The Office for Students’ (OfS) consultation document on regulating sexual misconduct and violence in universities was published in January and responses are due by 27 March. 1752 Group member Tiffany Page has already commented in the Guardian on the consultation document. Here’s a longer take on some of the thoughts that will go into our consultation response. We’ll share the full response as soon as it’s finished, but we wanted to share thoughts in progress in order to open up a dialogue with others who are also writing responses.

My initial thought is that the steps set out by the OfS’ statement of expectations will, in themselves, require a pretty big leap on the part of many higher education institutions (HEIs). For example, setting out clear behavioural expectations for staff would probably require having in place a staff code of conduct, which not all UK institutions have. It would also require having in place clear guidelines around when staff-student sexual and romantic relationships are acceptable; at the moment many institutions simply state that such relationships are ‘strongly discouraged’ (leaving aside ‘don’t ask, don’t tell’ policies such as Manchester’s).

The ‘statement of expectations’ is written at a high level and as such doesn’t contain much specificity. This could mean that the serious problems that we have identified in institutional responses to staff sexual misconduct remain unaddressed, for example around the timeframe for dealing with student complaints. At various points the document suggests that complaints should be dealt with in a ‘reasonable timeframe’ (point 7c) or in a ‘timely manner’ (p.19). Evidence from Silencing Students suggests that this is not happening, and this vagueness leaves a lot up to the institution. The Office for the Independent Adjudicator for Higher Education (OIA) guidance suggests that complaints processes should be completed within 90 days, but in the Silencing Students’ interviews, students were lucky if the process was completed in a year, and it was possible for processes to drag out for much longer.

One helpful clarification in this document is around the ways in which the OfS will monitor institutions’ compliance. While it won’t be asking institutions to report directly ‘in order to minimise burden on providers’ (a phrase that is repeated like a mantra throughout the document), it will now accept ‘notifications’ of institutions breaching their regulations from what appears to be a wider set of sources. Previously, I had had concerns that the OfS were gathering information on ‘systemic failures’ in HEIs handling of sexual misconduct only from complaints that made it to the OIA. This is a problem because evidence from Silencing Students shows that most students never manage to make it that far due to the slow pace of institutional complaints processes, alongside the severe emotional, financial, and academic toll that experiencing sexual misconduct can have in the first place. Therefore, any data that made its way from the OIA to the OfS on this issue would be only the tip of the iceberg. However, in this new document the OfS state that they will take notifications ‘from students or their representatives’ and also ‘will remain open to other potential sources and take account of any relevant information we become aware of, including for instance through reports in the media’ (p.17). This is a helpful development.

This clarification has implications for activists and students unions. It seems that it will be possible for a students’ union or other activist groups to gather data on issues arising with student complaints of sexual misconduct, and then use this to pressure the institution to change, with the possibility of reporting the institution to the OfS if they don’t make improvements. This will finally give some leverage to activists and campaigners trying to find ways to make institutions take action. However, there are limits to this approach. First and perhaps most worrying for those of us concerned with staff sexual misconduct, postgraduate students – who are most likely to be subject to staff sexual misconduct – tend not to be linked in to their students’ union. This means that systemic breaches relating to postgraduate complaints may not be gathered. Secondly, given that the OfS is unable to intervene in individual cases, as per their legal remit, we need more clarification as to what counts as ‘individual cases’. If there are a group of student complainants making complaints against several staff members, in order to address a culture of harassment within a department, would that count as an individual case or a systemic issue? I think the latter, but there may be wiggle-room here for the OfS to eschew responsibility. Finally, relying on notifications rather than requiring institutions to report proactively to the OfS does put a lot of work onto activists, unions, and students and staff within institutions to gather data on breaches. It also relies on those most affected, survivors and groups most vulnerable to bullying and harassment, to do the monitoring and notification work on behalf of OfS, and instead of their institutions. If institutions were required to report regularly, this would focus minds and lead to a faster pace of progress. Nevertheless, this approach does open up mechanisms for holding institutions accountable more actively – assuming that the OfS proves to be willing to receive and act on notifications.

One point that is totally absent from the consultation document is the question of who will watch the watchers. To this end, we would welcome information from the OfS as to what they will do with the notifications received. We suggest that a public data reporting approach would be appropriate, involving the OfS reporting at least annually on the number and type of ‘notifications’ received, and the proportion of these that have been acted on, and the types of actions taken. The number of notifications received for each HEI should be included, in order to build transparency and accountability for individual institutions. This will add a layer of much-needed accountability to the sector by enabling a process for students’ unions and other groups to gather and submit data evidencing where institutions are systematically failing to follow the statement of expectations. This level of public transparency is crucial for starting to restore faith in the HE sector following several years of media reporting and research findings showing that institutions are failing to safeguard students from sexual misconduct.

Finally, and perhaps the most important point: a criticism made by Rachel Fenton and Janet Keliher of the consultation document is that there is already plenty of evidence that HEIs have failed to address sexual harassment since the 2016 Changing the Culture report, but despite this institutions are being given two more years to improve before penalties are applied. I wholeheartedly agree with this criticism. The OfS language in the consultation document is effectively ‘maybe we’ll regulate a bit more actively in two years’ time’. As an activist in this area who has worked on two reports gathering substantial amounts of evidence as to the failures of institutions to deal effectively with sexual misconduct, I am now seeing years stretching out in front of me of gathering and publishing more evidence, in the vain hope that at some point it will be deemed to be sufficient for robust action. In the absence of a largescale national survey (such as Australia and the US have carried out), how much evidence is going to be sufficient to convince sector leaders that systemic change is needed?

 Anna Bull and Tiffany Page, 6 March 2020