Sexual misconduct in universities: Punishment must be based on principles, not guidelines

There were over 700 allegations of sexual misconduct in United Kingdom universities during the past academic year, according to a BBC report in September last year. 

A University of Cambridge undergraduate was sent inappropriate and sexual messages by her supervisor. When she reported it, she was warned that she could face harassment charges if she told anyone else. Her complaint against the supervisor was upheld. 

His punishment: To write a four-sentence letter of apology. He was allowed to remain at the university.

In 2015, Brock Turner, a Stanford University undergraduate and star swimmer, raped an unconscious girl.  

His father argued for probation rather than imprisonment, stating that jail time would be “a steep price to pay for 20 minutes of action out of his 20 plus years of life”.  

Turner was sentenced to six months’ imprisonment (of which he served three) and three years’ probation.  

There was public outrage at the sentence and the sentencing judge lost his job. The victim, Chanel Miller, released her memoir "Know my Name” in September 2019. Her victim impact statement is freely available on the internet.

In August last year, the National University of Singapore (NUS) established a Victim Care Unit to support victims of sexual misconduct in reaction to the furore over the lenient penalty imposed on a voyeur who filmed undergraduate Monica Baey in the shower of Eusoff Hall.

His punishment: A letter of apology, one semester suspension and prohibition from entering Eusoff Hall.

Her exposure of the totally inadequate response to the offence provoked a reconsideration of the university’s approach to such incidents. Guidelines were subsequently issued for disciplinary cases involving sexual misconduct.

Sexual misconduct in universities is a common phenomenon worldwide. The authorities’ response is often completely inadequate.

In the case of NUS, the new Sanctions Framework stipulates a minimum one-year suspension for sexual misconduct cases heard by the Board of Discipline (BOD) and Disciplinary Appeals Board (DAB). This “must be adhered to and imposed by the BOD and DAB”.

Presumably the other universities and institutions of higher learning will be considering similar guidelines.

Unfortunately, merely listing various types of misconduct with guidelines for sanctions is insufficient. 

Sexual misconduct is a much more complicated matter. A student punished for sexual misconduct may challenge the sanctions by applying for judicial review. Given the increase in general litigiousness in our society, it is a question of when, not if.

A judge conducting a review does not substitute his opinion of what the appropriate sanction should have been for that of the disciplinary tribunal. 

His role is to ensure that the accused has had a fair hearing and that the tribunal has not acted arbitrarily. Therefore the tribunal must be able to justify the sanctions imposed as a matter of principle, rather than as a simple exercise in following guidelines or benchmarks. 

Guidelines can never be detailed enough to cover every possible situation. They tend to harden into rules that are applied without sufficient thought. 

The imposition of sanctions must be based on principle and not just guidelines.

THE PRINCIPLES

There are five principles to be considered when imposing sanctions:

(a)    Denunciation, that is, the signalling effect of the sanction

The lower the punishment, the less serious the offence appears to be. In the Brock Turner case, the sentence for raping an unconscious girl was six months’ imprisonment and three years’ probation. This signals that rape is no big deal.

The principle of denunciation is very important in sexual misconduct cases. Even if no actual physical harm is caused, it may be necessary to impose a sanction of some sort to emphasise that such behaviour is not acceptable in our society.  

There are many societies in the world where harassment of women or even rape are considered to be normal and of little consequence — the characterisation of rape as “20 minutes of action” by Brock Turner’s father being an egregious example.

Brock Turner, the former Stanford University swimmer convicted of sexually assaulting an unconscious woman, leaving the Santa Clara County Jail on Sept 2, 2016.   Photo: Reuters

Some behaviour does not cross the line for criminality but should be denounced as unacceptable. An example is the Warwick University “rape chat” scandal, in which certain Warwick undergraduates exchanged Facebook messages expressing the desire to rape named female classmates.

There must be some signal that such behaviour is not to be tolerated.

(b)    “Retribution”

This is often misunderstood as vengeance; it is not.

The principle of retribution means that there must be some punishment for antisocial acts.  

Most people’s sense of justice is outraged when a miscreant is let off without adequate punishment. This leads to lynch mobs which take it upon themselves to punish the offender; for instance, so-called “honour killings” in which the male relatives of a woman whom they feel has been dishonoured decide to mete out their version of justice.  

While there have been no similar extreme incidents in Singapore, in the internet age we have seen online lynch mobs. Sparked by a sense of moral outrage, these computer-chair vigilantes harass the perpetrator. 

This happened to Nicholas Lim, the person who filmed Ms Baey in the shower. To her credit, she appealed for the online bullying to stop.

Retribution means making the punishment fit the crime. It is crucial to make a distinction between “victimless” misconduct and misconduct that affects an identifiable victim.  

For instance, online discussion of how best to conduct a campaign of upskirting is victimless. Since there is no identifiable victim, such behaviour might be punished with a relatively light sentence. But actually taking upskirt footage of females on campus is another matter.

In this case, a failure to impose a serious sanction would likely result in outrage. The victims, their relatives and friends must feel that justice has been done and that the perpetrator has not gotten away with it.

Where there is an identifiable victim, it may be useful for the disciplinary tribunal to interview her and ask for an impact statement.  

Victims often find it cathartic to be able to express their feelings. The statement may be shown to the perpetrator with the victim’s consent, to ensure that he has a fair opportunity to comment.  

This has to be done sensitively, so that the process does not inflict more pain on the victim by questioning her on her experience in an offensive way.  

However, the victim should not be allowed to have direct input into the actual sanction, to avoid the Shylock-syndrome of demanding a pound of flesh. The willingness of a victim to forgive the accused would also be a factor to be taken into account.

(c)    Deterrence, specific and general

Any parent who does not subscribe to a totally permissive approach to child-rearing will understand specific deterrence. 

The child misbehaves; there must be punishment so that he does not repeat the bad behaviour. The punishment must hurt otherwise the sanction is useless.

In the context of sexual offences, a sanction like writing a letter of apology is derisory. Forced apologies are useless. It leaves the victims unsatisfied and does not deter the perpetrator from repeating his repugnant behaviour.

General deterrence implies a sanction sufficiently severe to ensure that no one contemplates such behaviour for fear of the consequences.  

The ultimate sanction of expulsion should be imposed in an appropriate case — rape or use of force to seriously outrage modesty for example. 

The punishment should be publicised as there is no point in having a secret sanction if the object is general deterrence.

(d)    Protection of the public

This is the overriding concern when dealing with sexual offenders. In a university context, protection of the public means barring the perpetrator from all or part of the campus.  

A flasher who exposes himself to girls may cause no physical harm but psychologically it will make them afraid to go out. 

One of my classmates was confronted by a flasher when the Law Faculty moved to Kent Ridge four decades ago. She was so shocked she reacted by laughing. He was never seen again. 

Not every flasher is so easily deterred however. When caught, it may be necessary to bar him from the vicinity of hostels or even the whole campus for the peace of mind of the female residents.

(e)    Rehabilitation

It is often said that rehabilitation is the dominant consideration when dealing with young offenders, who should be given a chance to reform.

This often leads to woolly thinking, where the perpetrator’s interests are elevated to become the decisive factor.

It should be remembered that if a rapist’s future prospects are destroyed by his behaviour, that is entirely his own fault. It is not a ground to let him off lightly, as in the Brock Turner case.

In a university context, the only meaningful rehabilitative sanction is community service so that the offender redeems himself by giving back to society.

“Probation” merely amounts to letting the offender off with a warning, something that will be unsatisfactory from the point of view of denunciation, retribution, deterrence and protection of the public.

AVAILABLE SANCTIONS

A varied range of sanctions should be available taking into account the principles set out above, not just expulsion and suspension.

(a)    Expulsion: For protection of the public, retribution and general deterrence

This is the ultimate sanction and the one most likely to be challenged in court. Appropriate for the most serious forms of sexual misconduct like rape or aggravated outrage of modesty.

(b)    Suspension: For protection of the public, retribution, general deterrence, specific deterrence and denunciation

The length of suspension should vary according to the type of sexual misconduct.

A mandatory minimum one-year suspension is too blunt an instrument. Putting a hand up a girl’s skirt or stripping her naked both amount to outrage of modesty, but obviously the latter is more heinous.

The same sanction cannot be imposed for both. The punishment must fit the crime.

(c)    Exclusion from all or part of the campus — for protection of the public, retribution, denunciation

This is appropriate where the accused has trespassed into hostels to peep at girls, for instance.

(d)    Fine — justified on grounds of retribution and specific deterrence

A fine should be used to compensate the victim for psychological and emotional injury. Thus, for example, where there has been a use of force to outrage a girl’s modesty, some monetary compensation should be paid to the victim. 

(e)    Reprimand forming part of the official record

This may be sufficient where the misconduct is not too serious but must be denounced as unacceptable.

(f)    Public censure to denounce the conduct

There may be instances where it is sufficient to merely denounce the behaviour and leave it at that; ragging with sexual overtones for example. It can be coupled with a condition that re-offending will lead to the imposition of a more severe sanction.

(g)    Community service

This allows the accused to redeem himself by doing good, even if only under compulsion. 

AN ISSUE OF MESSAGING

Sexual misconduct cannot be totally eliminated. The change in sexual mores, greater propensity to consume alcohol, closer proximity of males and females in hostels — all of these mean that we are likely to see more rather than fewer cases of sexual misconduct in university.  

Often a perpetrator may not actually realise that he is doing anything wrong, having been brought up in a social milieu where macho men consider women to be playthings.  

Ultimately the issue is one of messaging — that such behaviour is unacceptable in our society, whatever the state of other societies may be.   

Libertarians may decry this as puritanical, smacking of a nanny state. But hoping things will get better by themselves is not an option. 

Remember the old adage: If you have a son, you worry about one boy. If you have a daughter, you worry about all the boys.

ABOUT THE AUTHOR:

Walter Woon was formerly Attorney-General of Singapore and currently the David Marshall Professor of Law at the National University of Singapore.