The government is to consider the creation of a new offence to criminalise students who buy essays and pass them off as their own, otherwise known as ¡°contract cheating¡±.

The goal of reducing cheating at universities is laudable, but the nuclear solution of criminalisation would represent a backward step. The only winners would be lawyers.?

The emperor in Gilbert and Sullivan¡¯s The Mikado explained ¡°my object all sublime/I shall achieve in time/To let the punishment fit the crime¡±. Thus he decreed that flirting be a capital crime, punishable by decapitation.?

Criminalising students who cheat would impose a punishment that ill fits the crime.?

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In my experience as a former lecturer and barrister who represents students accused of misconduct, most students cheat because of a lapse in judgement, stemming from academic incompetence, language problems, laziness, ignorance, immaturity, parental pressures or low self-esteem.??

Existing sanctions, ranging from warnings to expulsion, are sufficient punishment. For most students, expulsion from university is already a life-changing sanction. To some, it puts an end to their ambitions of working as a doctor, lawyer, engineer or other professional. To further brand these students with a criminal conviction would be disproportionate.??

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For older folk quick to shout ¡°off with their heads¡±, we would do well to remember what we were like as university students when blessed with perhaps less wisdom, and prone to more errors of judgement than we are now.?

There are also logical difficulties.

If contract cheating becomes an offence, why not traditional cheating, such as copying from articles, bringing a crib sheet into an exam or writing notes on the palm of one¡¯s hand? What are the morally salient differences between these academic sins and contract cheating??

Making contract cheating a criminal offence would offer a few advantages. It may dissuade some students from using essay mills, although it may lead them to other non-criminal methods of cheating.??

Students would also get a proper hearing, in front of qualified and independent judges or magistrates, with the criminal standard of proof (¡°beyond reasonable doubt¡±) rather than the amateurish system presently in place in many universities. At the moment, there are dubious investigations with poorly trained staff, student advisers and adjudicators. In my experience, when students are charged with misconduct, they are assumed guilty until proven innocent. It should of course be the opposite.

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These advantages, however, are outweighed by the injustice of criminalising and stigmatising thousands of young adults. In 2011 to 2012, approximately 16,000 students were found guilty of academic misconduct.?

The solution, as others have suggested, is to create assessments that make it difficult for students to cheat. These may be more time intensive in the short term, such as oral examinations, but they would save time dealing with allegations of cheating and the subsequent investigations and appeals.?

Another solution, less palatable to the university¡¯s bean counters, is to reject the applications of students who are not intellectually or linguistically suited to the course. Those who cheat tend to struggle academically. Some have such poor language skills that I barely understand their emails.?

To the frustration of judges, there have been more than 3,600 new offences in English criminal law since 1997. Cheating at school or university exams should not be added to that list. Although morally wrong and, in serious cases, deserving of expulsion, it does not threaten to a sufficient degree the well-being of society to justify being made a crime.??

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The Mikado¡¯s principle of letting the punishment fit the crime was right, but like a government who imposes a criminal conviction on misguided university students, he misunderstood both the crime and the punishment, failing to attain the ¡°object all sublime¡± to which he aspired. Let us hope the government does not make the same mistake.?

Daniel Sokol is a former lecturer in medical ethics and law and a practising barrister specialising in higher education law and clinical negligence.

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