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Sexual Assault and Sexual Harassment Response Policy

NOTE ON LANGUAGE

This policy contains language and references to sexual assault and sexual harassment. If anything in this policy has affected or distressed you, you may wish to seek support.

Section 1 - Purpose 

(1) All forms of sexual assault and sexual harassment are inconsistent with the values of the University of Newcastle (University).

(2) The University will not tolerate sexual assault or sexual harassment in any form. The University is committed to providing a safe environment that supports individuals in their study, work, or University endeavours.

(3) The University is committed to a zero harm and zero tolerance position on sexual assault and sexual harassment and to positively preventing and responding to allegations of sexual assault and sexual harassment.

(4) This policy should be read in conjunction with the Code of Conduct, the Workplace Bullying, Harassment and Discrimination Policy, the Sexual Harassment and Sexual Assault Prevention and Response Procedure.

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Section 2 - Scope

(5) This policy applies to all members of the University community and persons who are not members of the University community who want to make a report of sexual assault or sexual harassment.

(6) This policy does not set out the disciplinary process for students or staff alleged to have engaged in sexual assault or sexual harassment.

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Section 3 - Sexual Assault and Sexual Harassment Against a Child under 18

(7) For reports of sexual assault and sexual harassment relating to children under the age of 18, this policy should be read in conjunction with the Child Safety and Wellbeing policy.  Mandatory reporting obligations may apply in relation to this conduct.

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Section 4 - Guiding Principles

(8) The University acknowledges that sexual assault and sexual harassment can occur in workplaces and educational settings. It causes harm to those individuals directly affected, to the University community, and to society more broadly.

(9) The following principles guide the implementation of this policy and procedures:    

  1. Zero Harm and Zero Tolerance: The University prohibits sexual assault and sexual harassment in all its forms by any person to whom this policy applies. This conduct is unlawful, and the University has a legal obligation to eliminate this conduct as far as possible. The University will not tolerate sexual assault and sexual harassment in the University community.
  2. Build Knowledge and Understanding: The University will provide information about what constitutes sexual assault and sexual harassment and foster in individuals a deeper understanding of their role in recognising, preventing, and responding to sexual assault and sexual harassment.
  3. Focus on Prevention: The University's leadership and governance will demonstrate a commitment to taking positive action to prevent sexual assault and sexual harassment through institution wide training and resourcing.
  4. Prioritise Safety and Wellbeing: The University will treat individuals making reports about sexual assault and sexual harassment with compassion and care and with the support of professionals. The University will also provide support to persons who receive sexual assault and sexual harassment reports.
  5. Providing Safe and Consistent Processes: The University will take timely and appropriate action in response to reports of sexual assault and sexual harassment. The University provides an accessible reporting mechanism with guidance on how reports can be made and are managed.
  6. Respect for Complainants: The University's actions in response to sexual assault and sexual harassment will be guided by trauma-informed care. 
  7. Respect for Intersectionality: The University recognises that certain groups within our community are more vulnerable, and people’s sex, gender identity, sexuality, position/status, ability, age, socio economic status, culture, religion, first language, as well as a range of other unique characteristics may also affect their experience of sexual assault and sexual harassment.
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Section 5 - Commitment, Prevention and Training

(10) The University aims to prevent sexual assault and sexual harassment through regular and targeted education, training, and communication to:

  1. strengthen the University's culture to be inclusive, safe, and respectful;
  2. empower all University community members to report sexual assault and sexual harassment; and
  3. empower all University community members to respond effectively to sexual assault and sexual harassment, and behaviours which may contribute to sexual assault and sexual harassment.
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Section 6 - Responding and Reporting

(11) The University will make information and appropriate resources available for complainants, bystanders, and respondents.

(12) This will include information on:

  1. how to report sexual assault and sexual harassment;
  2. obtaining timely and appropriate support;
  3. the process of an assessment of fact; and
  4. potential outcomes and actions. 

(13) Any person, whether they are a member of the University community or not, can report sexual assault or sexual harassment by a former or current member of the University community that has occurred at any time. 

(14) The University provides a process for complainants to report an incident involving sexual assault and sexual harassment for assessment by the University (see Sexual Harassment and Sexual Assault Prevention and Response Procedure).

(15) Complainants of sexual assault and sexual harassment will be supported with a trauma-informed approach. 

(16) The University will support students through the process of seeking adjustment to their studies, where this is requested by the complainant.

(17) The University will support staff with seeking adjustment to work arrangements, where this is requested by the complainant.

(18) Complainants have the option of identified or anonymous contact when seeking support or procedural help with a report. This is set out in the Sexual Harassment and Sexual Assault Prevention and Response Procedure.

(19) To the extent that a report is made about conduct by a former member of the University community or occurs off campus and is not connected with any service or function of the University, the University is limited in the action it can take to respond to the report.  

(20) However, the University will provide complainants with support as set out in this policy and the Sexual Harassment and Sexual Assault Prevention and Response Procedure.

(21) The University will not tolerate victimisation of individuals involved in reported incidents, those supporting those involved or those providing information about a report of sexual assault or sexual harassment. For staff, any victimisation will be dealt with as a disciplinary issue with the Workplace Bullying, Harassment and Discrimination Policy.

(22) Notwithstanding the University's zero tolerance approach to sexual assault and sexual harassment, the University is committed to supporting the welfare of respondents. The University will also provide support to witnesses and others involved in any processes required to consider complaints of sexual assault and sexual harassment.

(23) Reports by staff or students that are not made in good faith or are knowingly false may result in disciplinary action for the complainant.

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Section 7 - Misconduct Process

(24) Determinations of whether or not a respondent has engaged in sexual assault or sexual harassment, and disciplinary action are made as follows: 

  1. where the respondent is a student, under the Student Conduct Rule;
  2. where the respondent is a staff member, under the Staff Code of Conduct, any applicable Enterprise Agreement, and /or the relevant contract of employment; or
  3. where the respondent is a member of the University community who is not a student or a staff member, in accordance with any relevant contract and/or policy (and otherwise as determined by the University in the absence of any contract and/or policy).

(25) For the avoidance of doubt, if a respondent is both a student and a staff member, there may be multiple processes and disciplinary action in respect of the same alleged conduct. 

(26) In these circumstances, the University will determine the most appropriate process and action to be taken.

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Section 8 - Confidentiality and Record Keeping

(27) University staff receiving and assessing reports of sexual assault and sexual harassment will create and maintain appropriate and confidential records in accordance with the Records Governance Policy and the Privacy Management Plan.

(28) The privacy and confidentiality of all parties to a report will be respected to the extent that the University determines this is practicable and appropriate. However, disclosure of information may be required to respond and manage reports effectively, monitor or report matters, and/or to satisfy regulatory and legal obligations.

(29) The University may determine to review or investigate the circumstances of a report. In these circumstances, the University will try to respect the privacy of the complainant, to the extent this is practicable.

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Section 9 - Review 

(30) The review of this policy and its associated procedure will be informed by the Sexual Misconduct Risk and Review Group chaired by the Deputy Vice-Chancellor (Academic) and Vice President.

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Section 10 - Definitions

(31) In the context of this document and the Sexual Harassment and Sexual Assault Prevention and Response Procedure, the following definitions apply:    

Defined Term Meaning
Bystander Means someone who witnesses an incident of sexual assault or sexual harassment or is told about an incident after it occurred.
Complainant Means any person who makes a disclosure or report (see the Sexual Harassment and Sexual Assault Prevention and Response Procedure for the distinction between a disclosure and a report) of sexual assault or sexual harassment to the University. The University acknowledges that those persons who have experienced sexual assault or sexual harassment may identify as a complainant, survivor, victim, discloser, or a combination of these identities.
Consent
Refers to free and voluntary agreement to a sexual act and is defined in the Crimes Act 1900 (NSW)
Every person has a right to choose whether or not to participate in sexual activity and consent to sexual activity is not to be presumed. Rather, consensual sexual activity involves ongoing and mutual communication, decision-making, and free and voluntary agreement between the persons participating in the sexual activity.
Consent involves actively taking steps to find out whether the other persons involved in a sexual activity consent to it. The fact that a person does not resist the act verbally or physically, does not of itself mean that they consent to it. A person is free to withdraw their consent at any time prior to, or during a sexual act, for any reason. A person does not consent to an act just because they consented to:
  1. a different act with the same person; or
  2. the same act with the same person at a different time or place; or
  3. the same act with a different person; or
  4.  a different act with a different person.
Circumstances in which a person does not consent to an act includes circumstances in which the person:
  1. submits to the act because of force, a fear of force, harm of any type or a fear of harm of any type, whether to that person or someone else or to an animal, regardless of when the force, harm or conduct giving rise to the fear occurs; and whether it is, or is a result of, a single incident or is part of an ongoing pattern;
  2. submits to the act because of coercion or intimidation regardless of when the coercion or intimidation occurs; and whether it is, or is a result of, a single incident or is part of an ongoing pattern;
  3. submits to the act because the person is overborne by the abuse of a relationship of authority or trust;
  4. is so affected by drugs or alcohol or any other substance as to be incapable of consenting to the act, or incapable of withdrawing consent to the act;
  5. is asleep or unconscious;
  6. is unable to understand or is mistaken about the sexual nature of what is happening or the identity of any other person involved;
  7. submits because of force or fear of force or harm of any type (including to someone else or to an animal);
  8. is unlawfully detained or held against their will;
  9. is a child / under the age of 16 (in NSW);
  10. is mistaken about the identity of the other person;
  11. mistakenly believes that the act is for medical or hygienic purposes;
  12. in acts involving animals, mistakenly believes that the act is for veterinary or agricultural purposes or scientific research purposes;
  13. engages in the act because of a false or misleading representation that the person will be paid and the act occurs in the provision of commercial sexual services;
  14. is not doing or saying anything to indicate consent;
  15. gives consent and later withdraws consent to the act taking place or continuing;
  16. engages in the act on the basis that a condom is used and another person intentionally removes, tampers with or does not use the condom; or
  17. having given consent to the act, later withdraws consent to the act taking place or continuing.
Enterprise Agreement Means the applicable enterprise agreement, currently either the Academic University of Newcastle Professional Staff Enterprise Agreement 2023 or the University of Newcastle Academic Staff and Teachers Enterprise Agreement 2023 and includes any replacements (if any) of those agreements.
Report Means a report about sexual assault or sexual harassment made in accordance with the process set out in the Sexual Harassment and Sexual Assault Prevention and Response Procedure.
Respondent Means a person about whom a report of sexual assault or sexual harassment is made to the University.
Sexual assault
Refers to any sexual act or touching in circumstances where the person engaging in the act or the touching does not have the consent of the other person to the act or the touching.  
Sexual assault is a crime under the Crimes Act 1900 (NSW).
Touching can be ‘sexual’ because of:
  1. the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or the breasts;
  2. the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or
  3. any other aspect of the touching, including the circumstances in which it is done.
Sexual harassment Is defined in the Sex Discrimination Act 1984 (Cth) and the Workplace Bullying, Harassment and Discrimination Procedure.
Trauma-informed Means an approach that recognises that an unsafe response can escalate and compound trauma and that is focused on maximising the safety, wellbeing and support provided to individuals who make disclosures or complaints by upholding their agency, safety, dignity and wellbeing.
University community Means all staff, Council members, past staff, students, former students, student organisations, alumni organisations and networks, volunteers, partners with whom the University works, campus tenants, visitors, affiliates, contractors and consultants, employees of research institutes, employees of affiliated entities, and employees of independent colleges that are associated or aligned with the University.