On this page you will find information about sexual misconduct investigations at university.
- What is an investigation?
- When should an investigation take place?
- Criminal vs university investigations
- What to expect from an investigation process?
- Challenges to university investigations
What is an investigation?
A university investigation is a disciplinary procedure that is carried out internally by the university. Investigations are also referred to as internal disciplinary procedures.
In the context of sexual misconduct, an investigation (or an internal disciplinary procedure) might take place if a student or staff member formally reports to the university an experience of sexual misconduct perpetrated by another student at the university.
During the investigation process the university considers whether a breach of discipline has occurred based on the evidence provided, and decides on the disciplinary sanction or outcome.
The Pinsent Masons and Universities UK Guidance For Higher Education Institutions (2016) replaced the Zellick guidelines (1994). The guidelines advise universities how to handle sexual misconduct allegations, and are referenced throughout this page.
The previous Zellick guidelines stated that a university should not deal with allegations of sexual assault internally – only when a case had been through the criminal processes could the university disciplinary processes begin. The Zellick guidelines are out of date, and universities should now refer to the updated 2016 guidance.
See the NUS breakdown of the outdated Zellick guidelines and why they aren’t fit for purpose.
When should an investigation take place?
The Pinsent Masons guidelines (2016) state that universities should have a published ‘code of conduct’ which clearly sets out the types of behaviours that are unacceptable at university, and makes it clear that any such behaviour will be a breach of discipline and may be sanctioned in line with the disciplinary procedure/regulations at the university.
Students and staff should be able to easily access the university’s code of conduct and disciplinary regulations.
See Loughborough University’s sanctions guidance for an example of disciplinary sanctions at university. Note that these will vary across institutions.
Sexual misconduct will fall under ‘breaches of conduct’ within universities; because of this, sexual misconduct allegations can be investigated internally by universities, and students are entitled to this. Learn more about the contractual relationship and duty of care universities have to students.
No pressure should be put on the reporting student to report to the police, and they should be made aware that, even if the allegation constitutes a criminal offence, they are still entitled to an internal investigation by the university
Criminal vs university investigations
Criminal investigations or prosecutions are criminal processes that have the power to sanction individuals in a wide number of ways, including imprisonment, which go way beyond the disciplining powers of the university.
University investigations are more limited than a criminal investigation. Universities can’t investigate criminal offences, but they can investigate breaches of conduct, even when the breach of conduct constitutes a criminal offence.
“A university cannot make a finding about whether or not an accused student has raped a reporting student because that is a criminal offence… However, a university can decide if there has been a breach of discipline [and] should be dealt with as potential sexual misconduct” (Pinsent Masons, 2016:10).
What to expect from an investigation process?
Guidance from The 1752 Group and McAllister and Olivarius (2021) provides universities with recommendations for the investigation process relating to staff-student sexual misconduct cases.
This guidance is relevant for all sexual misconduct cases at university and demonstrates what the reporting and accused parties should be entitled to from their university. Investigation processes will vary across institutions.
Key recommendations include:
The investigation process should be a fair and transparent process for all involved.
Support should be available throughout the process, and after, for both parties (Pinsent Masons, 2016:6).
Both parties (the reporting and accused) should be provided with clear information about the process.
Precautionary action should be taken on the student who is alleged to have breached discipline or committed a criminal offence. This takes place at an early stage, and is not a sanction. Examples include suspension and moving accommodation, for example (Pinsent Masons, 2016:8).
The investigator should be appropriately trained and independent.
The impact of the investigation on those involved should be minimised.
Complainants should be free to discuss their experience of sexual misconduct.
Disciplinary hearings should involve a panel which is fair, independent, free from bias, and include student representatives where possible.
The outcome of the disciplinary procedure should be shared with both parties.
Both parties should be made aware of their right to seek a review/appeal the outcome from the investigation, and be made aware of their right to complain to the the Office of the Independent Adjudicator (OIA) if dissatisfied.
Further guidance from Universities UK on handling allegations of student misconduct.
The OIA’s Good Practice Framework for Disciplinary Procedures (2018) also provides useful recommendations for university investigations.
See also Towl. G. & Humprheys, J. (2020). Addressing Student Sexual Violence in Higher Education. Emerald Group Publishing, for more information.
Adopting these key recommendations can help ensure universities are in line with guidance from the regulatory body for universities in England, the Office for Students (OfS). Their Statement of Expectations supports universities in England to prevent and respond to sexual misconduct. Although not mandated, universities are expected to show the change they have made in response to the expectations, particularly if they have not met the expectations.
Challenges to university investigations
Unfortunately, there can be issues with investigation processes in universities, and the guidance above can support universities in making changes to better support staff and students.
University students and staff have the right to appeal the outcome of investigations. Students can complain to the OIA if they are dissatisfied.
Research from The 1752 Group shows that, for some students who do report, the investigation process was found to be disappointing.
Research from Al Jazeera shows that some universities in the UK, between 2017 to 2020, failed to adequately investigate the majority (83%) of sexual misconduct complaints.
Research from the University and College Union Sexual Violence Group found that university staff complainants were often discredited, victimised, subject to rumours and not believed.