The McKenna case
The case involved a Scottish student called Ciaran McKenna who won a scholarship at Duke University in North Carolina. McKenna was the subject of a rape allegation made by a female student he had had a sexual encounter with.
The female student raised a complaint with Duke University which was considered by a student conduct panel at the institution.
The panel decided to impose a suspension on McKenna, but he raised an appeal citing problems with the way the panel had reached its decision, including that it had failed to correctly apply the 'reasonable person' standard that was set out in Duke University's sexual misconduct policy. That policy stated that "the perspective of a reasonable person will be the basis for determining whether a respondent knew, or reasonably should have known, whether consent was given", according to a report by the Duke Chronicle, the university's independent news outlet.
Despite the appeals panel finding errors in the original panel's hearing of the case, it returned the case to the student conduct panel for re-hearing. McKenna challenged this process but his bid for the case to be dismissed at this stage was rejected. The second panel subsequently imposed a six semester suspension and placed McKenna on disciplinary probation for the remainder of his undergraduate career. He was also required to complete a therapy course for sexual offenders to be eligible for re-admission, the Duke Chronicle previously reported.
McKenna lodged an appeal against the disciplinary action imposed on him before a county court. That court issued a permanent injunction barring Duke University from suspending McKenna from his studies over the sexual misconduct claims. A daily newspaper in North Carolina, the News & Observer, reported late last month that McKenna and the university had reached settlement to end their dispute. The Times in the UK subsequently reported it was a six-figure settlement. Earlier this week, a number of UK newspapers, including The Times, published articles featuring comments from McKenna about the impact he said the case has had on him.
Although the case concerns a US university, there are some cautionary lessons for UK universities to learn.
In 2016, Pinsent Masons, the law firm behind Out-Law.com, assisted Universities UK in publishing guidance for UK universities on handling cases where students were accused of serious misconduct which could also constitute a criminal offence.
The guidance we produced updated previous, sector advice prepared by the predecessor to Universities UK (UUK), the Committee of Vice-Chancellors and Principals (CVCP). The CVCP's guidance, known as the Zellick report, had been in place since 1994.
UUK's decision to update the Zellick report guidance came after a number of groups, including the National Union of Students and the End Violence Against Women Coalition, raised concerns that the guidance was out of step with the present legal landscape in which universities operate. In particular, it was argued that the Zellick report did not reflect subsequent statutory obligations created by the Human Rights Act and Equality Act.
Matters came to a head in a judicial review case involving Oxford University where it became clear that many universities had adopted blanket policies not to investigate matters where a police investigation had or was taking place. This approach had followed a Zellick report recommendation that universities be careful not undertake any disciplinary action in cases where the alleged misconduct could also constitute a serious criminal offence. The view expressed in the Zellick report was that such matters could only be properly dealt with by the police and so if the victim decided not to report the incident to the police or if the police decided to take no action then that would be an end to the matter.
These concerns preceded more recent '#MeToo' campaigns which followed similar concerns being raised about the handling of sexual harassment allegations in the UK parliament and also the entertainment industry.
The present guidelines now provide a framework to assist universities in understanding their obligations and advice on how to handle these sensitive and complex cases, whilst ensuring that the competing rights of the reporting students and the accused students are protected and upheld throughout. The guidance still reminds universities that the criminal process must take precedence in any case where the alleged misconduct constitutes a criminal offence.
In March this year, UUK released a report containing an assessment of the strategies deployed to tackle sexual misconduct, hate crime and harassment affecting university students. The report suggested that universities are making progress but that there is still, in many cases, further work to be done. It referenced the work done by most higher education providers to review and update their disciplinary processes and procedures to accord with our new guidance, among other things. A subsequent publication followed in April with advice on how to implement case management systems to deal with serious cases.
However, there is still pressure from student groups for universities to do more to encourage students in reporting allegations and to provide more support to reporting students throughout any related any criminal or disciplinary process.
Students at Cambridge University wrote an open letter to the university's management highlighting their concerns that victims had to satisfy the criminal standard of proof – beyond reasonable doubt – to be successful in disciplinary cases heard by the university. This, they argued, discourages victims from reporting as they felt that the university was unlikely to decide a case in their favour due to the high evidential hurdle required. The students wanted the standard of proof necessary to succeed in civil courts – on the balance of probabilities – to apply instead. That approach would accord with the non-statutory guidance we developed.
Achieving a balance
While universities need to do more to create a culture where reporting students believe that they will be properly supported and their disclosures properly investigated, they must also be mindful of competing, but equally important, duties owed to accused students, when investigating allegations of serious misconduct.
The McKenna case, highlights the difficulties which universities face and the significant reputational, financial and legal risks, if they fail to strike the correct balance or cannot demonstrate that appropriate safeguards have been put in place. The McKenna case also has significant similarities to the case which was the catalyst for the Zellick report, over 25 years ago.
In 1992 a student at Kings College London (KCL), Austen Donellan, was accused of rape and suspended by the institution. The reporting student was unwilling to refer the matter to the police but requested that KCL institute disciplinary proceedings. Donellan reported himself to the police due to a lack of confidence in KCL's internal process. Donellan was subsequently acquitted and then recovered significant damages from KCL.
In both cases the institutions had acted entirely appropriately in instituting disciplinary proceedings following the receipt of allegations of rape from a reporting student, but were unable to show that proper safeguards had been put in place to ensure that the investigation and determination of allegations was fair and impartial.
The risks highlighted by the McKenna and Donellan cases are particularly acute in cases where a university is asked by a reporting student to institute a disciplinary process either in a case where the student is unwilling to report to the police or where the police decide there is insufficient evidence to proceed.
In these cases the university must be mindful of the fact that it is being asked to determine an allegation of serious misconduct made by one of its students against another, and the fact that any finding could result in a significant sanction. Therefore, throughout the process the university must be able to evidence that it has taken account of the interests and welfare of both its students and treated them fairly and equally throughout.
Similar concerns apply to any decision to use precautionary measures, such as a suspension, pending the outcome of an investigation.
Precautionary measures are intended to be neutral acts, but can often have significant implications for an accused student, if the terms of any measures are such that they preclude that student from continuing to engage with the university for an extended period, and can often seem like a sanction. As a result universities must take care to investigate all options and only use precautionary powers, such as a wide ranging suspension, if risks have been properly assessed, and there are reasonable grounds to suspect that there is a high risk that potential harm to students or the integrity of any investigation could arise, if such a measure is not imposed for a reasonable period.
Therefore, while universities must clearly do more to ensure that cases of serious misconduct are reported and investigated, care must be taken to ensure that any internal processes are developed in line with the present guidance. This includes the need to ensure that safeguards are in place and all students are treated fairly and equally. Without such safeguards universities are at risk of perceived conflicts and significant reputational, legal and financial risks should the integrity of their processes be challenged.
Julian Sladdin is a university dispute resolution expert at Pinsent Masons, the law firm behind Out-Law.com.