Kangaroo courts on campus: a legal travesty

Last week, the Guardian published a report on sexual abuse on UK university campuses. It detailed a number of stories involving young women telling university staff members that they had been sexually assaulted, and the staff’s allegedly poor response. The staff were accused of ‘victim blaming’ and minimising the students’ complaints. The Guardian suggests that a standardised, country-wide set of guidelines be established for universities when dealing with allegations of sexual assault.

Such a standardised system has a precedent. In the US, alternative tribunals of the kind anticipated by the Guardian report already exist on campuses. American universities have a federal duty under Title IX of the Education Amendments Act of 1972 to prevent sexual harassment and abuse. Today, it is becoming more common in the US to formulate what is known as a ‘Title IX complaint’ after the police have indicated that there is insufficient evidence to pursue a criminal case. A website set up to offer advice on launching Title IX claims says this procedure can be a useful ‘alternative’ to pursuing a complaint where the normal requirements of due process cannot be fulfilled. Not surprisingly, these campus tribunals have not turned out well. There have been successful lawsuits against American universities for failing to treat fairly defendants accused of sexual assault. Many defendants have complained of having few due-process rights. Students have been expelled on the basis of weak evidence, only to be cleared later.

The introduction of such tribunals in Britain would make the issues identified in the Guardian report worse. Reading some of the stories in the report, it is clear that some complainants are unflinchingly sure in their interpretation of what happened to them, but others seem far less sure about where the line is between normal, youthful activity and sexual violence. One young woman says a close friend kept trying to kiss her, after they had kissed consensually, and then ‘refused to leave all night’, despite her asking him to ‘several times’. She reported this incident to her teacher as sexual abuse. Another described how she woke up in a stranger’s bed after a drunken night out. She knew she went into his bedroom consensually, but then said – with respect to what followed – ‘I know, academically, that I was raped’.

When these women approached university staff members, they were ‘victim blamed’, they claim, because staff asked them whether the encounter may have involved less coercion than was being suggested. Reading the report, I was struck that the Guardian would publish these allegations and treat them as proven, confirmed and unquestionable statements about sexual abuse without any degree of journalistic distance. Perhaps the paper should have contacted the accused before reaching its conclusions about the truth of the allegations?

Arguing that these allegations should be treated with some distance and objectivity is not to say that the students are lying about what happened. But the truth of their allegations is inherently difficult to interpret. In a society in which we are constantly encouraged to re-evaluate experiences in our intimate lives against the standards of the law, these young people naturally feel an inclination to reinterpret past events within the framework of abuse.

The idea that someone could be ‘academically’ raped captures something distinct about contemporary attitudes to sexual violence. Today, being a victim of sexual violence sometimes has little to do with being subjected to actual violence. Often it has more to do with being involved in sexual activity without having gone through what are considered the ‘normal’ stages of interaction. The truth is that many people who went to university will have experienced what the Guardian is now presenting to us as ‘sexual assault’. Over-pressurising mates; drunken sojourns with strangers; awkward, miscalculated fumblings – these were once the staple of a student’s sex life. Not any more. The idea that rape is something that happens when certain steps are not followed, or because of certain criteria not being fulfilled, means that the improvised, imperfect and often quite strange moments which populate young people’s love lives are being recast through the prism of sexual violence. This is the rise of the academic rape: rape which happens not because of something someone did, but because of what they did not do.

Perhaps the most worrying thing about this tendency is that it is legally correct. The idea that rape is committed when someone falls foul of a particular set of prescribed procedures is reflected in recent legal changes around rape, which place a greater burden on a defendant to take reasonable steps to ascertain whether his partner consented to sex. The Crown Prosecution Service’s own action plan on rape encourages the police and CPS lawyers to ‘focus on the steps taken by the defendant’ when deciding whether to arrest and charge. In other words, look for what a defendant did not do to ascertain whether his belief in the complainant’s consent was reasonable.

Now, with the suggestion that more campus complaints of sexual abuse should be resolved through informal tribunals, in the style of American universities’ Title IX suits, we may start to see these cases being played out in forums which allow for fewer defendant’s rights and which have been reported as riding roughshod over due process. Not only are more and more young people being encouraged to understand their sex lives through the language of sexual abuse, but now, when things do go wrong, they are being encouraged to rely on the kangaroo courts of the college campus to bring them some resolution.

When serious allegations, like some of those detailed in the Guardian, are made, we owe it to everyone involved to remain objective and impartial. Treating these allegations as proven incidents of sexual abuse does nothing to recognise the severity of what is being alleged. In fact, by reproducing the allegations verbatim and treating them as confirmed incidents, the reporters arguably do a greater disservice to the students alleging abuse than did the members of staff who questioned them. The staff sought to allow the students to consider whether there was another interpretation for what had happened to them, rather than simply labelling it ‘sexual violence’. This isn’t ‘victim blaming’ – it’s merely presenting intimate life for what it often is: messy, accidental, awkward. The idea that the approach taken by these members of staff justifies the imposition of US-style informal tribunals denies the possibility that these complaints may well be dealt with through adult support and peer companionship, or, when serious, through the criminal-court system, rather than through a kangaroo court on campus.

Luke Gittos is law editor at spiked, a solicitor practicing criminal law and convenor of the London Legal Salon. His first book, Why Rape Culture is a Dangerous Myth: From Steubenville to Ched Evans, will be published later this year.