Professor of Feminist and Queer Legal Studies
Professor of Law
Vanessa E. Munro
Professor of Law
University of Warwick
As the United States digests new national rules for tackling sexual misconduct and assault in universities and the Office for Students in England consults on possible new guidance – albeit with the deadline paused for now due to COVID-19 – the time is ripe to rethink the approach to sexual violence and misconduct on campus in universities across the UK.
At the forefront of such deliberations must be our knowledge of the common experience of sexual violence in universities. In 2018, the “Revolt Sexual Assault” campaign surveyed 4,500 students across 153 UK institutions, and found that 31% had felt pressured to engage in sexual behaviours. Further, 62% reported having experienced some form of sexual violence at UK universities, with this figure rising to 70% for female respondents, 48% of whom reported having been the victim of at least one sexual assault. Only 6% of respondents reported their experience of sexual violence to the university, and only 2%of those experiencing sexual violence felt both able to report it to their university and satisfied with the reporting process. Further, the recent report from the National Union of Students as well as a report from the UK based campaign and lobbying organisation, the 1752 group, found university responses to reports of sexual misconduct between staff and students overwhelmingly unsatisfactory.
These findings are worrying. They not only show that university campuses are not the “safe spaces” many of us try to create, but that students do not feel confident or safe reporting their experiences via university complaints procedures. Why might that be?
The #MeToo movement, initiated by Tarana Burke in 2006, was revived in 2017 following the allegations of sexual assault against film producer Harvey Weinstein. The movement prompted victims – mostly women – across the world to speak out about sexual violence and harassment they had experienced. The hope was that such disclosures would both highlight the extent of the problem, and encourage victims of sexual harassment and abuse to turn to the authorities to ‘call out’ perpetrators and demand they are held to account. Despite long-standing and well-established concerns about the ability of the criminal justice system to respond appropriately, or provide redress, to such victims, evidence indicates that more and more people in the UK are reporting sexual violence and calling on the state to provide avenues of accountability.
At the same time, it is also now increasingly common to seek other forms of redress, for example through parliamentary, employment or university complaints processes. It appears, however, that the problems identified with criminal justice system procedures (for instance, that they perpetuate a culture of disbelief of victims, and that they are lengthy and retraumatising) risk being replicated inside the university environment. University complaints processes do not mirror the legal and evidential requirements of the criminal justice system and so do not require investigators who have legal expertise or training. But the fact that they are often undertaken by staff who have little training or experience of dealing with victims of sexual harassment or violence is a significant concern. The procedures followed are often antiquated, commonly excluding the victim from participation in the process. There are other thorny issues too, such as who should conduct investigations – members of the university or external profit-making consultants, each in different ways posing potential conflicts of interest; what role, if any, should non-disclosure agreements play; what sort of sanctions can a university impose; and can (should) a university ever refer a complaint to the police without the victim’s consent.
Several high-profile cases in the UK have brought these questions to the foreground. One case, at Warwick University in 2018, made national news headlines. Female students had discovered a Facebook group chat amongst male colleagues that included rape threats against them. Although their complaints were upheld by the University, the women involved reported that they were asked a series of questions during investigations that they felt were inappropriate, including whether they had ever had sex with any of the male students. They also reported that, when the sanction initially imposed by the university against some of the perpetrators was reduced on appeal – from a 10 year to 1 year exclusion – they were not informed in a timely manner, despite it raising the possibility of the women having to again attend university with these men on campus. Following an external review, Warwick University has now taken steps to revise and improve its sexual violence policy. Other universities, some of whom have encountered their own high profile incidents, or who have publicly admitted that they have a significant problem with sexual misconduct, such as Cambridge, have similarly tried to formulate clearer processes, managed by trained staff, and accompanied by new ‘by-stander’ programmes to support students in calling out inappropriate behaviour. However, there remains no coordinated system for gathering statistics on sexual violence and harassment complaints in the University sector. There is also no standardised code of conduct nor national framework to guide the processes by which universities should receive, investigate and determine complaints, and no mechanism for sustained external scrutiny.
Currently, then, each university is left to make its own policies and processes, with little formal guidance or framework (and the OFS guidance currently being consulted upon would only apply in England, not Scotland, Wales or Northern Ireland, to whom such matters are devolved). In 2018, the Women and Equalities Parliamentary Committee on the “Sexual harassment of women and girls in public places” recommended that the UK government put in place legal obligations under the Equality Act that would link state funding to the requirement for educational institutions to prohibit sexual discrimination and harassment, and to collect and publish data on their responses, but the government at the time declined to take up this recommendation. Beyond the Equality Act, there may also be strong arguments that Articles 2, 3 and 8 of the European Convention on Human Rights are relevant to any evaluation of a university’s processes addressing sexual violence and harassment on campus. But even if there were such systems in place in universities, there is no guarantee that those who have been assaulted and / or harassed would report such experiences. As suggested by recent statistics, UK universities may still be failing to convince their students that complaints and investigations of sexual violence and harassment will be “fair, accessible and timely” (as promised by the Consumer Rights Act of 2015, which now treats students as “consumers”), much less sensitive and respectful. Even with the best of intentions, universities will be unable to bring about meaningful change for students if it cannot earn their trust.
These are important issues and ones that the #MeToo movement has helped to bring into the public eye, with many specific campaigns focussed on universities such as #MeTooPhD and #MeTooOnCampus. Securing “campus justice” and redress is about meaningful consequences for perpetrators, recognition of the experiences of survivors, participatory dialogue and voice and, ultimately, prevention of further sexual violence and misconduct. While there may be a substantial justice gap here, universities do offer the potential to realise the breadth and complexity of the interests of survivors, and to do so in ways that need not uncritically replicate the well-established shortcomings of criminal justice processes. Therefore, urgent action is required by universities to meet these expectations and begin to offer a sense of justice to survivors of sexual violence and misconduct.
Sharon Cowan is the author of ‘Sense and sensibilities: A feminist critique of legal interventions against sexual violence’ (2019) 23(1) Edinburgh Law Review 22-51, a version of which is available here.
With Nicole Westmarland, Clare McGlynn is the co-author of ‘Kaleidoscopic Justice: Sexual Violence and Victim-Survivors’ Perceptions of Justice’ (2019) 28(2) Social & Legal Studies 179-201. The article is available under an open access license.
Vanessa Munro is the author of ‘Shifting Sands? Consent, Context and Vulnerability in Contemporary Sexual Offences Policy in England and Wales’ (2017) 26(4) Social & Legal Studies 417-440, which is available for free via SAGE’s e-Pub reader.
With Magdalena Furgalska, Clare McGlynn is the co-author of ‘What does Campus Justice mean for survivors of sexual violence?’, a blog written for Social & Legal Studies and available to view here.
About the authors
Sharon Cowan is the Professor of Feminist and Queer Legal Studies at Edinburgh University School of Law. Her research focuses on issues of gender and sexuality and sexual violence, in the fields of criminal law, equality law, and asylum and refugee law. She is currently working on a project about the use of sexual history and private data in sexual offences trials.
Clare McGlynn is a Professor of Law at Durham University with over twenty years of experience working with governments, policy-makers and voluntary organisations to reform laws relating to pornography, sexual violence and image-based sexual abuse, including ‘revenge porn’ and voyeurism. Her research with sexual violence survivors seeks to understand their perspectives on justice and the possibilities of restorative justice.
Vanessa Munro is a Professor at Warwick Law School. She has published widely on legal and social responses to gender-based violence, and is currently working on projects about the impact of the not proven verdict upon rape complainers and the use of sexual history and private data in sexual offences trials.