In a landmark decision, on 5 October 2023 the County Court held that higher education institutions owe a duty of care to carry out reasonable investigations relating to reports of sexual assault. The Royal Welsh College of Music and Drama were held to have been negligent towards two students, failing to properly investigate or respond to their allegations of sexual and physical assault by the same male student. This is significant as it represents a new form of duty of care higher education institutions may now be held to.
Sydney Feder and Alyse McCamish were both students at the Royal Welsh College of Music and Drama. In 2017, McCamish reported to the College that she had been assaulted by a student on several occasions. In 2018, Feder reported that she had been assaulted by the same male student. Feder stated this has not been her only negative experience at the College, stating that she felt “unsupported and very uncomfortable” for most of her course, with inappropriate contact between both students themselves, as well as students and staff, occurring on numerous occasions.
Upon reporting, the two students reported feeling “unsupported at best, at worst dismissed”. Neither student was informed about the ability to take internal disciplinary action, nor were the disclosures dealt with as official complaints, with several failures to take appropriate safeguarding action.
An investigation followed, which concluded that there was “insufficient evidence to come to a view on the allegation of sexual misconduct” in McCamish’s report, but that there was evidence of “inappropriate touching” in the case of Feder. The male student was told that he would be formally warned, suspended for two weeks, and required to agree to a reintegration plan. The suspension was reduced to one week, with the formal warning never being actioned. The male student also remained on campus throughout.
Later, the male student was allowed to have a public statement read to the year group denying the allegations. Additionally, the male student was authorised to attend the shows in which McCamish was cast. She was not warned until a few minutes before taking the stage, having previously requested to be both moved from his classes and for him not to attend these live performances. After these incidents, McCamish formally withdrew from the College, citing “emotional distress/trauma amplified by RWCMD and the student who sexually assaulted me being allowed to interfere with my education”. Feder left the College in 2018 and became withdrawn and sought counselling in 2019.
During the trial, other former students came forward as witnesses to speak of their accounts of having been assaulted or raped whilst studying at the College, and the treatment they’d experienced from the College when they had reported.
Summary of judgment
The Court held that higher education institutions have a duty of care to carry out reasonable investigations when they receive allegations of sexual assault. In this case, the duty was founded on an assumption of responsibility of the College relied upon by the Claimants, with several specific assumptions of responsibility and undertakings made by the College. It was held that this duty of care could, in the alternative, have been made out due to the positive steps taken by the College which could have led to harm. The duty of care as a reasonable higher education provider was to take reasonable care “by taking reasonable protective, supportive, investigatory and, when appropriate, disciplinary action steps and in associated communications”.
The Court recognised the differing standards of care expected between higher education institutions and schools, but nonetheless ruled that the former does in fact owe its students a statutory duty of care. The College’s liability hinged on nine key failures to:
- Exercise the care expected of an institution when framing their conduct policy, by omitting guidance on identifying, defining, and effectively dealing with sexual misconduct.
- Treat the reports properly and provide students with sufficient information regarding conduct policies and internal disciplinary procedures.
- Suspend the male student in 2018, when further reports of incidents with the male student and other students came to light in addition to those of McCamish and Feder.
- Enforce the terms of the later suspension imposed by the Disciplinary Committee.
- Provide separate timetabling and ensuring the future separation of the students.
- Exclude the male student from productions featuring McCamish and enforce the understudy arrangement.
- Provide or arrange any support or counselling.
- Effectively action proper investigations or disciplinary processes.
- Communicate the outcome of the investigation into McCamish’s complaint to Feder.
Along with court costs, the College was ordered to pay £19,000 in damages, with £14,000 being awarded to McCamish and £5,000 to Feder.
This judgment should serve as a call to all higher education institutions to reflect on their strategies for responding to sexual assault and rape allegations. Significantly, Recorder Halford held that in law “it is now recognised that if an institution mishandles an investigation of sexual assault, it is reasonably foreseeable that is likely to cause or exacerbate psychiatric harm”.
We encourage universities to review this judgment and consider what lessons can be learnt. The case presents a number of crucial learning points:
- Clear and comprehensive conduct policies: universities must ensure that there is specific guidance on identifying, defining, and effectively dealing with instances of sexual misconduct.
- Commitment to effective processes: processes dealing with any report or allegation of sexual misconduct must be effectively followed and implemented. This includes measures such as empathetic and well-rounded communication to the victim of their internal and external options, full investigations into the allegations, and further steps where appropriate. Failures to action suggested internal and/or external processes may lead to a claim against a university becoming actionable. All steps taken to aid the victim should be recorded, in order to understand the stage of investigation and action any steps which may need to be addressed.
- Staff training: the ability to understand the complexities of sexual assault and the emotional and physical affects this can have on its victims is crucial to ensuring that conduct policies and practices are effectively actioned. Students should be guided through all the different options available to feel empowered to make the decision which works best for them at such a traumatic time. The importance of victims feeling heard and meaningfully supported cannot be overstated.
With thanks to Winnie Robinson-Fell, a current trainee in the education team, for contributing to this article.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, November 2023