Caution needed by UK universities amid increase in civil claims in sexual misconduct cases

A growing number of incidents at UK universities are being pursued as civil claims rather than criminal offences, putting pressure on universities’ capacity for handling serious misconduct allegations, an expert has said.

There has been a rise in complainants using civil law claims in harassment and sexual abuse to establish a finding of fault against perpetrators.

Julian Sladdin, higher education expert at Pinsent Masons, said: “The rise in civil claims is due to a perception that the criminal system in the UK is failing victims of harassment and sexual violence. Universities continue to be challenged by the complex and sensitive need to respond to allegations of sexual harassment and violence on their campuses.”

Until the most recent Universities UK and Pinsent Masons guidance was published in 2016, it was widely believed that universities were precluded from investigating any issues that involved potential breaches of criminal law, such as assault and sexual violence.

“Now all higher education providers are aware of their duties to safeguard their students and have in place robust internal civil processes to respond to cases of serious misconduct. A university cannot determine breaches of the criminal law, but it must take appropriate steps to enforce its own codes of conduct even if a student does not refer concerns to the police. While this should clearly be the expectation of all higher education providers, it is clear that many institutions are now handling larger numbers of more complex cases internally which is placing greater pressure on already stretched investigative resources within universities. This is likely to increase if there is a greater shift in how cases of sexual harassment and violence are pursued in the courts,” said Sladdin.

In one recent case, a civil claim for ‘trespass to a person’ was pursued after criminal proceedings for rape were dropped. The Crown Prosecution Service did not proceed after deciding that the evidence in the criminal case was not strong enough. However, a civil court later found that on the civil ‘balance of probabilities’ test there was “no doubt” about the rape and sexual assault. The perpetrator was therefore liable for the tort of trespass to the person and a sum of £200,000 in damages was awarded.

In addition, an £8 million claim for alleged sexual abuse is currently ongoing in the civil court, with experts suggesting that these cases are part of a growing trend of civil claims for personal injury resulting from what are originally allegations of criminality.

The cases highlight the fact that the enhanced principles and standards of proof that apply in criminal cases – beyond reasonable doubt – compared to civil cases – on the balance of probabilities may often result in significantly different outcomes between cases.

“While the outcomes of a civil case can never be as punitive as a criminal case, complainants may sometimes feel that a finding of breach and a significant award of damages may send a strong signal that the perpetrator is at fault, even if they will not face imprisonment. It is evident that complainants are beginning to see the potential of pursuing civil cases as a way to obtain alternative redress when they believe they have been failed by the criminal system either due to the lack of resource to bring prosecutions or the high standards of evidential proof required that make it likely that any prosecution will not succeed,” said Sladdin.

Universities have a duty of care to their students and an obligation to respond to allegations of serious misconduct which occur on their campuses under their internal processes. These internal processes are a product of contract and are therefore governed by civil law.

Institutions must ensure that students who wish to pursue allegations through internal disciplinary procedures, either instead of or in parallel to criminal investigations, are able to do so and that they have sufficiently robust processes in place to meet this need.

Universities are required to manage the fact that allegations of sexual misconduct are likely to constitute criminal offences as well as breaches of their own codes of conduct. Allegations could be subject to both a criminal investigation and prosecution as well as an internal misconduct case progressed under the auspices of civil law.

Sladdin said: “Universities will need to take even more care to ensure that complainants are properly advised about their rights to access both internal and external processes and the different nature and outcomes of the criminal law and internal civil law processes. In particular, the fact that an internal process may result in an expulsion from university but cannot lead to any form of imprisonment. They will also need to be prepared for more potential cases being pursued through internal processes exclusively where a complainant is reluctant to report matters to the police or feels that they are being failed by the criminal justice system. This will place more focus on how effective internal tribunals are on being able to deliver fair, reasoned and proportionate decisions on breaches of their codes of conduct.”