Everyone's Invited - Harassment and Sexual Misconduct in Higher Education

Only weeks ago few people had heard of it but the intense media scrutiny which focused first on schools (particularly private schools) has now extended to colleges, universities and beyond and already triggered a response from the Government and the Office for Students (OfS).

Given the high proportion of school pupils who progress to university it was arguably only a matter of time before the focus widened to include higher education. On 15 April 2021, following the submission of more than 1,000 testimonies by current and former students, Everyone's Invited published a list of the universities involved. As of 19 April, 123 HEIs had been named from across the UK, the USA, Australia, France, Germany, Italy and Albania. Of the UK institutions, many are in the Russell Group and 10 are mentioned in 36 or more testimonies.

In terms of the size of the UK student population, which is around 2.5 million, these numbers are relatively small. Unsafe Spaces, a study completed last year, estimated that around 50,000 incidents of sexual harassment and assault take place in HEIs each year. Nevertheless, the impact of Everyone's Invited, which has now received more than 15,000 testimonies, has been dramatic and tackling this issue has again become a priority for the OfS and the HE sector as a whole.

A Long-Standing Issue

The fact that students in higher education are usually adults does little to alleviate the trauma and long-term impact of sexual harassment and abuse. This has been recognised for some time and there has been prolonged scrutiny of these issues in the UK for nearly 30 years.

In 1994, a male student was accused of, and later charged with, raping a female student at the same institution. He was disciplined by his university before being acquitted by a court. In response, the university was sued and the student secured substantial damages for the way that he was treated.

The HE sector responded by commissioning the Zellick Report from the Council of Vice Chancellors and Principals, now Universities UK (UUK). This provided guidelines for universities dealing with student misconduct that might constitute a criminal offence. Several of the recommendations made are now recognised as problematic, notably that rape and sexual assault should never be investigated under internal disciplinary procedures until and unless it is reported to the police and the outcome of the criminal process is known.

As the National Union of Students (NUS) has noted, the guidance seems to be a clear reaction to concern created by the case mentioned above, in that proactivity by universities faced with allegations of sexual assault by a student could result in financial and reputational harm. It predated a number of important legal developments, including the enactment of the Human Rights Act 1998 and the Equality Act 2010 and does not reflect the duty of care universities have to their students.

It has also been recognised that the guidance appears to overlook how few sexual assaults are actually reported. In 2010, the NUS published Hidden Marks, which identified a range of reasons for this, including victims feeling shame, embarrassment, fear of blame and fear of not being believed. Of those incidents that are reported only a small proportion result in prosecution. Moreover, even if criminal proceedings do take place, they are unlikely to conclude before the students involved graduate, further disincentivising those affected to come forward.

The way HEIs approach these issues has changed during the last decade. In particular, there has been recognition that an appropriate response to allegations of sexual violence requires sensitivity and specialist training. More emphasis is placed on student support and there is greater clarity on the approach that should be taken to disciplinary action. At the same time, it was clear this was not enough.

The 2014 Annual Report of the Office of the Independent Adjudicator noted sexual harassment and 'lad culture' as issues of concern. In September 2015, UUK launched its Changing the Culture campaign and appointed a taskforce to examine violence against women, harassment and hate crime affecting university students and establish a strategic framework.

The resulting report in 2016 contained a series of practical recommendations to support implementation of that framework. Also in 2016, a steering group drawn from the taskforce published guidance for HEIs on how to handle alleged student misconduct, in response to concerns about continued reliance on the Zellick guidelines. This addressed a number of important misconceptions about the basis and scope of the student disciplinary process, making a referral to the police and the distinction and interplay between internal action and criminal proceedings. In addition, the guidance emphasised that the provision of information and support are fundamental to the effectiveness of institutional response.

In 2018 and again in 2019, UUK assessed sector progress in these areas. The first review gathered feedback from 20 institutions and found improvements, such as a clear increase in the number of disclosures. However, there were still significant barriers to progress, including the need for sustainable funding, training and the maintenance of a consistent sector-wide approach. The second review was wider, involving 95 institutions and also reported progress, particularly in relation to prevention. One notable approach emphasised the importance of partnerships with schools and colleges in developing a culture of zero tolerance that bridges the transition from secondary to tertiary education. One message that can be taken from Everyone's Invited is that this remains as important as ever.

Taking a Regulatory Response

The Department for Education's response to the furore caused by Everyone's Invited in schools included the creation of a new NSPCC helpline and an immediate Ofsted-led review of safeguarding policies in both the maintained and independent sectors. This will involve social care, the police, victim support groups and school and college leaders and is due to be completed by the end of May.

On 19 April, the OfS called on HE providers in England to urgently review their policies, systems and procedures ahead of the new academic year and published a Statement of Expectations. Originally devised following a 2020 consultation delayed by the pandemic, the Statement covers sexual misconduct, as well as harassment connected to a range of protected characteristics. It provides a standard for all registered institutions requiring demonstrable commitment, engagement and a clear strategy that includes governance accountability lines, a statement of behavioral expectations and adequate staff and student training.

Policies and procedures must enable the disclosure and reporting of abusive behaviour (including anonymous and third party reports) and facilitate a fair, clear and accessible approach to taking action in response. This must include an adequate disciplinary regime and the ability to respond appropriately and consistently to student complaints and appeals. The range of actions that may result from an investigation must be visible and explicit and it must also be clear how confidential information will be used and shared. Emphasis is placed on providers ensuring students involved in an investigatory process (both the reporting and responding parties) have equal access to effective support and that reports are dealt with within a reasonable time frame.

Whilst the published Statement of Expectations contains only recommendations not regulatory requirements, the OfS is considering the possibility of connecting the Statement directly to the OfS's conditions of registration. We can also expect recent developments to have an impact on the OfS's new guide to preventing and addressing harassment and sexual misconduct in universities and colleges.

 Unsurprisingly, the high public profile of Everyone's Invited has re-emphasised the relationship between HEIs and their communities and the extent to which institutions should be responsible for the welfare of adult students. It remains rare for legal action to be taken against universities but there is no dispute that they owe their students (and staff) a duty of care and have statutory obligations to provide a living and learning environment free from discrimination. Gender is a relevant protected characteristic because complainants of harassment and sexual abuse are more likely to be women, but other protected characteristics such as race should not be forgotten.

All providers will doubtless be reviewing the systems they have in place to ensure that their students feel safe and confident that reporting and response mechanisms are accessible and effective. There is an opportunity to build on the progress already made by clarifying and consolidating safeguarding procedures thereby taking steps that pre-empt what are highly likely to become mandatory requirements in the near future.

For further information about the issues surrounding Everyone's Invited please contact Kris Robbetts in our Higher Education team on 07795 662 796, or please complete the form below.