The ability of social media campaigns run by movements such as #MeToo, Times Up and Everyone’s Invited to shine a spotlight on sexual abuse in society has been extraordinary, and the impact it has had on the education sector is not far behind. Read on for 10 tips for handling allegations of sexual misconduct and harassment.
Whilst the prevention of sexual abuse and harassment has been at the forefront of the education sectors’ concerns and agendas for many years, the rise in, and intensity of, social media campaigns has sent many Government and education bodies into overdrive.
The Secretary of State for Education announced in March 2021 that a new helpline would be introduced to support potential victims of sexual harassment and abuse in education as part of the Government’s Tackling Child Sexual Abuse Strategy.
In April 2021, Ofsted published plans for a review into safeguarding policies and practices relating to sexual abuse in state and independent schools and colleges. The review will consider whether schools and colleges have appropriate processes in place to enable pupils to report sexual abuse and facilitate the effective handling of them. Unsurprisingly, it will also review whether its current inspection regimes are robust enough to address concerns and promote the welfare of children.
The spotlight has also been shone on Higher Education. A report published by Brook Young People referred to on the Office for Students’ (OfS) website cites that:
- only a quarter of students (25%) who were forced into having sex went on to report it
- nearly half of women (49%) said they were inappropriately touched but only
- 5% reported it
- a quarter of women (26%) were sent unwanted sexually explicit messages but only
- 3% reported it
- 53% of respondents experienced these unwanted sexual behaviours from another student
- 30% of incidents took place on campus
- women were more likely to experience unwanted sexual behaviours than men;
- 49% of women said they had been touched inappropriately compared to 3% of men.
The Office for Students has introduced a Statement of Expectations as to how HE providers are expected to prevent and address sexual harassment and misconduct, which contains seven requirements, including clear communication and embedding of their approach to preventing and addressing sexual harassment and misconduct; ensuring the approach taken is adequate and effective; and, implementing effective staff and student training.
The OfS’s website confirms in its Q&A section that at this time the Statement of Expectations is not connected to conditions of registration and that the OfS will not seek to use its enforcement powers in relation to the statement. However, answers to other questions posed confirms that where the OfS receives a report of harassment or sexual misconduct it may conduct an investigation to determine whether that provider is at increased risk of breach, or has breached, one or more of its existing conditions of registration, for example, the adequacy and effectiveness of the provider’s management and governance arrangements. In response to another question it confirms that as part of its review to update its regulatory requirements relating to consumer protection law, it will consider requirements relating to complaints handling with options for connecting the Statement of Expectations to the requirements expressed in conditions of registration.
So what does this mean for the education sector? All education institutions need to reflect on their processes and procedures regarding sexual abuse, harassment and misconduct. This must include:
- reviewing all policies and procedures – for staff, students, parents, third parties/visitors – and keeping them under regular review
- considering how these policies and procedures are made available to staff, students, parents, third party/visitors – are they readily accessible and adequately bought to the attention of all?
- implementing training to embed the policies and procedures within the institution, and ensuring it is repeated at appropriate intervals and captures all staff and students as necessary
- looking at the ways in which students (and staff) can raise complaints of sexual abuse and considering how processes can be improved – are they clear, accessible, approachable, effective and trusted?
- walking through your procedures for dealing with complaints from start to finish – are they fit for purpose? Construct and apply a scenario – test whether there are shortfalls, ambiguous timings and steps and potential weak points?
- when incidents happen, as they invariably will, apply your policies and processes and test and hone your procedures. In what way are they challenged, are they sufficient in scope to cover the unexpected, what more guidance can be added to assist with their implementation?
- having procedures and processes in place to explain to a reporting student the difference between internal and external (police) investigations and the different implications as to evidence gathering, analysis, burden of proof and outcomes. Ensure the procedure prompts you to ascertain and record whether a reporting student wishes to involve the police, utilise their criminal investigations/processes and understands the impact of their decision on your institution i.e. how it will impact on the internal process. Best practice is that internal disciplinary proceedings are stayed pending the outcome of any criminal investigations albeit that you may need to suspend a student or impose conditions (for instance as to contact with the reporting student, residency etc.) pending the outcome of any criminal investigation
- not overlooking that the reporting student and the responding student have equal rights and should be treated equally. Counselling and any other appropriate support should be offered to both
- keeping both the reporting student and the responding student regularly updated as to status, progress and next steps and provide regular timelines and timeframes for various steps
- reviewing all complaints, considering how they arose, how they were handled and how they were concluded – looking for patterns and trends, common problems and feedback and learning lessons and honing your processes after each one. If necessary amend your policies, processes and procedures.
Reflection should include making sure you have the necessary resources available for when you need them to prevent any log jams in your process. For example, if you are dealing with a potential criminal matter where the student does not want to involve the police you should have:
- a ready source of investigators who have the requisite skills, experience and training in investigating complaints of a sexual nature. An investigation conducted by an investigator without the requisite skills risks exacerbating the distress and harm suffered by the reporting student and compromising your investigation
- access to appropriately trained and experienced individuals who can conduct risk assessments for example, where steps need to be taken before or during an investigation, or where the complaint/concerns raised do not lead to the exclusion/dismissal of the responding person but risks still need to be managed
- a pool of senior executive staff and governors who are trained in dealing with disciplinaries and complaints relating to sexual misconduct. These are very difficult, complex and sensitive matters to deal with and a good understanding of how they should be handled is important.
Finally, don’t forget to check your insurance position to see if you have any cover generally and/or as to legal fees. Your insurers may also have requirements as to how matters are handled.
Birketts LLP are significantly experienced in the handling of such cases. We have a specialist team of investigators, which includes a Barrister who having been at the independent Criminal Bar for more than 20 years, has the appropriate background and training as well as considerable experience in defending and prosecuting serious sexual offending cases.
The content of this article is for general information only. If you require advice on any of the matters referred to in this article, please contact Sara Sayer or another member of Birketts’ Education Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2021.