Automatic gag requirements ‘worsen students’ trauma’

Universities exacerbate sexual misconduct complainants’ trauma by saddling them with unnecessary confidentiality requirements which are enforced unremittingly, even after the complaint processes have concluded, according to Australia’s student welfare watchdog.

A probe by the Australian National Student Ombudsman (NSO) has found that gag clauses applied automatically when complaints are lodged can prevent students from discussing the substance, outcomes and even existence of their complaints.

This leaves students feeling unfairly treated and disempowered, risking their “wellbeing and recovery”, as the university takes “ownership of the story”.

A pilot investigation of three universities found that their complaint and misconduct policies did not clearly explain the confidentiality requirements to students, and gag clauses at all three institutions had remained in force even after the complaint processes had been worked through.

Confidentiality provisions at the University of Newcastle and James Cook University (JCU) had “unreasonably” limited students’ ability to choose support people during complaint meetings. And the University of Technology Sydney (UTS) had “unfairly widened” secrecy provisions around its complaint process to prevent a student from discussing the sexual harassment that had aggrieved her.

When it emerged that she had discussed her experience with fellow students, UTS threatened misconduct proceedings against her.

The NSO believes these are not isolated issues, with about half of Australia’s universities attaching secrecy conditions to their complaints processes. “This means that approximately 770,000 students are subject to confidentiality requirements if they make a complaint,” the NSO reported.

“Confidentiality obligations should be reasonable and proportionate, and complaint policies need to be very clear about why, when and how confidentiality obligations apply.”

The NSO launched the investigation last August in response to “stakeholder feedback”, even though it had received just three complaints about confidentiality requirements imposed on students, and reports of gender-based violence had constituted well under 5 per cent of its caseload.

It believed that confidentiality provisions were masking a much higher incidence of sexual misconduct, but universities’ policies were preventing students from coming to the ombudsman. “It can be difficult for people to complain about matters involving serious harm, especially if individuals have already gone through a higher education provider’s complaints process,” a spokeswoman said.

The report says confidentiality clauses can protect complainants from “public criticism or reprisal” and help ensure “procedural fairness” for respondents, but “excessive confidentiality can prevent [those involved] from seeking support [and] cause a complainant to feel silenced”.

The National Higher Education Code to Prevent and Respond to Gender-based Violence, which came into force in January, prohibits non-disclosure agreements (NDAs) that have not specifically been requested by complainants. But the NSO report says confidentiality clauses in complaint-handling policies – which are “not NDAs” because they do not require complainants’ approval – “could be more oppressive” than NDAs “in disempowering a student”.

The report offers seven recommendations for all universities. They include releasing students from confidentiality obligations once complaints processes have concluded, applying confidentiality only to the complaints process and not students’ personal experiences, articulating confidentiality requirements in policies and procedures, explaining the requirements through “plain English written guidance”, and inserting “exceptions” that allow students to enlist health support, legal advice and “external recourse”.

The report gives the investigated universities up to three months to comply with the recommendations, and instructs UTS to apologise for its actions. The three have agreed to most of these demands.

UTS said it had stopped using confidentiality requirements and promised “meaningful consultation” through a “student consultation group” of more than 60 paid students. “UTS is committed to doing better and has accepted all of the NSO’s recommendations,” said deputy vice-chancellor Kylie Readman.

JCU said its confidentiality directions were “protective measures” and “not intended to prevent students from seeking support or discussing their experiences”. The university had agreed to “clarifying amendments” including confirmation that confidentiality provisions “cease” when complaint processes conclude.

john.ross@timeshighereducation.com