-steering a panel can be addressed by the panel having its own lawyer, in an advisory capacity, to help it put arguments into perspective. A lawyer experienced in disputes over conduct can be very helpful, which is why organisations often use employment lawyers. In this way, the panel can ensure that all positions have been considered regardless of who else (if anyone) has appointed a lawyer. Organisations needn’t instruct lawyers in every misconduct case, but it is surely merited in allegations of sexual misconduct? And certainly that is better than denying the reported student the opportunity to be represented.
Alarm over statistics and lawyers misses the point. Here are three key matters to consider:
- Ensure separate support for both parties.
- Select an investigator with the right skills and experience, and the ability to be truly impartial. Does it justify using someone external?
- Ensure the panel members are expertly advised and are not resistant to legal representation.
In summary, the organisation must ensure that everyone is supported, and all voices are heard. That is the case regardless of who is or is not legally represented.
A version of this article was featured in Times Higher Education.