Seeking campus justice: challenging the ‘criminal justice drift’ in United Kingdom university responses to student sexual violence and misconduct
| Published date | 01 September 2021 |
| Author | SHARON COWAN,VANESSA E. MUNRO |
| Date | 01 September 2021 |
| DOI | http://doi.org/10.1111/jols.12306 |
DOI: ./j ols.
ARTICLE
Seeking campus justice: challenging the
‘criminal justice drift’ in United Kingdom
university responses to student sexual violence
and misconduct
SHARON COWAN1VANESSA E. MUNRO2
School of Law, University of Edinburgh,
Old College, South Bridge, Edinburgh,
EH YL, Scotland
School of Law, University of Warwick,
Coventry, CV AL, England
Correspondingauthor
SharonCowan, School of Law, University
ofEdinburgh, Old College, South Bridg e,
Edinburgh,EH YL, Scotland
Email:s.cowan@ed.ac.uk
Abstract
In recent years, growing concerns have been expressed –
including in the press and social media – over the appar-
ently inadequate responses of many United Kingdom
(UK) universities to complaints of student sexual
violence and misconduct (SSVM). In this article, we
underscore universities’ legal, ethical, and civic respon-
sibilities to students, which require them to implement
effective regimes for the prevention and sanctioning
of such behaviour. We suggest, however, that current
responses are moving in the wrong direction. More
specifically, universities are too often turning (back)
towards adversarial and procedural paradigms, devel-
oped within the criminal justice system, where the
persistence of a ‘justice gap’ in cases of rape and sexual
assault has been well documented. We argue that this
‘criminal justice drift’ may frustrate the possibility for
more tailored, transformative, and trauma-informed
processes for addressing SSVM within higher education
institutions.
This is an open access article under the terms of the Creative Commons AttributionLicense, which permits use, distribution and reproduc-
tion in any medium, provided the original work is properly cited.
© The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of CardiffUniversity (CU).
wileyonlinelibrary.com/journal/jols J.Law Soc. ;:–.
INTRODUCTION
In recent years, growing concerns have been expressed over the adequacy of responses on
the part of many United Kingdom (UK) universities to complaints of student sexual vio-
lence and misconduct (SSVM). Students reporting SSVM have publicly denounced investiga-
tive and disciplinary procedures that excluded them or caused them additional trauma, as well
as remedies that they felt failed to recognize the severity of the conduct in question.Mean-
while, some of those accused of sexual violence and misconduct have complained that uni-
versity processes are not fit for purpose and that the protections afforded to them have been
insufficient.The strong public appetite for in-depth discussion of such cases has become increas-
ingly apparent, often leading to national headlines.Not surprisingly, particularly in light of the
increasingly market-oriented nature of UK university education,many institutions fear the rep-
utational damage associated with such high-profile (alleged) failings to tackle SSVM; however,
many also appear unable or unwilling to implement more robust processes, or to act decisively
through education initiatives to prevent it.
Universities, both in the UK and elsewhere, are moving awayfrom developing distinctive prac-
tices and responses to tackle SSVM and turning (back) towards a more familiar criminal justice
paradigm. In this article, we suggest that this ‘criminal justice drift’ poses a number of risks,
including the creation of protracted and adversarial procedures that are often beyond the com-
petence and training of those involved in university discipline and have been shown in other
contexts to impose additional harm and distress upon complainants of sexual violence. Adopting
this approach also frustrates the potential to realize more innovative and trauma-informed ways
for universities to respond to SSVM.
To make this argument, we first provide a brief overview of the approach taken by UK uni-
versities to SSVM to date, charting the move from a typically ‘hands-off’ approach towards the
more recent recognition – at least formally – of their responsibilities. We set out why universities
must take robust action in response to reports of SSVM, re-emphasizing universities’ legal duties
Following C. Humphreys and G. Towl,Addressing Student Sexual Violence in Higher Education: A Good Practice Guide
() –, we adopt the term ‘reporting party’ to refer to the person making a report of SSVM and ‘respondent party’
to refer to the person about whom the report is made. This distinguishes the university context from the criminal justice
context, where the terms ‘complainant’or ‘complainer’ and ‘accused’ are more appropriate. We use ‘SSVM’ as an umbrella
term that includes ‘all non-consensual, unwanted, forced and/or coercedsexual behaviours including, but not limited to,
rape, assault by penetration,sexual assault, sexual harassment, indecent exposure, image-based sexual abuse, stalking and
domestic abuse’ (id., p. ).
See for example AB v. University of XYZ [] EWHC (QB) ( November ).
See for example D.Lee and K. West, ‘Universities “Failing” Victims of Sexual Misconduct’ BBC News, September ,
at <https://www.bbc.co.uk/news/uk->; B. Jeffreys, ‘Student Rape Survivor: “It Felt Like I Was Being Interro-
gated”’ BBC News, October , at <https://www.bbc.co.uk/news/education->; R. Croxford, ‘Sexual Assault
Claims “Gagged” by UK Universities’ BBC News, February , at <https://www.bbc.co.uk/news/uk->;J.
Lawthom, ‘Sexual Assault Claims “Mishandled” by Universities’ BBC News, May , at <https://www.bbc.co.uk/
news/uk-wales->. The authors’ own institutions have also very recently featured in such headlines: BBCNews,
‘Call for Action at Edinburgh University over Students’ Rape Claims’ BBC News, April , at <https://www.bbc.co.
uk/news/uk-scotland-edinburgh-east- fife->; J. Murray, ‘Warwick University Students Stage Sit-In over Sexual
Abuse’ Guardian, April , at <https://www.theguardian.com/education//apr//warwick-university- students-
stage-sit-in- over-sexual-abuse>.
M. Molesworth et al. (eds), The Marketisation of Higher Education and the Student as Consumer ().
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