In a historic day for women's advocates and anti-sexual violence activists, new guidance has been published that will radically overhaul how UK universities respond to campus rape and sexual assault.
Critics say universities in the country have been failing rape and sexual assault survivors for decades. Unlike in the US, where Title IX affords protections under federal law, no specific legislative requirement exists across the pond. Until today, universities operated under a voluntary code when responding to allegations of sexual violence—and that code, known as the Zellick Report, was grossly inadequate.
The Zellick guidelines were laid out in 1994 in response to an incident in which a student acquitted of rape sued the university that suspended him. As a result, the code primarily came about from a desire to protect institutions from potentially expensive litigation. It states that rape and sexual assault should never be investigated internally by university authorities, and that disciplinary action can only be taken if the case was reported to the police, prosecuted, and the verdict of the trial known.
In essence, the problem of campus sexual assault was left entirely in the hands of the criminal justice system—and if it sounds like institutions washing their hands of the issue, it's because it is. If the alleged victim decided that they did not want to file a report (as the majority of women do), or if the police determined that there was insufficient evidence to secure a conviction or even prosecution (very few rape cases ever end up in courtrooms, and far less end in a conviction), then universities had zero obligations towards the complainant.
The Zellick guidelines have been routinely condemned for years: A recent report from the National Union of Students and Rape Crisis called for reform, and Oxford University student Elizabeth Ramey sued her college in 2015, alleging that it had failed to properly investigate her rape. In the past, universities have expelled students for plagiarizing essays or damaging property—but not for raping fellow students.
In response to the criticism, Universities UK—a voluntary organization comprising of all universities in the UK—reviewed the Zellick guidelines. The report promises an industry-wide approach to create a zero-tolerance culture towards sexual violence and harassment. It has also published new guidelines for institutions to deal with rape and serious sexual assault, which will replace Zellick.
Universities must now investigate allegations of rape and sexual assault within institutions, even if the complainant has chosen not to go to police. If a student has been accused of rape, for example, the institution can look at the evidence and determine whether there has been a disciplinary infraction and sanction the individual responsible. While universities will not be able to determine if a criminal offence has taken place, they can judge if the student has violated their disciplinary code. As they aren't arbitrating criminal cases, they don't need to prove an offence took place beyond "all reasonable doubt" (i.e. to criminal standards), only that it more likely than not happened (i.e. to a 51 percent probability.)
"It's really exciting," confirms Alice Irving of the University of Oxford. Irving is a criminal justice expert who teaches sexual consent workshops to students. She's also a rape survivor who has documented her own experience artistically. In 2011, she was raped while still a student at Oxford and was met with resistance and disbelief when she reported her attack—local police minimized her experience, saying it was a case of "sexual regret," not a crime. Irving has advocated for the rights of student victim-survivors since.
I ask about the practicalities of universities investigating students for sexual offences. "They may not be able to make a finding of sexual misconduct, but they might be able to judge another sort of misconduct has taken place," she responds. "It's a lower threshold and will be on a case-by-case judgment. I think that's really important, because the higher threshold in the criminal context is necessary, because we're dealing with public sector punishment."
She explains that, from the point of view of British contract law, the new guidelines are workable: You don't need to prove beyond all reasonable doubt that a breach of contract took place, only that on the balance of probabilities it probably did. "In the same way, if you signed up to university guidelines and breached them, then there are conditions that apply to you."
Not all advocates believe a contractual understanding of the university-student relationship is the right way to go. "The guidelines frame universities as in solely a consumer relationship with students, but they're not," responds Rachel Krys, the co-director of End Violence Against Women. "It's about creating a safe environment where women can get an education. It's not the same as a consumer obligation." Irving agrees: "We shouldn't just understand the field in contractual terms—universities also need to consider the human rights and welfare of their students."
These options just didn't exist for me when I was a student.
Universities UK expects that all institutions will adopt the new guidelines, although they are not legally obliged to do so. Krys would like to see universities take a pro-active, legislation-backed safeguarding approach similar to what schools practice in the UK. "We'd also like to see mechanisms in place to measure how universities are fulfilling these new obligations to students. Something saying, 'If you don't meet this standard, there will be consequences.'"
In Irving's view, additional legislation isn't always a "silver bullet," and structural and systemic change is necessary. However, she does welcome the report recommendation that universities institute precautionary measures while investigating students for disciplinary offences.
"There's the option of suspending someone while an investigation is being carried out," Irving explains. "It's incredibly clear that this isn't meant to be a punishment, but is a precautionary measure to minimize the potential impact on the complainant while being the least possible intrusive option for the defendant." In essence, this means that students wouldn't need to worry about running into their alleged attacker in libraries or lecture halls while a case is ongoing—something that many survivors acknowledge to be profoundly retraumatizing.
The new guidelines are a huge step forward, but some people believe that they don't go far enough. Newly launched advocacy group The 1752 Group is calling on institutions to recognize the damaging potential of student-teacher sexual relationships. "Staff-student sexual harassment in UK universities has until recently remained invisible, because the structures of power within academia mean that very few people who experience harassment report it," says Dr Anna Bull, a spokesperson for the organization. "It is highly risky for students to make complaints of sexual harassment against academic staff, so it is not surprising that they rarely do so. Addressing staff-student sexual harassment is an urgent issue of gender equality."
The hope is that today will mark a sea change in how universities safeguard their students. "These options just didn't exist for me when I was a student," Irving says. "Even just having more information and clearly flagged pathways is so important. If you're not having to fight to figure out what to do in a situation when you've got such low energy, that's a massive help."