RTC Reviews Pinsent Masons Guidelines
Following its 2016 ‘Changing the Culture’ report into sexual misconduct in higher education, UUK issued new guidance for its members. The so-called Pinsent Masons guidelines is a replacement for the 1994 Zellick guidelines. UUK had judged the latter to be outdated in its 2016 report, and worked with the law firm to issue new instructions. As ever, these are not compulsory. They are, however, clear in their message of zero-tolerance for sexual misconduct. The new guidance aims to advise universities on how to handle such allegations, ensuring that both the institutions and their students have adequate support.
One key aspect is that university disciplinary procedures are separate to criminal cases. Therefore, universities cannot issue findings of criminal guilt, and can only impose sanctions for violations of their regulations: “For example, a judge/jury will deal with allegations of and make findings about rape and a university will deal with allegations of and make findings about sexual misconduct” (p.6). The guidance makes it very clear that universities must not act as courts. “It is unreasonable and dangerous for all involved to ask a university to make any findings about an alleged criminal offence. To do so would undoubtedly open universities up to legal challenge (particularly by an accused student as a finding of “rape” or “fraud” or “theft” by a disciplinary panel could have very serious ramifications for his/her future career” (p.10). In other words, best to leave it to the professionals.
Furthermore, UUK wishes to dispel the potential for conflict between criminal and university cases. Again, this is to prevent universities encountering any legal issues: “We recommend that if a report is made to the police [...] then save for taking any necessary precautionary action, universities should not undertake any disciplinary action against the accused until the criminal process is at an end” (p.9). Avoiding a conflict of interests prevents legal issues for the university, and ensures that students receive professional support.
Another key point is that of universities having codes of conduct. According to UUK, these codes must “outline unacceptable behaviour, and the consequences that may follow and the need to define certain terms clearly e.g consent” (p.13). UUK has decided to lead by example. In this report, it lists numerous examples of sexual misconduct, alongside possible sanctions (p.14). Examples range from “making unwanted remarks of a sexual nature” to “sexual intercourse or engaging in a sexual act without consent.” Possible sanctions include “expulsion,” “compulsory attendance at a workshop/ coaching session” and a “written apology.”
Several universities seem to have taken this on board. In our research, we have noticed that several Cambridge colleges such as Darwin and Downing use these definitions, as does the University of Nottingham. Other universities that define sexual misconduct in their policies include Warwick and Bristol.
However, these guidelines are not compulsory. Many universities either don’t have a separate sexual misconduct policy or throw it under other policies - see Cardiff, Kings etc. Moreover, we have noticed that few universities choose to list sanctions in their own policies and procedures. We think this is a significant oversight. Not only would this act as a possible deterrent, it would also show that cases will be taken seriously. It would prove that actions have consequences.
We were also interested to see who is behind these guidelines. One member of the report’s steering group is Graham Virgo, Senior Pro-vice chancellor at the University of Cambridge. As previously mentioned, Cambridge has directly implemented UUK definitions into some of its policies. It did, however, come under fire in 2019 for changing its regulations. From 1st October 2019, the university would deal with allegations of sexual misconduct as a breach of student conduct, rather than under general disciplinary procedures. Allegations that occurred in the interim (June-October 2019) would not be dealt with under either the old or new policy. Consequently, two investigations were dropped, as during that period there were no regulations specific to sexual misconduct. In August, Virgo published a letter in the Guardian, defending the university’s decision. A representative of law firm McAllister Olivarius, known for its work on university sexual assault cases, stated the decision could be “unlawful.” Interesting. We can’t help but think it’s ironic that a member of the UUK steering group failed to ensure that his own students were protected.
All in all, the guidelines are pretty good, but it’s a shame they aren’t compulsory. It’s a missed opportunity to implement concrete change.