The difference in reporting sexual assault at a UK uni vs a US uni is thousands of pounds

The US has key legislation the UK is lacking

4 years ago | UPDATED 4 years ago

We all have a vision of the stereotypical US college sexual assault. It happens in a fraternity. The victim (usually a woman) is drunk, taken advantage of, filmed and it is mishandled by her university. And then by the legal system. The attacker is upheld as a “promising young man” with a “real future ahead of him” and the woman’s story of, you know, actually being sexually assaulted disappears into nothingness. This vision is probably borne out of several high profile cases, like Brock Turner, or popular culture depictions of similar incidents. It’s a template. Unfortunately, it’s not as simple as this template, and it’s not limited to the US at all. Even muttering the words “Warwick rape group chat” is enough to dispute that. And the examples go on.

The UK is just as bad as the US, and lawyers at McAllister Olivarius can attest to that. McAllister Olivarius represented the victims of the Warwick rape group chat and, more recently, the university professors who sued the University of Rochester in New York for $9.4 million following sexual harassment by a fellow staff member (the female university professors were named as part TIME magazine’s People of the Year in 2017 as a result). Both countries have colleges and universities which continually mishandle sexual assault complaints, but there are some key differences. One is them is a controversial piece of legislation, and the other is hundreds of thousands of pounds in damages.

Kelsey Murrell, who is an Associate at McAllister Olivarius, worked on the University of Rochester case and has helped victims bring suit to both UK and US universities. One of the key differences, she says, is a piece of federal civil rights law called Title IX. Title IX prohibits sex-based discrimination in any school or other education program that receives federal money.

“Pretty much every university has to have a Title IX coordinator,” Kelsey says, “and they have obligations to have this on their website, to make it very clear.” This means every student and staff member knows that when they are sexually assaulted, you go to the Title IX office. The issue is the UK doesn’t have this.

Kelsey Murrell is an Associate at McAllister Olivarius

“A problem we see in the UK is a lot of students not knowing where to go. Like do they go to the Students’ Union? To their advisor? Do they make a disciplinary complaint? And if they’re at Oxford or Cambridge, do they go to their college or to the uni? Or the welfare officer? It’s unclear, so a lot of students don’t really know. And what we see a lot is people having to recount their really painful experiences of harassment or sexual assault again, and again and again, before they reach anyone who can actually handle it. And sometimes it seems like the university doesn’t actually know who is meant to be handling it, so that can have a knock-on effect on confidentiality. It’s also incredibly traumatising for the student, who has to keep reliving the same experience.”

Another difference in reporting sexual assault in the UK versus the US is that British universities tend to treat students as if they are witnesses in their own cases, rather than accusers. As a result, they are excluded from the process and unable to dispute the testimony of their attacker, putting them at an automatic disadvantage in the disciplinary process. “[The attacker] gets a lot more responsibility to respond, so you can see how that would weigh more heavily in their favour. Whereas in the US, the complainant really is at the heart of the process,” Kelsey told The Tab.

However, Title IX is not always a magic fix. “I’m not going to pretend Title IX is wonderful or without flaw, or we wouldn’t be suing them.” The problems behind Title IX are revealed when victims of sexual assault feel their case is mishandled, and get to the unfortunate position where they feel they have to bring suit to their university. This is where Title IX’s flaws come out. In the US, because of this policy, the student has to prove that their university was “deliberately indifferent” to their sexual assault complaint. “This threshold is extremely high,” Kelsey says, “it’s a very high standard to meet. It’s not enough to prove the university was negligent, they have to be deliberately so.” In the UK the burden of proof is much lower, because the legislation comes under the Equality Act in lieu of a Title IX-style law, so it’s much easier to prove a university has neglected their duty of care to a student. And they don’t have to have done it “deliberately”, either.

Unfortunately, while it may be easier to successfully sue your UK uni for this reason, the definition of a “successful” lawsuit is very different from the US. Hundreds of thousands of pounds different. “When it comes to compensation for psychiatric injuries” – which are the damages that victims are usually seeking – “you get significantly less on average in the UK than you do in the US. You’re talking tens of thousands versus hundreds of thousands.” Or, in the University of Rochester case, millions. As well as psychiatric damage, you can sue your university for loss of earnings (which is very hard to prove, unfortunately) and, get this, “hurt feelings” under the UK Equality Act.

But hurt feelings can’t be fixed with a couple thousand pounds, neither can psychiatric harm and nothing can erase the memory of sexual assault. Kelsey reinforces this, saying that money is both her and her clients’ last priority. “No amount of money is going to give you back that one time experience of university. And the last thing I hear people talking about is compensation. It’s more about the subject that they love, but also the years that they should have been making their best friends. And they should have been just having this incredible experience that shapes who they are forever. But that is stolen from them, especially because so many universities delay, delay, delay. So it often ends up taking a third, or a half, or the entirety of their undergraduate career.”

In fact, Kelsey and the other lawyers at McAallister Olivarius routinely joke that they’d love to be put out of a job, which is what would happen if universities fixed their reporting systems. One major flaw that needs immediate correction, she says, is that UK universities treat sexual assault complaints the same as any general complaint, like bullying, or even copying your mate’s essay. “I think universities, and any sort of employer or institution, ought to handle complaints of sexual violence differently than they handle a complaint of plagiarism, right? These are just fundamentally not the same thing. And the fact that they’re trying to use the same policies, I mean, a policy to tackle plagiarism is not going to be fit for purpose for someone bringing a complaint of sexual harassment or sexual assault.”

Kelsey doesn’t want the UK to adopt Title IX, or the US to learn from the Equality Act, she just wants these problems to not get to the courts in the first place. “I’m less interested in a way that gives students an avenue to lawsuits,” she told The Tab, “I’m more interested in what can universities actually do to make sure that everyone’s getting a fair shot on an education. Universities need to be more preventative. That’s what matters.”