In the immediate aftermath, consider seeking medical help and reporting to the police.
If you have experienced any form of discrimination, harassment or sexual violence (“misconduct”) on campus or while at university, your immediate response will probably be determined by the type of misconduct. If you are at risk of further violence or harm, or if you have been injured and need medical care or support, your first response should be to take whatever measures needed to protect yourself and your welfare. This may mean a visit to the hospital and a report to the police or campus security.
A rape or assault may leave visible or forensic evidence, and while preserving evidence may be the last thing on your mind in the aftermath of an attack, if you are able to go to a sexual assault referral centre (SARC), they should be able to provide specialist medical and forensic services free of charge for anyone who has been raped or sexually assaulted. You can find a SARC near you here: https://www.nhs.uk/live-well/sexual-health/help-after-rape-and-sexual-assault/. If you make a police report they will usually refer you to a SARC. It is important to preserve evidence as soon as possible after the incident.
After the immediate aftermath, there are various options open to you in addition to or instead of making a formal complaint to the police. Alternatively, you may have experienced discrimination or harassment that does not amount to a crime, and in this situation too there are options open to you which do not involve reporting the misconduct to the police.
This paper explores those options:
- Reporting the misconduct to your university or higher education institution (HEI).
- Reporting your HEI to the Office of the Independent Adjudicator for Higher Education (OIA);
- Bringing a judicial review of the HEI’s decision;
- Bringing a legal claim for compensation or declaration against your HEI or your assailant.
Reporting the misconduct to your HEI
If your assailant is a fellow student or staff member, you can report them to your HEI, since their conduct will be a breach of the student or staff code of conduct/discipline. An HEI has the power to impose a range of sanctions on a student or staff member which has breached its conduct or disciplinary code of conduct, including suspension, exclusion or dismissal, and campus access and contact restrictions. It can also provide a range of accommodations to victims of misconduct, for example with respect to taking exams, intermission or providing counselling.
Some people feel strongly about reporting misconduct to their HEI, because they fear a repeat of the misconduct, either towards themselves or others, or because they want the incident formally acknowledged and some action taken by their HEI.
There is currently no uniform and consistent approach adopted by HEIs for handling complaints of misconduct. However, they should all have some process in place, and this can usually be found by looking at the HEI’s bullying and harassment policies (often called a ‘Dignity and Respect Policy’) and students’ complaints procedure. Again, HEIs differ in how well they publicise these policies and procedures, but they are usually available on the HEI’s website, and you may get practical guidance from your student union or the HEI’s office for student support.
HEI complaints processes will usually include an investigation by an independent investigator (either a staff member from a different department or someone external to the HEI), leading to an investigation report, which is submitted to a panel or decision-maker for consideration. The panel/decision-maker will then sometimes hold a hearing and come to a decision about the charges and whether any sanctions should be imposed. The outcome should then be relayed to you in a letter, giving you the right to seek a review/appeal within a certain number of days.
You may find that your complaint is dealt with carefully, quickly and with sensitivity by your HEI. However, there may be situations (and these have been covered recently in the national press), where you feel that your HEI has let you down, for example, by:
- failing to investigate your complaint thoroughly;
- failing to make reasonable findings;
- failing to keep you informed about the process;
- failing to impose precautionary or final sanctions;
- imposing restrictions on you as a condition of taking any action;
- disclosing your private data to third parties or your assailant unnecessarily and without your consent;
- according you fewer rights in the process than the person you have complained about;
- ‘settling’ or disposing of your complaint via an agreement with your assailant without seeking your agreement or consent;
- failing to give you a right of review/appeal, etc.
If this is the case, you do not have to let the matter drop, you have a few avenues to pursue your complaint further.
Reporting your HEI to the OIA
At the end of the HEI’s internal process, if your HEI is a member of the OIA’s scheme (as all HEIs with degree awarding powers will be) it should give you a Completion of Procedures letter. The outcome letter or review outcome letter is often stated to be a ‘Completion of Procedures letter’. If and once you have received this you are allowed to make a complaint to the OIA about the way your HEI handled your complaint. If you do not receive a Completion of Procedures letter you can complain about that to the OIA too.
Complaints to the OIA must be made within 12 months of the date of your Completion of Procedures letter.
Although the OIA has no power to force a University to comply with its findings and some issues are outside its remit, such as requesting disciplinary proceedings against a member of staff, it can still make recommendations to the University. Recommendations include offering an apology, re-running a process which was flawed or offering a fresh assessment opportunity. If the HEI fails to comply with the recommendations, non-compliance may be reported to the OIA board, published in the OIA Annual Report, in the OIA Annual Statements and elsewhere in the interim. The OIA’s power to implement its recommendations is limited to shaming the HEI into compliance, and relies on their wish to remain in good standing.
For more information on this process please see the OIA website: https://www.oiahe.org.uk/students/can-you-complain-to-us/
Seeking a judicial review of your HEI’s decision
If you have been affected by a specific decision of your HEI, and you consider their decision to be unreasonable; to be unlawful or outside the range of decisions that the HEI was empowered to make (by its own or external rules); or to have been arrived at in a procedurally improper way, you can apply to the High Court for permission to seek a judicial review of the decision.
You must make this application within three months of the decision.
If the court agrees that the decision was improper for any of these reasons, then it has the power to overturn the HEI’s original decision and demand that the HEI re-consider it, in light of the court’s own reasoning and decision.
The court can also order that compensation be paid to the judicial review applicant, but the main purpose of a judicial review is to consider the decision and determine whether it was valid and lawful.
Taking legal action for compensation
You do not have to report the misconduct to your HEI first in order to bring a legal claim seeking damages for injuries caused by sexual misconduct. Nor do you have to make a complaint about your HEI to the OIA or seek a judicial review before bringing a legal claim for compensation, and if you do, you may lose your opportunity to bring a legal claim for damages since these claims must be brought within a certain period after the misconduct, sometimes as soon as within three months.
There are various legal claims that you may be able to bring, the most obvious of which are:
Discrimination, sexual or gender-based harassment or victimisation
Students or HEI employees are protected by the Equality Act 2010 (EA) from being discriminated against, harassed or victimised (subjected to retaliation), in their education or their work. The extent of protection depends on who committed the sexual misconduct.
- Harassment is unwanted behaviour related to a ‘protected characteristic’ (sex, race, disability, age, sexual orientation, gender reassignment, religion or belief, marriage and civil partnership, pregnancy and maternity) that has the purpose or effect of ‘violating your dignity’ or ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’ for you. (EA, s. 26(1)). This effect does not need to be intentional, so long as it has this effect on you. But your reaction in feeling this way must be reasonable in all the circumstances. It is also harassment if you are treated less favourably by someone because you submitted to or rejected their unwanted conduct.
- Sexual harassment is defined in the same way except that the unwanted behaviour is of a sexual nature. (EA, s. 26(2)).
- Discrimination occurs where you are treated less favourably by someone than that person treats others because of a ‘protected characteristic’. (EA, s. 13)(note that slightly different rules apply depending on the ‘protected characteristic).
- Victimisation occurs when you are subjected to some form of detriment, for example denied access to a building or removed from a course, because you have done a ‘protected act’ or the person subjecting you the detriment thinks you have or may do a ‘protected act’. (EA, s.27). A ‘protected act’ includes any of the following: bringing legal proceedings for breach of the EA; giving evidence or information in connection with a claim under the EA; doing anything else in connection with the EA; or making an allegation (implied or express) that someone else has contravened the EA.
Who is the EA claim against?
If the perpetrator is a staff member, and the misconduct happened in the course of that person’s employment, for example during a tutorial or while seeking research or course advice or after rejecting sexual advances in those situations, the HEI will usually be responsible for the staff member’s conduct and so you may be able to bring a claim against the staff member and the HEI for the misconduct, under the EA.
If the perpetrator is a student, the HEI is not likely to be responsible for their misconduct in the same way, however the HEI may be liable for ignoring or mishandling your complaint or for subjecting you to a detriment after you have made a complaint. In the latter situation, you would have a victimisation claim against your HEI; in the former you may have a discrimination or harassment claim against your HEI. If the HEI generally allows a culture to pervade campus in which women feel unsafe or excluded from educational activities, that also may amount to discrimination or harassment, allowing you to bring a claim against your HEI if you suffered because of that culture.
Brining a claim as an employee or student: different lime limits
There are different procedures to follow if you bring a claim as a student or as an employee, and if you are both then you will need to consider carefully whether the misconduct complained of caused detriments to your education or your work situation before deciding whether to bring the claim as a student or employee. There are a number of issues to consider in making this choice, and so you should seek advice if you find yourself in this situation.
The most obvious differences are the timeframes in which to bring the claim and the court which will decide the claim.
Employees (or former employees) must normally bring their claims within three months of the misconduct complained of; while a student has six months. Employees must file their claim as a complaint with ACAS under its Early Conciliation scheme, and if the complaint is not settled under the scheme, must then issue a claim in the employment tribunal. Students must issue their claims in county court.
Stalking and criminal harassment
If the harassment you have experienced is akin to stalking or involves at least two incidents of emailing, bullying and threatening online, verbal abuse, unwanted phone calls, letters or visits, you may have a civil claim for damages under the Protection from Harassment Act 1997 (PHA). The same conduct also constitutes a criminal offence, so you could also report it to the police (and campus security), and it would usually be wise to do so, especially if the harassment is ongoing.
The civil claim gives you the right to seek compensation from your harasser (or the HEI if the harasser is a member of staff and the harassment occurred in the course of their employment) for the stress and anxiety caused by your harasser, as well as an injunction to stop the harassment. The perpetrator could be another student, tutor or a landlord who is providing you with residential student accommodation.
Damages and compensation for crimes
As well as criminal harassment under the PHA, there are a range of other crimes that may have been committed when someone is subjected to sexual violence, including rape, sexual assault, common law assault and battery. These can be reported to the police, who will then decide whether or not to bring a charge and prosecute the perpetrator. The primary objective of a prosecution is to secure a conviction and have a proportionate penalty imposed on the perpetrator, but not to seek compensation for the victim.
If you are a victim of crime who has suffered an injury, you can seek compensation, however, by bringing a civil claim for damages against the perpetrator (or their employer, if the crime was committed in the course of employment). You have three years to bring a civil claim for damages related to a physical or psychiatric injury, although it is usually best to bring the claim or at least seek advice as soon as possible after the event.
Victims of violent crimes may also seek compensation from the state by filing a clam with the Criminal Injuries Compensation Authority (CICA). The time limit for making a CICA claim is within two years from the date of the incident. Please see the CICA website for further information and guidance: https://www.gov.uk/government/organisations/criminal-injuries-compensation-authority
Duty of care/breach of contract
Your HEI owes you a duty of care both through its employees and itself as an institution to protect your health, safety and well-being against the foreseeable risk of harm and resulting loss. This arises under common law but also under your student contract. This contract usually states that the HEI agrees to provide you with the education provided by your course and surrounding experiences that enrich this. If you have suffered mental or physical injury as a result of misconduct and the way the HEI has handled your complaint or provided an environment that seemed to condone or allow the misconduct to take place, then you may be able to bring a claim for negligence or breach of contract.
The extent of this duty and whether a particular act by your HEI amounts to a breach of the duty will depend on your specific circumstances, and it would be wise for you to seek advice about your own situation.
Published January 2020