How Complaints Can Stall

ESSAY

How Complaints Can Stall
From a Diversity and Inclusion Practitioners’ Perspective

by Vicki Baars

Content note: sexual/gender based violence, rape myth acceptance, criminal and civil processes.

Complaining can be understood as something very broadly defined, sharing your unease with something, or very specifically defined, entering into a formal ‘complaints’ process. A complaint can be a disclosure, a grievance, a report, confiding in a friend or colleague or initiating disciplinary action.

This piece focuses on some of the reasons complaints stall in higher education. I write from 15 years of experience working in higher education and being actively involved in shaping and overseeing complaints processes. During this time, I have seen culture change, however these changes are barely noticeable to the ever-changing student body and are often woefully slow. There are still mountains of barriers for those who venture along a complaint journey; here I pick out just a few.

The human and complex nature of harm
Interpersonal harm is always complex. During my career I have often been asked to give people a quick or simple way to resolve these issues. If there were one, I would have happily provided it but ‘lives are messy and it is rarely possible to say that when Scenario A takes place Action B should follow. Add the complexity of gender-based violence to the mix and you will never have a simple problem to solve. However, institutions often try to solve these issues with lengthy and sometimes overly legalistic and complex processes. The inhumanity of these processes can be in direct conflict with the needs of the human who has complained.

Disclosure and belief
A disclosure is the act of telling someone something has happened to you. This is an act of trust. It can take courage and planning or it can seemingly come spilling out of nowhere. The person sharing may wonder if they can trust the person they are telling; whether the person will believe them, support them or help them. To believe someone is the fundamental first step in creating an environment where people can share their experiences, yet survivors are rarely believed by those working within institutions such as universities. This is not because university administrators are callous individuals, in fact the opposite is often true. From my experience, many people who find themselves in the role of hearing complaints care deeply about victims/survivors and may have been victim/survivors themselves. However there are a few key things that hinder belief, support and action. I follow Clarissa Humphreys and Graham Towl¹ by using the term victim/survivor to acknowledge the complexity of identity and experience; some people will strongly identify with either term and others with both.

Myths about sexual violence are so widespread in society that they often stop people from being believed. The myth that a victim’s/survivor’s behaviour leads to the harm caused to them is believed both by those who experience the harm and those who hear the complaint. The phrase ‘she was asking for it’ comes in many blame-filled guises: you might be drunk, travelling alone or wearing a short skirt. None of these are reasons why the harm took place but they are often used to blame victims/survivors. Amy R. Grubb and Emily Turner found that ‘women who violate traditional gender roles are attributed more blame than those who do not; and women who consume alcohol prior to their attack are attributed higher levels of blame than those who are not intoxicated.’ ² WOMEN AND GENDER NON-CONFORMING PEOPLE BEAR THE BRUNT OF MYTH ACCEPTANCE AND ARE MORE LIKELY TO EXPERIENCE HARM; THEY MAY ALSO BELIEVE THE MYTHS THEMSELVES. THOSE WHO RECEIVE COMPLAINTS ARE ALSO LIKELY TO BELIEVE THESE MYTHS. So if you believe you did something wrong and are telling a person who probably believes you did something wrong, the chances of you bothering to disclose and/or actually being believed when you do are slim, stopping the complaint from being heard in the first place.

Complaints take time, energy and emotional labour to process
Evidencing the complaint, documenting the complaint, investigating the complaint, hearing the complaint, deciding to act on the complaint, implementing decisions from the complaint: all this takes time and resources which are rarely invested in sufficiently by universities. Student and staff complaint handlers in higher education are always in short supply; investigators are usually senior members of staff without specialist training; and decision makers are usually busy people who rarely represent the people whose lives are impacted by the decisions they make.

To confront the realities of sexual/gender-based violence and oppression is difficult. The very nature of gender-based violence can be fear-inducing: it can stall processes and has the potential to cause secondary or vicarious trauma. Those who process complaints face these realities daily. They are confronted with pages upon pages of testimony, ‘allegation’, witness statements, and rebuttals. The risk is not only that they absorb the fear and secondary trauma of engaging with these issues but also that they then unintentionally re-traumatise those who are making the complaint. They can take a trauma-informed approach that may lessen the chances of re-traumatising an individual going through the process. Yet it is rare for the individuals who process complaints to be trained in trauma-informed investigations or decision making. Someone who processed student complaints once said to me that she found that she could not stop imagining the things she was reading happening to her own university-aged daughters. When fear stops processes from being effective, news travels fast and others will avoid taking the same route because people they know have experienced re-traumatisation.

Policy, practice and the balance of probabilities
Many policies are written in a way (usually unintentionally) that makes it actively difficult to complain. You must write out your complaint, speak to an investigator, verify what you said in your complaint. The list goes on. The process is long, tiresome and off-putting to many. Policies are often written firstly to protect the institution, then the rights of the accused, then – sometimes – the people processing complaints and lastly the person making the complaint.

Decisions about complaints in universities are technically made on the balance of probabilities. I say technically because it is rare to see a decision be made on this basis when something is deemed a ‘serious’ allegation. The person making the complaint is unlikely to be well represented in the decision-making process; in student cases, there might be one student representative in the room who is usually so junior to the other decision makers that it is difficult for them to address the power imbalance. Panel members often desire a higher level of proof, especially if they are to decide on a case of sexual assault which may lead to a student or member of staff being removed. Panel members need more training and confidence to make decisions genuinely on the balance of probabilities and not allow the burden of proof to creep up.

The fear or threat of being sued can often overwhelm an institution, slowing down or even halting processes altogether. Students and staff are becoming more litigious and it is nerve-wracking for those who respond to complaints to work in the knowledge that they have to do everything to the letter of the policy in order to avoid being sued, even if something feels intuitively right and supportive of the victim/survivor. How can institutions genuinely protect students when they themselves are at risk?

Closing the case
There are often few routes to resolution for a victim/survivor in a university. After years of university inaction as a result of the Zellick guidance, in 2016,³ universities started to update their policies and processes to deal with issues that may also be a criminal offence. However, these processes usually mirror the already broken criminal justice system. A report by Dr Katrin Hohl, published in 2022, highlights understandable reasons why victims/survivors do not want to go to the police, stating that: ‘in England and Wales, more than 99% of rapes reported to police do not end in a conviction […] cases take, on average, 817 days to reach court, and 63% of cases are closed because the victim has given up on the process and withdrawn from it.’⁴ With disciplinary processes that share similarities with the criminal process it is understandable that people may be put off participating in them too.

Another reason people may avoid complaint or disciplinary processes is that the only available outcomes are punishment-based. Is punishment what victims/survivors are looking for or what universities want to deliver to their students and staff who are perpetrators of harm? In my experience, many victims/survivors will say that they first and foremost want the behaviour to cease, to know that it will not happen again and that the perpetrator will be accountable for their actions. People usually want to heal from traumatic experiences and not subject themselves to long ongoing formalities. Complaint administrators are rarely equipped or empowered to offer victims/survivors an effective alternative to a formal disciplinary. Some institutions are starting to deliver restorative/transformative justice practices but this highly skilled and very time intensive pursuit is yet to deliver for victims/survivors.

There are countless examples of people never hearing what came of their complaint. Institutions hide behind GDPR (the General Data Protection Regulations) and other data protection legislation to limit what a victim/survivor will find out about the outcome of their own complaint.

Universities UK have recently provided strategic and practical guidance to institutions⁵, including measures like No Contact Agreements. This Agreement forbids the perpetrator to contact the complainant and/or restrictions are put in place to help the complainant avoid contact with the perpetrator, for example, by limiting the times the perpetrator can use the library. It is a sad state of affairs when the examples given in such guidance have to spell out that a reporting party might have a legal basis for knowing if a No Contact Agreement is in place so that they can inform the institution if it is broken. The only reason I can fathom that this has been explicitly included is because an institution must have put such an agreement in place and not informed the reporting party/complainant. The mind boggles that anyone thought the person making the complaint would not either need or have a right to know that information. The issue is that some institutions have blanket policies to not share outcomes. If victims/survivors never hear the outcome of a complaint and of sanctions that have been imposed, how will they know that any action was even taken as a result of the complaint they made?

Myth acceptance, fear and secondary trauma, inhumane processes, litigation, the burden of proof, lack of resolution and lack of closure can all stop or halt complaints altogether. These issues desperately need addressing and soon.

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VICKI BAARS is Head of Culture Transformation at Culture Shift where they help organisations to identify, tackle and work to prevent cultures of bullying, harassment and discrimination. Baars formerly worked as Equality, Diversity and Inclusion (EDI) Manager in the Office of the President and Provost at UCL.

Image: Wesley Tingey