Background to Office for Students (OfS) Duty of Care Consultation document

This blog is the first in a trilogy addressing the Office for Students’ Consultation document published in February 2023. This, the first, will take an overview of the environment within which the OfS Consultation document was forged. The second will explore the OfS Consultation document and its potential implications and the third will discuss the sector’s response and cautionary concerns.

The issue of sexual misconduct on university campuses, universities’ Duty of Care and government articulated views of these issues have been climbing the political / higher education (HE) agenda for some time. The recent court judgement has not been a catalyst but rather added momentum to a direction of travel within HE which has been formally acknowledged by the publication of the OfS document ‘Consultation on a new approach to regulating harassment and sexual misconduct in English higher education’ 23^rd February 2023.

Research / Guidance / Court Judgements

The ‘Everyone’s invited’ platform on Instagram facilitates the sharing of experiences of alleged ‘rape culture’, sexual harassment, slut shaming and coercion into sex or sharing naked photographs anonymously in what the organisation refers to as “testimony”. This platform contributes to building the profile of these issues. This was founded in mid-2020 and from April 2021 the organisation focused on universities within the UK. To date 119 universities have been named in testimonies on the platform and it has published lists of those attracting most allegations. These are often high status Russell Group HEIs. Another campaigning organisation is the 1752 Group which undertakes research and provides consultancy in the area of staff sexual misconduct in Higher Education.

Research which has focussed on sexual violence and harassment at an anonymised institution in the UK found that 55% of respondents had experienced this while studying at university with 20% of that number experiencing it more than once or twice. Students’ response to sexual harassment were interesting. Thirty four percent chose to avoid the person, thirty one percent ignored the person and did nothing while twenty nine percent told the person to stop. Only 5% of those who experienced sexual and gender based harassment reported the issue in some way.

This research asks specific questions about behaviours rather than using words such as ‘rape’ and ‘sexual violence’. In this way if respondents did not think what had happened to them was a sexual assault their experience would nevertheless be recorded. Of those reporting these experiences, a third said they had been subjected to ‘sexual violence’ since joining the university. A quarter that said they had at least one experience, reported that their private parts had been fondled / kissed / rubbed up against or having clothes removed without their consent. Eight per cent said they had experienced a finger, penis or object being inserted into their vagina or anus without consent. In the UK this conduct is considered to be rape or sexual assault by penetration. Eighty three percent of sexual and gender harassment was carried out by another student at the same university. 

A sector wide analysis of HEI policies was undertaken by Jordan, Anitha and Chanamuto this year which suggests a certain lack of consistency across institutions. Anonymous reporting is widely viewed as crucial because there is perceived to be a “significant gap between the prevalence and low reporting rates of gender based violence in higher education.”

Of the 129 HEIs surveyed 17 “actively discouraged or did not allow anonymous reporting and only 28 policies signposted that anonymous reports were possible.” In addition, of that 28 it was unclear whether ‘full’ anonymity was available, “where neither perpetrator nor reporting party are named.” A small number of HEIs keep records on gender based violence (GBV). Only 8 policies stated that “data would be recorded, evaluated / analysed and used to inform prevention strategies.” It is notable that approximately two thirds of institutions use “dignity and respect” or “bullying and harassment” policies to process GBV rather than focused identified polices such as ‘sexual misconduct’.

Current UUK guidance indicates that HEIs might take action through their internal disciplinary processes even where the reporting party has involved the police but the police did not charge or, charged and the accused person was found not guilty of criminal offences. Only 46 of the 129 institutions in the survey followed this guidance.

The Higher Education After #MeToo report of May 2023 suggests a substantive disparity between institutions in their processes to manage reports appropriately. It is argued here that an individualised approach prevails across much of the sector. These issues are embedded in policies as an interpersonal matter that requires individual redress. From this position the notion of mediation and informal resolution is derived. It is argued that this approach ignores the power difference between perpetrators and those subjected to their activities.

Additionally current institutional grievance procedures and “disciplinary processes tend to assume that complaints are solely made by an individual reporting party against an individual staff member or student. However previous research shows that perpetrators of gender-based violence and harassment are likely to target multiple people. This means that current, individualised processes are inadequate and result in poor outcomes for complainants.” The problem here is that the complainant can be told that a previous complaint must be first investigated and completed before a complaint against the same student or member of staff can be progressed.

Most recently (5^th October 2023) the County Court judgement against the Royal Welsh Drama School stated that it failed to uphold its Duty of Care regarding an investigation into complaints of Sexual Misconduct. Recorder Halford defined the “Duty of Care” owed as “reasonable protective, supportive, investigatory, and disciplinary action steps and in associated communications, including by honouring confidentiality assurances.” It was stated that the institution’s policies and guidelines committed it to safeguarding and investigatory actions which assumed a Duty of Care.

Conclusion

It is within this buoyant and rapidly developing activist, research, political and legal environment which appears to be maintaining a consistent directional trajectory that high profile Members of Parliament have been contributing the kind of ‘spice’ that politicians have a predilection for. Both the previous Education Secretary Nadhim Zahawi and the then Universities Minister Michelle Donelan (mid 2022) have expressed the view to the OfS that tackling sexual violence within HE should become a sanctionable offence. To be candid, repeated institutional breaches should carry the potential of loss of university status. Not to let clarity trump confusion, the current Minister for FE and HE, Robert Halfon, announced he would not be introducing a statutory Duty of Care for university students.

It is within this cauldron-like environment contributed to by the Everyone’s Invited campaign, the 1752 Group, a range of other research groups and MPs that the Office for Students Consultation document on a New Approach to regulating harassment and sexual misconduct in English HE was published earlier this year. It is this OfS document which will be reviewed in next month’s blog.