University Discipline, Sexual Violence and Human Rights: Towards a 'Whole-State' Approach

This paper evaluates the role of the Human Rights Act (HRA) in holding UK universities to account for investigating allegations of student-perpetrated sexual violence, in light of developments in legal accountability for universities in this context in the United States. The paper considers in particular the scope of UK universities’ positive obligations as public authorities to undertake investigations under Art.3 ECHR (the prohibition of torture and inhuman or degrading treatment). In doing so, the paper offers a new doctrinal account of the developing Strasbourg and domestic case-law on the proper ambit of Art.3. It grounds this analysis in a conceptual shift towards a ‘whole-state’ approach to investigating sexual violence. This approach, it argues, may require Art.3 to be interpreted beyond the state’s duty to address sexual violence through the conventional criminal justice system to include the investigatory powers of other non-criminal state processes such as internal university disciplinary adjudication. In turn, the paper proposes that this novel approach would better reflect the impact on students of the systematic under-enforcement of criminal rape laws.