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Good Morning! We're busy listening to the @ProtectED_HEI webinar on good practice in addressing sexual misconduct, starring @GeorginaCLee! https://www.protect-ed.org/event-details/safeguarding-the-student-experience
We recently produced our sector guidance for higher education institutions processing student complaint, in partnership with law firm McAllister Olivarius ( @AnnOlivarius), and @GeorginaCLee made a huge contribution to that. https://1752group.com/sector-guidance/
. @GeorginaCLee starts by telling us how MCO became involved early on in staff-to-student sexual misconduct cases. If you get on the wrong side of your supervisor as a PhD student, that can have a devastating impact on your ability to break into the world of academia.
There are some common themes that occur in complaints of sexual misconduct, which in some ways makes it easier to deal with. For example, when receiving a complaint that a well-meaning officer deems as credible and serious, then they will want to instigate a disciplinary process.
...but if you go straight to that process, then the complainant is pushed out of the picture and reduced to the role of a witness. A classic defence tactic is to discredit that witness, yet they have no rights to see evidence put in to discredit them. They have no protections.
At @1752group, we find that, more often than not, the perpetrator walks away, leaving the complainant wondering what happened.
Asking how the sector guidance fits in with current advice: Current guidance from Pincent Masons and UUK has some great points, but it comes down to saying "treat them fairly!". It doesn't tell universities *how* to treat them fairly. This is the vacuum we are trying to fill.
Why did we focus on staff-to-student? This was the expertise of the @1752Group and also a focus of MCO, dealing on a daily basis with students who feel they have been treated unfairly compared to a staff member. We hope that our principles can be rolled out to cover a wider remit
With student-to-student misconduct, for example, complaints are put down a student complaints procedure. One complaints body dealing with both students. The frameworks dealing with staff-to-student are arguably more complex as it involves two processes in some cases.
"I have a lot of views on non-disclosure agreements" says @GeorginaCLee. So do we!
NDAs typically make sense in the context of trade secrets. But there is an oddity in universities where they impose an NDA in exchange for the university doing something about a complaint. But your complaint is not a trade secret! It is wrong as a matter of contract law.
Critically though, it almost doesn't matter if it is not legally enforceable for an NDA to have a huge impact. If they are being told to keep quiet, often, they will do exactly that, being afraid to even seek support from family, a therapist or an academic mentor.
. @GeorginaCLee doesn't believe in banning them entirely. NDA's can sometimes be useful. Maybe if everyone comes round the table and agrees they want to sign them and move on, then okay. But often, they are just used lazily, to make things easier for universities, and overused.
Are people listening? "It comes in waves... There was a ground-shift post-Weinstein, even in the legal profession. Judges have pointed out that NDAs are not necessarily enforceable. I feel, in the last year, the power of GDPR is trumping that move towards transparency...
The great shame of GDPR is that it was brought in to protect the data and privacy rights of the individual but it is being used by institutions to silence once again."
On anonymous reporting such as the Callisto app in the US ( https://mycallisto.org ): it would be good to have that in the UK but it's not clear if it would be allowed under local data laws.
Anonymous reporting is important as people are often afraid of retaliation and victim blaming. They are afraid that nothing will happen (see today's article on vanishingly small conviction rates in the criminal system: https://www.bbc.co.uk/news/uk-48095118).
Anonymous reporting is very important from a welfare perspective but also important for universities to track trends, and gain some insight into what is happening on campus.
But if there is a serial sexual predator on campus, an institution cannot deal with that individual based only on an anonymous complaint. You need to have a complainant willing to put their own name on a report, or name the perpetrator. It cannot be entirely anonymous.
Anonymous reporting therefore has a limit, but is a stepping stone to a formal complaint. Anonymous reports should still be used within a disciplinary process though, as when someone does come forward formally, you have a bank of legacy complaints to show the pattern.
