Universities, sexual misconduct and confidentiality

Sexual abuse on campus – an update on the UK perspective

We previously mentioned a rise in reported incidents of sexual assaults and misconducts made by students in the UK, here.

The BBC reports that universities are using non-disclosure agreements (‘NDA’) – commonly known as ‘gagging clauses’ – to prevent students from publicising complaints about sexual assault on campus. BBC News asked UK universities how many students had signed NDAs since 2016 and how much, if any, money had been paid out to them.  Almost all the UK universities replied.  45 universities said they had used NDAs and 300 students had signed NDAs.  However these figures are thought to underestimate the true picture, as some universities provided limited information in answer to the BBC’s queries.  In the article two students say they reported sexual assault by fellow students to their university.  They criticise their respective universities for offering insufficient support and using NDAs.  Another student is critical of her college for offering financial settlement and a NDA after she reported safeguarding concerns.

Unfortunately the data obtained by the BBC does not identify how many NDAs were used in cases involving allegations of sexual misconduct.  It is likely that some NDAs relate to different grievances, such as bullying, discrimination, false advertising, and support and accommodation issues.  As such, it is difficult to assess the true scale of the problem.

The UK higher education sector is increasingly aware of the issue though.

In 2016, UK Universities – the representative organisation for the UK’s universities – published guidance on how to handle alleged student misconduct which may also constitute a criminal offence – available here. In 2019, it published a report called ‘Changing the Culture’ on the progress made in implementing this guidance- available here.  However, neither of these documents makes mention of NDAs.  In April 2019, UK Universities responded to a BBC investigation on the use of NDAs.  In its statement they support the use of NDAs in appropriate circumstances, but add “We also expect senior leaders to make it clear that the use of confidentiality clauses to prevent victims from speaking out will not be tolerated.” This comprehensive guidance for universities announced for the autumn of 2019 has not been published yet.

The Office of the Independent Adjudicator (‘OIA’) – the statutory body which reviews student complaints – published a briefing note on 31 October 2018: Complaints involving sexual misconduct and harassment. This note makes no express mention of NDAs either.  More generally, the OIA discourages the use of confidentiality clauses after the OIA has made recommendations, and warns universities to ‘think carefully’ about NDAs before it has issued recommendations.

The Office for Students (OfS) has been the regulator since 2017.  The OfS is consulting until the end of March 2020 on the way universities deal with harassment and sexual misconduct in higher education, and on the regulatory approaches available. Having threatened fines in the past, the OfS is now looking at adding a condition of registration for universities in the UK, or creating a new public interest governance principle.  This consultation document makes no mention of confidentiality or NDAs though.


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Geneviève Rich. Associate Solicitor, BLM

geneviève.rich@blmlaw.com

 

 

 

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