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Last weekend saw calls for a reform of the University of Cambridge’s collegiate system after one college, Trinity Hall, readmitted an (emeritus) fellow accused of multiple instances of sexual harassment, only two years after stating that he “will not be present in college at any time in the future”. It must have felt like a gross betrayal to the students.
This looks like a u-turn, given that the university promotes itself as a leader in tackling campus sexual misconduct through its Breaking the silence campaign. What was its response? Nothing about social responsibility or “zero tolerance”, but rather that “the colleges are all semi-autonomous” and that “the central university is not involved”.
The real question, though, was not why the decision was left to Trinity Hall, but how any institution can have such a haphazard system for handling sexual harassment complaints. Trinity Hall held a formal investigation that apparently led to an apology to the student(s) affected and a permanent withdrawal of the fellow from the college. Two years later it changed its mind, describing the original decision as “incorrect” since it had been “not agreed with” the fellow. Since when did an employer have to secure the agreement of an employee it is disciplining for sexual harassment?
Universities do not handle sexual misconduct complaints in a fair, non-discriminatory way. In our legal practice, representing sexual harassment victims, we see common failings recurring across higher education which may account for Trinity’s Hall’s inconsistency.
Instead of adopting an investigation which balances the rights of one party against another and reviews the facts in a transparent way, institutions tend to funnel complaints through their existing disciplinary processes.
While this has a semblance of legitimacy and will include protections for the accused, it ignores the rights of complainants, treating them as strangers to a process that is strictly between the university and the accused.
This would only work if universities’ interests were completely aligned with those of the complainants – but they are not. Universities have their own reputations to consider. And even if they put those aside entirely, the fact complainants have been deprived of a voice in the process repeatedly disadvantages them.
The practical effects of excluding complainants from the process are many. They are often not given an opportunity to counter “evidence” used to discredit them; they have no right to attend the hearing; they have no access to free legal representation; and they have no right to appeal or even know the outcome of the process.
When a university does share information with complainants it is an indulgence that is usually subject to overreaching conditions of confidentiality. Complainants are told that sharing information may be a disciplinary offence. This is not a fair process by which they can hold their universities and harassers to account.
Given the difficulty in reaching a decision on conflicting facts, it is no wonder that universities see the attraction in “resolving” a complaint by making a deal with the accused. The problem with side deals, however, is that they are either informal and fluid, and so change as circumstances change; or they are formal and enforceable but not by the victims of the harassment.
Trinity Hall’s decision is indicative of a wider problem pervading our universities: they are routinely depriving sexual harassment victims of a fair avenue of complaint. Universities must adapt their disciplinary process to give complainants the standard rights of natural justice expected of any adjudicatory system. Without this it is hard to see how they can meet their legal obligations to students, let alone their own hype about “zero tolerance”.
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