Thoughts on the campus “lad culture” task force

News that the Government is setting up a task force to consider the issue of “lad culture” in universities had me feeling, as I often do, rather sorry for the HE sector.  After all, the problems the task force is looking at include much wider societal problems (seemingly starting much younger and continuing into later life) so expecting HE to find a solution to cover the three or four years students spend at universities seems a big ask.  

 

If I were on the task force, there are a number of points I would want it to think about. As you might expect, these are from a legal perspective, and I entirely accept that there will be other, very powerful perspectives at play in this process, which might be considered more important. But to my mind, a sustainable solution to the problem must be built on sound legal principles.

 

The first is to introduce a level of precision into the debate.  The phrase “lad culture” is used to cover a range of behaviour from excessive drinking and “banter” through to serious sexual crimes, with many undesirable actions in between such as catcalling, initiation rites and abuse. This lack of precision is not helpful as the response to these behaviours will be different, ranging from codes of conduct and behavioural change initiatives for some, internal disciplinary action for others and (for reasons I explore below) criminal prosecutions for a few.

 

Having identified the range of behaviours, there needs to be an exploration of which of these need to be the subject of intervention. Some behavior may amount to a crime or clear discrimination and so clearly falls within the “intervention” category.  Other behavior, such as jokes, conversations or communications that are considered by some to be offensive to women, will have to be considered more carefully to insure that an appropriate balance is struck between, for example, qualified Convention and statutory rights to freedom of expression/speech and the right of others not to be harassed (itself qualified by the requirement that the offending behavior must be objectively considered offensive, violating and demeaning as well as subjectively so). There may be other conflicting rights and freedoms to consider along the way. The right to a private and family life may warrant consideration, for example, where off-campus behavior is concerned.

 

The next question is to identify who should be responsible for taking action. In some cases it might benefit from involvement by the student body as a whole. How can the majority of students who do not engage in the activities in question be encouraged to intervene and influence those who do? In other cases, it may be students’ unions. Several “lad culture” cases I have advised on recently have involved student clubs and societies affiliated to students’ unions and there must surely be a case that the primary responsibility for regulating their activities should be the students’ union. To do otherwise would be to deprive student clubs and societies of a good deal of mutually beneficial independence from the university.  There will clearly be other instances where the university is best placed to act through robust and effective use of its disciplinary procedures.  And, in my view, there will be some instances where the conduct needs to be referred to the police or other relevant authorities.

 

Having identified who should act, the big question is what should they do? Some suggestions could include:

 

·       Be more explicit about what behavior is expected and what will not be tolerated. Most student codes of conduct I have seen prohibit sexual harassment, but perhaps the definition needs to be revisited and more needs to be done to publicise the expectations. Student clubs and societies could be obliged to adopt rules of conduct which ensure that action can be taken by the students’ union where appropriate. This could be helpful where what is concerning is the culture of a club or society which may not be satisfactorily addressed by taking disciplinary action against a small number of individual club members. In some of the cases that I have advised on, these clear expectations were absent and that caused difficulties in identifying how individuals should have known to avoid the behavior they were subsequently investigated for. Any form of due process has to start with individuals knowing in advance that if they do certain things, action may be taken against them.

·       Develop better routes for complaints to be made and support to be offered to affected students. Currently most institutions require complaints to be made by individuals directly affected by the conduct complained of, but there may be a benefit in allowing others who have witnessed sexist or misogynistic behavior to raise concerns. As I make clear below, action against individuals will need to observe strict procedural safeguards, and I am not suggesting, as others may, that such third-party concerns should be used as the basis of formal action unless those procedural safeguards can be maintained. But allowing concerns to be raised may allow other action to be taken (e.g. a campaign to discourage certain behavior, or an investigation by a students’ union into whether a club is operating in breach of the required standards of behavior) and may also allow a better understanding of the nature and extent of the problems across the university.

·       Review and improve disciplinary and other investigatory procedures so that they expressly apply to the relevant behaviour and are administered by properly trained panels who are well able to assess the available evidence, follow a legally robust process that protects the rights of both accuser and accused and deliver well reasoned decisions that enable all involved to understand why the outcome of the case was as it was.  A number of the disciplinary cases I have been subsequently asked to advise on seem (whether involving “lad culture” or not) to have failed to deliver these basic legal safeguards, and no sustainable, widely-respected action on “lad culture” will survive badly handled disciplinary processes.

 

One of the most controversial aspects of the work of the task force will undoubtedly be the extent to which universities should take disciplinary action in cases of alleged rape or other serious sexual assault or any other serious criminal conduct, such as attempted murder.  We explored the current legal position in relation to dealing with rape/serious sexual assault in our January and May HE bulletin. I remain to be persuaded that moving to a position where universities rather than the police/CPS investigate would be the positive step that many think it would be, for the following reasons:

 

·       Paucity of evidence. In a number of the cases I have advised on there has been very little evidence on which action could reliably be taken, even on the lower threshold of balance of probabilities. An evidence-based disciplinary process is one of the fundamental procedural safeguards that I don’t see how we can do without.

·       Unwillingness of complainant to participate in the disciplinary process. Again, if a complainant does not wish to give evidence before a disciplinary panel it is difficult to see how the alleged perpetrator can test the evidence against him or her, another vital safeguard in any process of adjudication.

·       The risk of deficient handling of the investigation and/or hearing by inadequately trained staff. Internal disciplinary processes are not analogous to criminal proceedings, nor should they be. They are administered by lay people, who understandably lack the skills to deal with traumatised complainants and sensitive evidence that may require detailed forensic analysis.

·       The inadequacy of sanction. Even if a case overcomes all the hurdles above, the very most that a university can do is expel the student concerned, and there may be circumstances in which disciplinary panels, having listened to mitigation, might decide not to expel. Even if a student is expelled, there may be no impact on his or her ability to move to another institution or into employment. Successful complainants may therefore nonetheless feel deprived of justice. And if attempts are made to publicise or share the fact that a student has been “convicted” of rape in internal proceedings to prevent him or her simply moving elsewhere, the consequence will be an expectation that the internal process needs to be made more robust, probably more legal, and thus more complex and expensive to administer.

 

These are all complaints that have followed when universities in the US have tried to investigate alleged rapes internally in accordance with the requirements of Title IX. There is no reason to expect they will not follow if a similar approach is attempted here. The response to the perceived inadequacies of the criminal legal system’s capacity to investigate allegations of rape should not be to create a parallel, equally inadequate, internal university system.

Smita Jamdar 
Partner and Head of Education
T: 0121 214 0332 
E: smita.jamdar@shma.co.uk
W: www.shma.co.uk

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