OfS recently launched a consultation on tackling harassment and sexual misconduct. The proposal forms part of a wider consultation on regulating harassment and sexual misconduct in English higher education, including greater support for victims, and mandatory training for students and staff. You can read the consultation here.
NUS has submitted a response to the proposals OFS have provided. Have a read through to see what we had to say.
1a: 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.
1a.1 We agree with this proposal. While we appreciate there has been a significant shift in the sector, notably UUK’s Changing the Culture work, reporting, learning and progress has been inconsistent. We believe a minimum standard ensuring the welfare and wellbeing of all students will support wholescale progress on this important issue.
1b: Do you have any alternative suggestions to the proposal to introduce a new general ongoing condition relating to harassment and sexual misconduct? If so, please explain and provide reasons for your view.
2a: 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
2a.1 We agree. It is important that there is consistency with the definition in law, while we would also recommend that broader behaviours are recognised when understanding how sexual harassment might operate at an institution.
2b: Do you have any alternative suggestions to the proposal in question 2a that you think may be more appropriate? If so, please explain and give reasons for your view.
3a: 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.
3a.1 NUS agrees with this proposal as we define sexual misconduct to define a continuum of sexualised and predatory behaviours. This term is used by the 1752 Group to move beyond more narrow definitions of sexual harassment as ‘unwanted behaviour’ to address the specific nature of the power imbalance between staff and students in higher education. As Page, Bull and Chapman note, 'in the context of the unequal power relationships that exist between staff and students, notions of wanted behaviour and consensual relations are complex' and the term sexual harassment 'relies on the person to which the sexualised acts and behaviours are being directed to state that these are 'unwanted’ and requires the student to make a judgement on what is appropriate' (Page, et al., 2019) Page, T., Bull, A., Chapman, E., Forthcoming. Making power visible: Activism to address staff sexual misconduct. Violence Against Women; see also Vera-Gray, F., 2016. Men's Intrusion, Women's Embodiment: A critical analysis of street harassment, Routledge, London.
3b: Do you have any alternative suggestions to this proposal that you think may be more appropriate? If so, please explain and give reasons for your view.
Proposal B: Proposal to require a provider to develop and publish a ‘single document’ with ‘minimum content requirements’
4a: 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.
4a.2 Having a concise and accessible document would make it easier to understand the policies and procedures relating to sexual misconduct and facilitate swift and appropriate action being taken when incidents arise. It would be especially useful for students’ unions to support different student and staff communities to play a role in delivering against those processes, owning the issues themselves and being able to contribute to a safer, healthier culture.
4a.3 As an example, such a document could support learning by clubs and societies, including sports societies during induction and refresher periods. It would facilitate the creation of tailored materials that best suit the context of those societies while clearly linking back to the policies at an institutional level. This would go some way in making sexual harassment and misconduct a shared responsibility.
4a.4 When responding to incidents it would also lessen the burden on students to navigate a complex policy environment in order to understand what happened and what action they can take. This is particularly important as it is likely many students responding to an incident will be in a state of panic or distress.
4b: Do you have any alternative suggestions to the proposal in question 4a? If so, please explain and provide reasons for your view
4b.1 While supportive of this proposal we recognise that sexual violence is a complex policy area where multiple policies and procedures will connect, e.g. mental health policies, extenuating circumstances policy. It is important that information is not oversimplified in order to achieve the communication objectives.
4b.2 We would like to see this serve as a master document, under which other supporting documents required are clearly linked to.
5a: 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.
5a.2 In principle we agree that there should be a minimum content requirement specified to enable a more uniform approach to sexual violence across the sector, to make it easier to compare approaches between institutions and crucially to support cross institution learning.
5b: Do you have any alternative suggestions to the proposal in question 5a? If so, please explain and give reasons for your view.
5b.1 We would like to see proposal recognise the different contexts that will exist across institutions. We therefore support a base requirement where encouragement is given for providers to strive for enhancement.
6a: 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.
6a.2 We support the minimum requirements on providers to outline how exactly their policies and procedures will protect students from harassment and sexual misconduct in this document, alongside providing information on relevant reporting and support mechanisms; data management relating to any incidents; education and training provided to staff and students in working to policies and procedures; credibility of investigation processes. This list is a reasonable base level on which providers can enhance information provided.
6a.3 Some of the content requirements, particularly mandatory training, are resource intensive and while we support them we believe they are only effective if provided alongside a suite of education and support resources for students. Therefore we would like to see the package considered in the round rather than a list of individual activities which may have limited impact on their own.
6a.4 We would also expect that providers state how students are involved in developing, monitoring and enacting the policies in place. Given the focus on how these proposals will improve communication to students in order to build trust and effectiveness in an institution’s response to harassment and sexual misconduct, a commitment to meaningful student engagement also forms a crucial part of that.
6b: Do you have any alternative suggestions to the proposal in question 6a? If so, please explain and give reasons for your view.
7a: 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.
7a.1 We agree that the document should be in a prominent and accessible place on the website.
7b: Do you have any alternative suggestions to the proposal in question 7a? If so, please explain and give reasons for your view.
Proposal C: Requirements relating to capacity and resources
8a: 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.
8a.1 NUS agrees with this.
8a.2 It is important that a provider has the resource to deliver on the commitments outlined within the document. However we would urge that impact is prioritised; monitoring and measuring the student experience over measuring capacity or resource.
8a.3 We would welcome the different context of institutions with regard given to how those institutions can be supported to deliver on their commitment to students such as enabling the pooling of resources for less resourced providers.
8b: Do you have any alternative suggestions for the proposal in question 8a? If so, please explain and give reasons for your view.
Proposal D: Requirements relating to freedom of speech
9a: 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.
9a.1 NUS agrees with this on the grounds that consistency is crucial. The conditions related to sexual harassment and misconduct should complement those related to freedom of speech.
9a.2 Given that providers are required to review their policies to make sure they're complaint with free speech requirements and this extends to students’ unions, it's important that students’ unions are properly involved in reviewing and writing those policies.
9a.3 With regards to content related to harassment and sexual misconduct within course materials, we concur it is unlikely that would constitute sexual harassment in and of itself. Given the OfS has been clear that exposure to “controversial” ideas and topics falls outside of harassment some regard must still be given to how such content can harm students either because of their identities or past experiences. We would like to see guidance provided on how the individual needs of those students can be considered in a way that supports them to actively engage with their course without being exposed to harm, such as the introduction of a no detriment approach where students could proactively opt out of that content and alternative forms of engagement might be agreed.
9b: Do you have any alternative suggestions to the proposal in question 9a? If so, please outline and give reasons for your view
Proposal E: Requirements relating to restricting the disclosure of information
10a: 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 were pleased to see the pledge introduced by the Department for Education to encourage providers not to use NDAs going forwards, and ran the Build Trust not Silence campaign in partnership with Not on My Campus and with the support of Can’t Buy My Silence to push universities to sign the pledge. It is encouraging that 70% of providers have now signed this.
10a.2 We have been concerned by the reluctance met by some providers due to misinterpretations of the pledge. For example, we are aware of providers believing they should not sign the pledge as they have never used an NDA in an incident relating to harassment or sexual misconduct, and to sign would be admission that they had. We therefore welcome OfS’ proposal as prohibiting NDAs is clearer and removes any ambiguity.
10a.3 We are also pleased to see “informal arrangements” be acknowledged as we know that students are often subject to advice which discouraged speaking out about their experience and ultimately silences them.
10b: Do you support any of the alternative options we have outlined or do you have any other proposals? If so, please explain and provide reasons for your view.
10b.1 We would like to see OfS take a stronger position on informal arrangements as we recognise this to be the most common method through which students experiencing such incidents are effectively silenced. Recommendations not to disclose harmful experiences out of concern for their wellbeing, as staff can often do, prevent students from processing the harm they experience and can also reinforce victim blaming where speaking out is framed as damaging to their reputations.
10b.2 We would like to see OfS positively promoting the values of openness and honesty; speaking out as a healthy process, and one that encourages collective learning and reflection on what created the conditions that enabled the incident in the first place. It is the fact that providers see protecting their reputation as a priority that encourages secrecy and the use of NDAs in the first place, but a more positive lens of transforming culture would allow openness and discussion to be understood not as a risk but as an opportunity to eradicate sexual violence from our campuses and society.
Proposal F: Requirements relating to personal relationships between staff and students
11a: 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:
11a.1 NUS considers that there are risks and benefits of both options A and B. After consulting with SUs on the options laid out, on balance we prefer A with some changes as have some reservations with the proposal as is.
11b: Please give reasons for your answer in question 11a above.
11b.1 NUS’ preference is option A due to this option encouraging transparency over secrecy and enabling risks to be managed. Crucially it enables vulnerable students, including those in abusive relationships, to access support.
11b.3 We are conscious that Option B is often preferred by student themselves, due to the clear line it draws on the issue. Students find it very difficult to identify and assert boundaries due to both the power imbalance and in many instances, especially for postgraduate students, navigating unfamiliar environments and the “norms” of academia e.g. behaviours at conferences. Option B is easy to communicate to both students and staff and easy to identify and take action when it is breached. This would likely be sufficient prevention that protects the vast majority of students.
11b.4 We are however wary of the implications for students who may find themselves in particularly vulnerable situations and who may face greater barriers in accessing welfare support if a ban is introduced. We foresee multiple scenarios where this may arise;
11b.4.1 student in an abusive relationship with a staff member may find it harder to seek help if they fear that staff member will be punished. They could face pressure from the staff member directly not to make the relationship known, or they could simply want to leave the relationship but not wish their partner any harm.
11b.4.2 A student in a healthy relationship with a staff member who may need to access support services for challenges faced outside of their relationship but that may involve disclosure of their relationship in order to access it e.g. abortion access, sexual health services, accessing university mental health services, reporting crime if the staff member was also impacted in some way (e.g. burglary, theft, physical assault).
11b.5 While we prefer Option A we hold some concerns that we are keen to see addressed if implemented.
11b.6 Resource allocation: A major concern with Option B is that resource allocated to tackling sexual harassment and misconduct is focused on policing relationships rather than supporting students, and to some extent this is also true for option A. We would want to see the objective of student support centred in the design and resourcing of the register administration process.
11b.7.1 Verification of relationship with relevant student: We are concerned that the proposal only requires the relevant staff member to inform and register their relationship with the provider as it reduces the student to a passive bystander in the process. Not only does this mean that personal information regarding that student might be shared without their consent or knowledge, it also leaves the policy open to abuse that could facilitate harassment. For example if a staff member registered a relationship without the student being aware and believing it to be true, it can enable predatory behaviours i.e. behaviours which would be considered inappropriate if they were not in a relationship might now be deemed appropriate. Verification of the relationship by the student should be included to involve and empower students in a matter to which they are central, and in order to prevent registration of false relationships.
11b.7.2 An additional benefit of including students in the registration process is that it creates a check in point for the student’s welfare and enables the institution to share positive messaging on healthy relationships, the support available and provide clarity on relevant policies and procedures. As the proposal requires a staff member to report if the nature of the relationship changes, we would suggest that a check in accompanies these points.
11b.8 Clear data protection and handling policy: There is little mention in the proposals of how sensitive data relating to staff student relationships will be managed and who will have access to it. We consider this critical for staff and students to be able to trust in registering their relationship in the first place and any ambiguity around who will be able to access that data is likely to be a major deterrent. We would like to see guidance issued that specifies the principle of confidentiality, assuring those involved that only staff members that are directly responsible for managing and mitigating risk for the student will be informed. A student check in to verify the relationship, as recommended above, would further allow the institution to communicate its data handling policy and provide reassurance to the student, who will understandably be anxious about their personal information being shared.
11b.9 Broadening the range of disciplinary responses: It is concerning that the proposal only states dismissal if a staff member fails to comply with registering the relationship. While we agree that it constitutes a serious offence it fails to recognise that there might be many reasons why a staff member may be reluctant to disclose their relationship, such as a fear of facing discrimination or judgement. Examples include disclosing sexual orientation, non-monogamy, or an affair. We would like to see a range of disciplinary responses that account for these complexities as at present it assumes that failing to report a relationship has malicious intent.
11c: Do you have any alternative suggestions to the options considered in Proposal F? Please give reasons for your answer.
11d: We would welcome views on whether Option B or any of the other options considered should allow for other exemptions. Please give reasons for your view.
11d.1 We note the balance needed in OfS’ approach to respect the right to family and private life. We agree with the exemption for those in legally recognised relationships however are concerned that many other relationships that should be protected will fall outside of this including those legally recognised in other countries.
11d.2 There are many family units that exist without legal recognition, such as long term cohabiting partners, that we wish to see included. Given it is students and staff from liberation groups that disproportionately hold non traditional relationships. This means that LGBT+ communities and migrants stand to be protected less by this policy.
11d.3 Coupled with the greater precarity that these groups face in university employment and in education, we are deeply concerned about the double discrimination they can face as a result of this policy.
Proposal G: Proposed implementation
12a: Do you agree or disagree with the proposals for the implementation of any new condition of registration? Please give reasons for your answer.
While NUS takes the view that the sooner these can be implemented the better, we must be confident that requirements can be met by institutions so that the trust and confidence of students can be secured from the outset. We are particularly concerned about the establishment of the relationships register and the likelihood that mandatory training can be rolled out within three months and recommend consultation with providers to identify a reasonable timeframe for implementation. We really want to see the new approach to tackling harassment and misconduct succeed, and students’ faith in their institutions’ processes stand to be severely damaged if quality is compromised by an unmanageable timeframe.
12b: Do you have any alternative suggestions for the implementation of any new condition of registration that you believe may be more appropriate? If so, please explain and give reasons for your view.
12b.1 As above an implementation timeframe should be designed and agreed with providers.
12c: 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.
Other questions about the proposals
13: Do you foresee any unintended consequences resulting from the proposals set out in this consultation? If so, please indicate what you think these are and the reasons for your view.
14: Are there aspects of the proposals you found unclear? If so, please specify which, and tell us why.
15: In your view, are there ways in which the policy objectives discussed in this consultation could be delivered more efficiently or effectively than proposed here?
16: Do you have any comments about the potential impact of these proposals on individuals on the basis of their protected characteristics?
16.1 As has been outlined we are concerned about the disproportionate impact some recommendations on LGBT+, trans and migrant communities, liberation groups already face inequality and precarity within higher education. With regards to the free speech requirements enacted through these proposals we are also concerned that if inadequate thought is given to how students can engage meaningfully and proactively with courses that contain harmful and controversial content that will drive disengagement and mental health impact on impacted liberation groups. This is particularly true for trans students and survivors of sexual violence that are disproportionately women and non-binary students.