Alice de Coverley (AdC): Charlotte, you have been raising awareness about institutional rape in the higher education sector, typified in your recent Telegraph article (‘Cambridge University needs to tackle its institutional rape problem’, 29 July 2019) and a forthcoming long-read for the Guardian centring on four cases. Did you have a particular message you wanted to convey to barristers?
Charlotte Proudman (CP): Yes, the fact that there doesn’t appear to have been a reported case yet where a higher educational institution in the UK has been found by the court to have breached the Equality Act or Human Rights Act for the appalling way in which rape/sexual harassment cases on campus have been handled. This is in marked contrast to the United States where a lot of jurisprudence continues to evolve and inform the way in which universities deal with such cases. There needs to be similar consideration of the legal principles over here.
AdC: We’ve had the Equality Act for nearly 10 years and negligence law is long-standing in the English legal system, so why haven’t there been any cases?
Georgina Calvert-Lee (GCL): I think students used to think they had no legal rights, or were just terrified of speaking to lawyers because of the perceived costs – not realising that there are various forms of funding available. Now as tuition fee-payers and ‘consumers’, they are more aware of their rights and #MeToo has also played a part in giving them a voice. For whatever reason we have seen an upsurge in enquiries about sexual violence on campus, and this is not because universities are empowering students. Some universities are still receiving advice that they do not owe students a duty of care, and they seem to pay more attention to their GDPR obligations than those arising under the Equality Act.
AdC: How did you both arrive at your interest in this area?
CP: I was doing my PhD at King’s College [Cambridge] in 2015 and at that point the University was introducing a sexual harassment policy. I was the women’s officer at King’s College at the time and got involved in helping the college draft its policy on harassment. When I started as a junior research fellow at Queens’ College  I was startled by the staggering number of rape cases on campus – particularly the number of complaints that were taken to the University or a student’s college and not even getting past filtering stage... often after a preliminary conversation they would just disappear. There is more consciousness about sexual harassment since #MeToo and more willingness to make a complaint but the mechanisms in place don’t match expectations – there is no fair and just mechanism for student complainants.
GCL: I’ve come via the American angle. I’m an English lawyer working for an American law firm and have been doing ‘Title IX’ [the American discrimination law in US universities] cases for a number of years. Various UK students then came to us with harassment claims and we realised that a whole part of the Equality Act was not being regularly used. People think that they are disempowered here and ask why we don’t have Title IX, but Title IX actually has a lot of drawbacks and the threshold is very high. In England we have a very good mechanism via the Equality Act, but students don’t know about it.
AdC: How does this relate to the recent Women and Equalities Committee report on enforcing the Equality Act and the role of the EHRC? Their inquiry exposed the lack of awareness and guidance [bit.ly/32omn7p].
GCL: Universities still have a long way to go. Since the mid-1990s they have been adhering to the ‘Zellick’ guidelines which seemed aimed at protecting universities and the accused, at the expense of the complainant. It urged universities to use a criminal standard of proof in its processes, and remarkably not to do anything if the complaint related to a criminal offence. The idea was that the police were better equipped to prosecute rape, but failed to acknowledge the practical difficulty of securing a rape conviction. This meant that students accused of rape, even by multiple complainants, could remain on campus without any precautionary measures in place to protect others. There was clamour for change from the National Union of Students and End Violence Against Women and other groups, and so more recently Universities UK and the Office of the Independent Adjudicator (OIA) have published new guidelines, urging for a fairer process: civil standard of proof, fair treatment of all. But the guidelines are broad brush and well-meaning universities struggle to adapt their old systems to comply. Meanwhile other universities just ignore them and continue to follow Zellick principles. University complaints processes still need reform and many are not fit for purpose, but there have been improvements: online reporting, sign-posting to support, student and staff consent workshops.
CP: Part of the problem is that educational institutions impose a confidentiality clause, and that’s one of the biggest issues. How are other women supposed to know about a particular case on campus or the disciplinary processes, and whether they work, when others are silenced?
GCL: Yes, this is a really important point. Some universities seem almost obsessed by confidentiality, even more so than other employers. Someone will go to them with an accusation and universities will tend to assume control and ownership of that information and only keep the complainant updated on their process on condition of strict confidentiality. Complainants are prohibited from even mentioning to colleagues that their complaint was upheld.
AdC: What angle are you taking from a discrimination perspective, given that it happens to women more?
GCL: University processes we see do not offer complainants a fair hearing, but deprive them of many of the privileges and protections accorded the accused, including access to evidence, representation, the hearing, an appeal. Complainants are not even treated as a ‘party’ to the investigation and resolution of their own complaint. We consider this a form of indirect sex discrimination, having a disproportionate impact on women.
AdC: How are universities responding to this?
GCL: There’s been a range of responses. They may think about it for a long time – some take a fairly obstructive route and fight back on every point, for instance refusing even to acknowledge that universities owe their students a duty of care. This forces us into lengthy correspondence explaining basic textbook principles and reminding them of industry guidelines. This forces up costs, and remember we are representing students, so there is a disparity of resources which universities can play with. Others want to do better for their students, are willing to acknowledge grounds for complaint, and keen to improve their processes. These universities use it as a learning lesson, and can turn the complaint into a positive.
AdC: How do you find remedies working, pre-trial? For example, agreeing improvements to policies through settlement discussions.
GCL: Yes, more creativity is possible in settlement discussions. Under the Equality Act, you can seek declarations and judicial review remedies, but these are not going to provide universities the much-needed step-by-step guidance on how to make their systems fair for both parties.
AdC: Are there such guidelines?
GCL: Not really. Universities UK and OIA guidelines are broad-brush, leaving university administrators without much help. I am currently working with the 1752 Group on draft proposals for this step-by-step guide, which we have put out to consultation. We are hoping this will be adopted and followed by institutions, and maybe endorsed by industry bodies.
AdC: Some chambers have the kite mark for equality, perhaps universities could have something similar? Going back to Charlotte’s Telegraph article, I’m interested in the types of universities where power structures might impede the way in which an investigation is run.
CP: I think in terms of Cambridge it has a unique culture – elitism, sports clubs, male drinking societies – where that kind of masculinity is endorsed by students and fellows. Consent is not fully understood or respected. Women often go along to these events for various reasons, potentially for social or cultural capital, and can get unintentionally involved in toxic environments. I have heard of women who experience rape as a result and colleges have failed to investigate. Astoundingly, under a change in the Cambridge University disciplinary rules in June [this year], sexual misconduct appears to have been excluded from its definition of harassment by the disciplinary committee. The university introduced a new procedure on 1 October that defined sexual misconduct as a breach of the rules of behaviour for students but only for complaints about sexual misconduct that occurred after that date! So, a rape complaint pre-October this year is unlikely to be investigated by the University. That’s one issue that’s unique to Cambridge. The other is that you have university staff who are dealing with complaints with very little knowledge and understanding of sexual misconduct and often close ranks due to concern about the university’s reputation. Consent workshops are not mandatory for students – unlike, say, Berkeley in the US where freshers can’t enrol at university without taking part in consent workshops. There’s no training for fellows – again unlike Berkeley. In the US there is a mandatory and centralised structure in place to report all disclosures to the Title IX office. The decentralised system in Cambridge, for example, makes things worse where colleges deal with the issue haphazardly.
AdC: Is there any prospect of a wider centralised reporting system for any student at any university?
CP: I’d like to see a body, perhaps funded by Department of Education, which sets out statutory guidelines to make all universities comply so that there is a minimum standard in place and procedure. If universities don’t comply then complaints could be lodged, investigated by this central body and the teeth for breach could result in a fine, like GDPR.
GCL: Also, given that women don’t come forward as they think they won’t be believed, that person would get more strength from a central body. A centralised register would allow the tracking of serial accusations against one person or department, which could provide an important safeguarding tool for students and staff.
CP: My big concern is that when a college is notified about inappropriate or abusive behaviour on campus they are failing to investigate and putting others at risk. When universities do act, they might just request that an alleged perpetrator intermits from their course, [takes a year out] to allow things to cool down and come back when the woman has graduated. The risk remains. The university is not accepting and fully understanding its duty of care. This year at Cambridge, a woman student was pressurised to intermit after she was sexually assaulted in college. She lost a year of her studies and felt isolated with no support. She really struggled as a result.
AdC: What do you suggest should be done when an allegation of rape is made at a university?
CP: Simple things to start with, such as looking at the accommodation; often the complainant is living near the accused perpetrator. So moving would be helpful, ensuring they do not come into contact during the course of their studies. Also suspension of the accused temporarily whilst a risk assessment is carried out. These are just basic things.
GCL: It’s mind boggling that these aren’t in place. The current response can be knee jerk – such as changing the timetable of the woman involved – and when asked why measures can’t be placed on the accused, universities take a moral high ground as nothing has been proven. But the investigation drags on, the accused ‘lawyers up’ and this makes the university even more cautious. It doesn’t expect the complainant to lawyer up too. Investigations need to be done more quickly with precautionary measures.
CP: And there is a conflict of interest. At Cambridge we have a bizarre system whereby the University decides whether a case is strong enough to go through the formal complaint process – and the University prosecutes the alleged perpetrator – and the University decides where the accused is guilty or not. Imagine the CPS acting as prosecution and jury – deciding whether the perpetrator is guilty or not? This can’t be a fair trial. It’s highly irregular to have the university prosecuting the case and then deciding the outcome.
GCL: The limitation period is also absurd. In this context Equality Act claims are similar to personal injury claims yet have a much shorter window – six months for a student or three months for an employee – and you should go through internal processes first. This is out of keeping with other limitation periods and seems like a slap in the face to those who have been raped or harassed and shows a lack of understanding about the impact of sexual violence on victims.
Georgina Calvert-Lee is Head of UK Practice and Senior Counsel at McAllister Olivarius.
Dr Charlotte Proudman is a barrister at Goldsmith Chambers and Junior Research Fellow at Queens’ College Cambridge.
Alice de Coverley has a civil practice at 3PB, including education, equality and personal injury law. She is a member of the Counsel Editorial Board.