First published on The Fifth Column, 2/10/17.
Students, sexual assault survivors and campaigners in the USA are riled up, and rightfully so: Education Secretary Betsy DeVos last week rescinded Obama-era guidance on universities’ duties to deal with campus sexual assault. But just because there’s a relative lack of public debate on the issue in Britain, doesn’t mean it’s not happening or that British universities and colleges are dealing well with campus sexual assault.
Let’s take a look at the legal situation in the USA first, then compare it to the UK.
The ‘Dear Colleague’ guidance
The 2011 guidance, known as the ‘Dear Colleague’ letter, didn’t create new responsibilities for colleges. It simply stated what they had to do in order to comply with Title IX (a law regarding gender discrimination in educational institutions which case law has held includes investigating sex crimes). Prior to ‘Dear Colleague’, many universities simply disregarded Title IX and ignored survivors, refusing to take reports of the incidents at all. The situation didn’t suddenly turn rosy afterwards, either- not all universities have systems for reporting sexual violence, and it’s easy enough for a university to claim there isn’t enough evidence. But empowering students to know their rights made it easier for them to report and follow up their cases instead of being told ‘We don’t deal with that.’ DeVos has turned the clock back to 2011.
DeVos’ current interim guidance
Universities used to use the USA’s civil court standard, the ‘preponderance of evidence’ (in the UK, that’s the ‘balance of probabilities’). Now, according to DeVos’ new interim guidelines, university administrators can choose between that standard, or the higher standard used in criminal courts. Let’s think about that for a minute. Why do student rape victims choose to report to their university? Usually, it’s because they’ve already reported to the police but the case wasn’t taken to court due to lack of evidence. Other reasons are that they don’t want the rapist to be jailed (most sexual assault victims in the US and UK know their assailant, especially in the case of campus sexual assault), or they don’t want to go through the added trauma of a court case that’ll take up most of their time at university, and instead choose to rely on their university for protection.
Most rape cases don’t reach court and most accused who are tried, are acquitted. (Universities usually aren’t allowed to investigate if the police are investigating, due to concerns of compromising the police investigation, meaning that all campus sexual assault cases were rejected or not reported to police).
In these circumstances, a student cannot reasonably be expected- especially without access to forensic science testing and CCTV footage- to prove that they were raped to a criminal court standard. This requirement is even more cruel to students who have already been rejected by the criminal courts on the basis that their evidence isn’t up to that standard. It’s telling these victims that any kind of recognition of their trauma or sense of justice is impossible. Universities have realised this- some had already abandoned the criminal standard pre-2011. This raises the possibility that DeVos’ interim guidelines are actually pushing the US back even further than the Noughties in terms of women’s rights and campus safety.
According to Abbey Childs, an advocacy organisation founder and campus rape survivor, the provision of residency changes and no-contact orders to protect victims from their rapists rests on universities’ ability to use the civil standard. By removing it, DeVos is removing survivors’ safety. Rapists will find it even easier to get away with their crimes, as expulsion and suspension will also be off the table.While it’s important to recognise the reality that, on campus as well as off it, most perpetrators are male and most victims female, it’s equally important to note that the new guidelines affect male victims just as badly.
Many Americans are angry with DeVos. But the situation in the US is still better than it is in the UK. US campus rape survivors can sue universities under Title IX. Their universities know they may face real legal consequences if they mishandle sexual assault complaints. British campus rape victims have no statutory protection. We don’t have any equivalent of Title IX, and no education laws more generally. Without national guidelines, students have no legal rights if they’re sexually assaulted on campus. Universities can literally do nothing, and even elite universities often do just that. While Oxford University has been subject to a legal challenge, its policy still allows it to avoid dealing with sexual assaultcomplaints. In 2014 Oxford reportedly did deal with a rape of an unconscious student- by giving the rapist “a minor reprimand”.
It’s not that campus sexual assault is less of a problem in UK. One in three female students and one in eight male students have been sexually assaulted at UK universities. It’s just that- unlike the US- there’s no law; so very few court cases; so no news- so no debate.
The Zellick guidance
The 1994 Zellick guidelines place no statutory duty on universities to investigate sexual offences. Instead, they suggest telling students to call the police. However, we now know that- on and off campus- rapists are usually known to their victims, most victims don’t report to the police, most reported rapes don’t reach trial, and those that do tend to result in acquittal. Therefore, the Zellick guidance, while possibly relevant to cases with strong evidence, and rare cases of stranger rape, isn’t suitable for what we now know about sexual assault. The Zellick guidelines were reviewed in 2016.
The 2016 guidance
The new guidelines, which pertain to all types of student crimes (not just sexual assault), suggest using the UK civil standard of the ‘balance of probabilities’ in ascertaining guilt. They are a significant improvement on Zellick. The new guidelines go far beyond merely telling victims to report to the police and encompass all of a victim’s (and accused’s) needs including mental health, safety, rights during the disciplinary process and dealing with the aftermath of a trial. Having a clear reporting mechanism, ensuring victims are supported to continue their education and (in cases of sexual violence) referring to external counselling agencies is recommended. However, these guidelines are also not statutory. Universities which fail to abide by them face no consequences.
Legal action against universities
The only way to ensure a UK university or college deals with sexual assault is to appeal a decision of no action or a finding that a complaint is not upheld. However, this is only possible if the university has accepted the complaint in the first place (some British universities don’t even take sexual assault reports) and where the disciplinary system allows appeals. As there are no statutory instruments, universities can only be sued under normal civil law. In Scotland, a delict case for causing emotional harm could be brought (this would be called ‘torts’ in England). Even then, universities cannot be legally compelled to deal with rape complaints. They can only be sued after the fact for causing harm by ignoring or mishandling complaints.
British civil suits are more likely to fail and more difficult to litigate, due to the absence of a clear Title IX statutory duty. All students can argue on is the university’s failure of its basic duty of care. Add to this the fact that all civil cases are long and expensive, and students are very unlikely to be able to bring them (less chance of winning a case means a greater likelihood that the student has to pay all the legal fees, and a much lower probability of a lawyer doing the case on a no win no fee basis). Universities know this and therefore there is little motivation for them to change. The cycle of few civil suits, little press coverage and no awareness of the issue of campus sexual assault seems set to continue.