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The Office for Students (OfS), the regulatory body for all of English higher education, recently consulted on proposals to regulate how universities respond to and prevent sexual misconduct and harassment. Unfortunately many students in higher education encounter experiences of unacceptable behaviour such as bullying, harassment and sexual misconduct. In fact, statistics show that students may be more vulnerable to experiencing these behaviours than people in other occupational groups.

We believe that you should be free to study, build communities, have fun and make the most out of their university experience whilst feeling safe and supported, and that universities have a big role to play in ensuring that their campuses and student communities are inclusive and safe.

To ensure that your voices and opinions are heard at a national level, we responded to the consultation. We said that:

  • OfS should regulate universities response to tackling sexual misconduct and harassment to ensure consistency, transparency and accountability across the sector
  • Students should be able to access all relevant information regarding support services, reporting and disciplinary procedures in one place, and that information should be clear and accessible
  • Active Bystander and consent training should be a core part of the student experience to ensure that all students feel confident to intervene safely if they witness unacceptable behaviours, what behaviours are unacceptable and how to access support
  • Universities should not be allowed to silence students through the use of non-disclosure agreements or overbearing confidentiality clauses
  • Relationships between staff and students should be regulated - however, policies should focus on prevention and support rather than being purely punitive in nature
  • Universities will need to invest significantly more resource in areas such as student support, casework and disciplinary teams to ensure students are properly supported

Our response

Q1a: Do you agree or disagree with the proposal to introduce a new general ongoing condition of registration relating to harassment and sexual misconduct? Please give reasons for your answer.

We agree that OfS should introduce a new general ongoing condition of registration. Based on the evidence provided by OfS, is it clear that the current statement of expectations has proven to be insufficient in effectively tackling harassment and sexual misconduct.

Currently, harassment and sexual misconduct represent significant issues in the sector: rates of sexual violence in universities are the highest in society (Office of National Statistics, 2020), with 62% of students and graduates reporting that they experienced sexual violence whilst at UK universities (Revolt, 2018), and research by the EHRC (2019) found that almost a quarter of students from minority ethnic backgrounds reported experiencing racial harassment. Introducing a new condition of registration that works to ensure that students are safe from harassment and sexual misconduct is therefore necessary for a high-quality higher education experience.

Whilst we do not believe that the new condition of registration will ‘solve’ these issues, we do see its introduction as an important step towards informing culture change in the sector through directly addressing the current discrepancies across the sector and ensuring that all universities are actively tackling misconduct and violence within their institutions. There is vast academic literature supporting the fact that clear and consistent policies and procedures relating to misconduct decreases the likelihood of sexual misconduct and harassment occurring, both within business settings and educational settings (e.g. Fitzgerald et al. 1997, Williams et al. 1999, Glomb et al. 1997, NASEM 2018, Bradford and Crema 2022).

To support the proposed conditions, the OfS should commit to publishing good-practice guidance and commissioning training to support HE providers  to fulfil their regulatory requirements. We would also favour incentives for universities to go beyond the minimum expectations.  

Q2a: Do you agree or disagree that the definition of harassment in proposed condition E6 should have the meaning given in section 26 of the Equality Act 2010 and section 1 of the Protection from Harassment Act 1997? Please give reasons for your answer.

Primarily, we believe that clear and consistent definitions are valuable; the use of common terms and definitions provides individuals with a basis for common understanding which aids transparency and communication between parties.

For the purposes of the consultation, we agree that so long as definitions are applied consistently, the definition of harassment should follow the Equality Act 2010 wording. Given that there are discrepancies between the two Acts regarding what constitutes harassment – chiefly whether the conduct must relate to a particular protected characteristic or not – OfS should not move to implement the definition provided in section one of the Protection from Harassment Act 1997. Furthermore, given that HE providers  have been explicitly told to avoid using legal definitions/criminal language, we do not feel it is appropriate to make this switch to avoid confusion between disciplinary and criminal processes.

Q3a: Do you agree or disagree that the definition of sexual misconduct in proposed condition E6 should mean any unwanted or attempted unwanted conduct of a sexual nature and include but not be limited to the definition of ‘sexual harassment’ contained in section 26(2) of the Equality Act 2010 and rape and assault as defined by the Sexual Offenses Act 2003? Please give reasons for your answer.

We agree with the definitions provided by the Equality Act 2021 and section one of the Protection from Harassment Act 1997, for the reasons already outlined above under question 2(a).

We would also like to see the inclusion of domestic abuse. Whilst we recognise that OfS are concerned that this will place further burden on HE providers, we feel that it is necessary given that students are the occupational group in the UK with the highest likelihood of experiencing domestic abuse (OfS, 2020). We therefore believe that adequate safeguarding measures must be introduced.

Q4a: Do you agree or disagree with the proposal that a provider should create a single document which comprehensively sets out policies and procedures on subject matter relating to incidents of harassment and sexual misconduct, and prominently publish that document in the manner we are proposing? Please give reasons for your answer.

We agree that there should either be a single document or a single source of information (such as a dedicated webpage) that is prominently published and available to potential, current, and former students, and staff members. All members of the university community should be provided with a clear and easy to navigate understanding of their institution’s approach. We also feel that the process of producing a single document/source will give institutions the opportunity to reflect on their current policies, procedures and support provisions, ensuring that there are clear and consistent reporting and support procedures and ensuring that these are easily understandable to students.

Our main concern, however, is that any information supplied to students is useful and accessible, particularly given that institutional staff drafting these documents will likely be those already involved in this area of work and therefore may not be able to easily identify where wording or terminology may be unclear and inaccessible to students who are not already familiar with the institution’s procedures. We would therefore encourage institutions to create these documents in collaboration with students and their representative bodies, potentially through recruiting students to evaluate their document for readability and accessibility prior to publishing, as well as partnering up with student representatives and students’ unions to promote them to the wider student body.

Q5a: Do you agree or disagree with the proposal that minimum content requirements should be specified for the single document we propose a provider should maintain? Please give reasons for your answer.

We agree with the proposal of minimum content requirements on the basis that HE providers will be provided with increased resource. Clear guidance on what should be included in these documents is vital for consistency and transparency, as well as aiding with accountability and quality control both within and across institutions.

As laid out in our response to question 8a, if the resources do not match the content requirements, then some providers will struggle to comply with all the conditions.

Q6a: Do you agree or disagree with the minimum content requirements proposed for the single document we propose a provider should maintain? Please give reasons for your answer.

We agree with the minimum content requirements proposed for the single document. Clear guidance on what should be included in these documents is vital for consistency and transparency, as well as aiding with accountability and quality control both within and across institutions. Whilst recognising that HE providers will encounter different challenges at different times, we feel that a set of minimum content requirements is necessary to support tangible change across the sector.

We particularly welcome the proposals around training for students and staff. We feel strongly that bystander intervention training should be core and provides huge value to work preventing harassment and misconduct. Evaluation of existing bystander intervention programmes has shown that they can have a variety of positive outcomes on students’ attitudes, beliefs and behaviours, including:

  • increased intent to help those who have been targeted (Katz and Moore 2013)
  • increased confidence to helpfully intervene when witnessing unacceptable behaviour (Ibid)
  • increased knowledge of intervention strategies (Kettrey, Marx and Tanner-Smith 2019)
  • increased self-reported bystander helping behaviours (Katz and Moore 2013)
  • increased pro-social attitudes (Jouriles, Krauss, Banyard and McDonald 2017)
  • decreased rape-supporting attitudes and acceptance of rape-myths (Katz and Moore 2013)

Moreover, campuses where bystander intervention training has been implemented have shown reduced rates of violence victimisation and violence perpetration by males compared to campuses that have not implemented training.   Bystander intervention programmes can thus have a positive impact on campus culture by changing students’ attitudes and beliefs and decreasing the prevalence of incidents of violence.

At Students’ Union UCL we run the largest active bystander programme in the UK. We have trained over 35,000 students and have a comprehensive peer-to-peer programme that includes a self-guided online module, interactive in-person workshops and bespoke training provided for specific departments. 78% of our students agreed that the online module was useful and 96% agreed that they understood what constitutes as bullying, harassment, and discrimination after completing the online module. After the live workshop, 86% of students agreed that they felt more prepared to intervene after attending the workshop and 82% found it useful. International students were significantly more likely that home students to feel more prepared to intervene after attending - this is really important given that research from LSE (2021) found that international students are more likely to be uncomfortable asking for support in the handling of sexual misconduct and violence incidents than their home counterparts. Therefore, mandatory training for students and staff would be beneficial and a vital component of any preventative work.

We strongly believe that students’ unions are best placed to provide such interventions and training.  Students’ unions are led by students and independent of the institution, which supplement the peer-based approach and concerns with conflation into more formal reporting processes.  Students’ unions should be supported and adequately resourced by their institution to enable their work in this area. 

Q7a: Do you agree or disagree with the proposal for content principles for the single document we propose a provider should maintain? Please give reasons for your answer.

We agree with the proposed content principles for the single document. It is important that institutions are able to include additional information where relevant, however it is important to avoid any information that may be contradictory or confusing, or conflict with the minimum content requirements.

Q8a: Do you agree or disagree with the proposal that a provider should be required to have the capacity and resources necessary to facilitate compliance with this condition? Please give reasons for your answer.

We agree that a provider should be required to have the capacity and resources necessary to facilitate compliance. A lack of resource and capacity dedicated to departments within HE providers that are contributing to this work (such as student support, EDI and case work/disciplinary teams) has blocked meaningful progress in this area for too long, with many institutions feeling unable to make adequate progress (e.g. towards compliance with the statement of expectations) because they are not allocated sufficient funding by university management.

Increased resource would be particularly beneficial within casework, disciplinary and student support departments. Over the last decade institutions have been working to raise awareness amongst the student and staff body of different kinds of unacceptable behaviour through initiatives such as Active Bystander and consent training and campaigns such as Erase the Grey and Zero Tolerance, and many have brought in more easily accessible reporting procedures. This has led to increases in reporting across the sector and, crucially, we have seen an increase in the complexity of cases as well as the quantity. We have identified a number of key issues in this area that would either be resolved or improved with increased resource and capacity:

  • Disciplinary processes that take longer than several months – sometimes even spanning across academic years – to complete. This leaves vulnerable students, both complainants and respondents, with a huge amount of uncertainty, often exacerbating mental health difficulties, whilst also trying to complete their studies and engage in wider university life.
  • A lack of specialist, in-depth and trauma-informed training for those on disciplinary panels that are dealing with issues of sexual misconduct and violence. Currently discrepancies in training and understanding of panel members can lead to unfair outcomes or processes, particularly in complex cases.
  • A lack of capacity and resource in case work, disciplinary and support services means that often students reporting experiences of misconduct may have to speak to multiple members of staff when seeking support and guidance. Particularly if a disciplinary case is ongoing for multiple months, consistent support is crucial for the wellbeing of all students involved. This type of fragmented support is detrimental to individuals who have experienced trauma and often means a victim is having to retell their experiences multiple times, which can be re-traumatising.

We would propose that under this condition OfS looks to best practice that already exists in the sector and either expands this condition to be more specific, or creates incentives for institutions to comply with additional ‘best practice’ guidance. Specifically, we would propose that as part of a capacity and resource condition each institution should have dedicated staff members who are able to support students throughout the disciplinary process (and also provide support for those who do not wish to report), and that this is a dedicated role as opposed to additional workload of existing counselling or support staff. Cambridge University, for example, has a University Sexual Assault and Harassment Advisor (SAHA), a specialist advisor based within the counselling service who can provide emotional and pastoral support to victims, as well as practical support such as helping guide and support them through any disciplinary processes. The SAHA can help explain more complex parts of the disciplinary procedure, accompany students to meetings and panels, as well advocate for or signpost the student to other services if required. Crucially, the SAHA is a consistent source of support for a student, potentially supporting a student all the way through a disciplinary procedure instead of the student having to seek support from multiple staff members. Institutions such as Durham have similar roles.

We feel this is perhaps the most important condition; without adequate capacity and resource many institutions would be unable to comply with the other conditions. It is important to note that many institutions, particularly smaller and specialist institutions, will struggle to budget for the substantial conditions proposed within the three-month proposed timeline.

Q9a: Do you agree or disagree with the proposal that a provider should be required to comply with the proposed condition in a manner that is consistent with the proposed freedom of speech principles? Please give reasons for your answer.

We feel that existing duties HE providers are subject to is sufficient to safeguard freedom of speech. The definition of harassment under the Equality Act, for example, already has an objective test of reasonableness. Introducing additional regulatory requirements surrounding freedom of speech would further increase the regulatory burden on institutions and does not seem necessary in this case given existing safeguards to protect freedom of speech. Furthermore, we are concerned that currently students’ unions would be regulated by OfS on freedom of speech (under the new Higher Education bill) but not on sexual harassment and misconduct, despite the fact that a single case could easily fall under both duties (i.e. a complainant may be making a harassment complaint whilst the respondent is making a freedom of speech complaint about the same event/case). This seems to go against the principles OfS have set out around ensuring clear, consistent procedures for students who have experienced harassment or misconduct, as well as place HE providers under potentially unmanageable regulatory burden.

Q10a: Do you agree or disagree with the proposal to prohibit a provider from using provisions which have the effect of preventing or restricting the disclosure of information about incidents relating to harassment or sexual misconduct? Please give reasons for your answer.

We agree with the proposal to prohibit providers from using non-disclosure agreements (NDAs). Within the sector, the widespread use of NDAs has allowed both individual perpetrators and universities to escape accountability, thereby preventing both current and prospective staff and students from understanding the scale of the issue at their institution. A BBC inquiry published in February 2020 found that over 300 NDAs were used in the resolution of student grievances between 2016 and 2020, with the true scale likely significantly greater. If OfS and HE providers are serious about tackling harassment and sexual misconduct, the use of NDAs must be prohibited; victims/ survivors of abuse must never be bought or bullied into silence to protect the reputation of an institution.

To ensure protection for both the reporting and accused parties, we would welcome guidance regarding confidentiality clauses. Institutions that have not or do not use NDAs have in the past still used overbearing confidentiality clauses that limit students’ rights to speak about their experiences and can prevent them from accessing support. The level of confidentiality required in such cases should be proportionate and on a case by case basis as opposed to blanket confidentiality that arguably causes similar harm to that of a legal NDA.

Q11a: Assuming that the OfS introduces a new condition of registration E6 (subject to the outcome of this consultation), which of the following options discussed in Proposal F do you think should be included in condition E6:

Question B as proposed (prohibiting personal relationships between students and relevant staff members)

Q11b: Please give reasons for your answer in question 11a above.

Intimate, romantic or otherwise inappropriate relationships between students and relevant staff members have the potential for abuse of power. UCL currently implements similar constraints on staff-student relationships where there is a direct teaching or supervision capacity, including PhD students who are supervising other students. UCL’s policy, however, does not cover staff with management or support responsibilities over students. We are in support of the condition including these types of staff, particularly those who have pastoral responsibilities over a student. However, if OfS does not adopt the full proposal we would strongly encourage them to implement at minimum a condition of a ban on staff-student relationships where there is direct teaching or supervision.

Research shows that there is an inherent power imbalance between staff and students that can lead to potential abuses of power, even within seemingly consensual relationships. For example, recent qualitative research with students who had attempted to report staff sexual misconduct to their institution in the UK reported experiences of ‘grooming’ and ‘boundary-blurring’ behaviours from staff towards students. That is, behaviours that cross professional boundaries where there is an unequal distribution of power (Bull and Page, 2021). It is also important to note that even if a relationship is consensual and both parties are safe and happy, staff-student relationships have broader impacts on the staff-student academic community. A report in 2018 found that 80% of students would be very or somewhat uncomfortable with staff having sexual or romantic relationships with students (NUS and 1752 Group, 2018). Students who are bystanders to such relationships may worry about exploitation and predatory behaviour by staff, and may also worry about potential favouritism or unequal treatment within their cohort.

We do not feel that option A, a policy of disclosure with a register of relationships, would be sufficient to mitigate potential harm in this area. By opting for a register a relationship must first begin and be initiated to be able to be reported, and this does not necessarily contribute to any type of preventative work. This places the burden on the student to report relationships to their university and, particularly in cases where relationships are non-consensual and a student may already be concerned about potential repercussions, we do not feel that this is an acceptable burden to place on already potentially vulnerable students.

However, it is vital that any policies pertaining to staff-student relationships are primarily preventative and not punitive. Topic experts in the United States, where such policies on staff-student relationships have been commonplace for many years, have expressed concern that punitive policies may actually discourage potential victims from seeking support and help and also may be a “distraction from real problems of gender equality” (NASEM 2018). One researcher stated that “companies can feel good about punishing individual employees for sexual offences while doing little or nothing to address the overarching dynamics of harassment and discrimination that preserve gender hierarchy at work” (Schultz 2003). Furthermore, victims of non-consensual or inappropriate relationships may be discouraged from seeking support or reporting if they fear punitive action against either themselves or the staff member.

It is vital that these policies focus primarily on 1) preventing these relationships from occurring in the first place (and there is vast academic evidence that policies which are well communicated are effective in reducing instances of sexual harassment and violence, e.g. Fitzgerald et al. 1997, Williams et al. 1999, Glomb et al. 1997, Bradford and Crema 2022), and 2) providing pastoral, emotional and practical support for victims if an inappropriate relationship does occur. Punitive measures should be a last resort where there is evidence of inappropriate or harmful behaviour and should not be the primary purpose of such a policy.

Q12c: Do you have any comments about the proposed timeframe for implementing any new condition outlined in this consultation? If so, please explain and provide reasons for your view.

Whilst we agree that it is important to implement the proposed new condition as soon as possible, we do not feel that 3 months is sufficient to implement all of these conditions and would favour a staggered approach. Whilst we recognise that harassment and sexual misconduct in higher education requires prompt action, a staggered implementation will ensure that these conditions are implemented properly.

For many of these conditions it is important that they are implemented properly, that students are involved and consulted with, and that they are not rushed. For example, we would argue that for mandatory training it is more important for the content to be accurate, accessible, trauma-informed and shaped by sector experts and students (which may take longer than 3 months) than it is to have this available immediately. The risk of inaccessible or inaccurate training content, and the risk of poor training delivery leading to it been less engaging for students and potentially feeling more like a tick-box experience for students, is higher than the risk of giving institutions longer to prepare and create an effective programme. At Students’ Union UCL we run the largest active bystander programme in the country, having trained over 35,000 students with a comprehensive programme that includes a self-guided online module, in-person interactive and peer-led workshops, and bespoke training for certain departments. This has taken us 7 years to develop and significant institutional funding.  

We would propose that policy-based conditions (such as a ban on NDAs and staff-student relationships) are feasible to implement in 3 months, whereas activity-based conditions such as training would need longer to deliver successfully. We propose that for activity-based conditions they should be implemented by the next academic year (academic year 2024-25), allowing for providers to pilot and develop content in the interim.  

Q16: Do you have any comments about the potential impact of these proposals on individuals on the basis of their protected characteristics?

Ensuring consistency and transparency across the sector in tackling sexual misconduct and harassment will benefit students with protected characteristics as they are also the most likely groups to experience misconduct and harassment (e.g. NUS and 1752 Group 2018, Bradford and Crema 2022).  


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