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Sexual Misconduct Prevention and Response Policy

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Note on language: This policy contains language and references to forms of sexual misconduct, including sexual assault and sexual harassment. If anything in this policy affects or distresses you, support is available. Refer to the Respect Webpage.

Section 1 - Purpose and Context

(1) This Policy sets out the principles for preventing and responding to incidents of sexual misconduct that occur at, or in connection with, Western Sydney University (University). Sexual misconduct is considered to be connected with the University when it occurs in circumstances described below.

(2) This Policy applies to the following:

  1. all enrolled University students (regardless of which campus or University facility they are attending)
  2. former students and students currently on leave, where the behaviour governed by this Policy occurred whilst they were enrolled
  3. all current staff and affiliates of the University

(3) This policy applies in the following contexts:

  1. on University campuses or other facilities
  2. in virtual spaces (including online forums, communities, and platforms) arranged or facilitated by the University
  3. whilst using University information and communication technology (ICT) resources
  4. at premises in which the University conducts its business, including but not limited to where research, study or work integrated learning is undertaken as part of a University activity, including but not limited to placements, internships, fieldwork, or other type of practicum
  5. whilst students, staff or affiliates are representing the University (e.g., at sporting events, cultural activities, competitions, conferences), University student clubs or whilst on exchange
  6. between a University staff member or affiliate and a University student
  7. between two University staff members
  8. between a University staff member and a University affiliate
  9. University owned, operated or Affiliated Accommodation
  10. at a private venue or residence where both the affected person and the respondent are a student, staff member, or affiliate of the University

(4) Where sexual misconduct reported is outside the scope of this Policy, for example, if not connected with the University, the University will not investigate the matter. Support services and referrals will be offered as appropriate.

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Section 2 - Definitions

(5) For the purposes of this policy:

  1. Affected Person is a person who has been subject to sexual harassment or sexual assault.
  2. Affiliate refers to Conjoint and visiting appointees; consultants and contractors; agency employee; emeriti; members of University committees; and any other person, not being staff, appointed or engaged by the University to perform duties or functions for the University.
  3. Affiliated Accommodation means any accommodation provider who is managing accommodation on behalf of the University.
  4. Affirmative Consent is a free and voluntary agreement that must be present when sex occurs. A person has a right to withdraw consent at any point. Consent to one sexual act doesn’t mean consent has been given to other sexual acts. Affirmative consent means that:
    1. a person does not consent to sexual activity unless they voluntarily said or did something to communicate consent and
    2. an accused person’s belief in consent will not be reasonable in the circumstances unless they actively sought consent by saying or doing something to ascertain consent
    3. a person does not consent to an act just because they do not resist the act verbally or physically
    4. a person does not consent to an act because they have previously:
      1. consented to the same act with a different person or
      2. consented to a different act with the same person or different person. Consent can be withdrawn at any point during the act, whether to the act itself or to the act continuing.
  5. Child abuse material means producing or possessing child abuse material (also known as child exploitation material), or making such material available to another person, is a crime under NSW and ACT law. A child is a person under the age of 16 (although the offences can apply where the person described or depicted in the material is in fact over 16 but appears to be a child). Reports should be made to the NSW Department of Communities and Justice - Child Protection Helpline.
  6. Consent means a person consents when they freely and voluntarily agree to participate in an activity, understanding what they are doing and who they are doing it with. A person can’t consent if they are:
    1. asleep or unconscious
    2. significantly affected by drugs or alcohol
    3. intimidated, coerced or threatened
    4. held against their will
    5. tricked, or under a mistaken belief, about the identity of the other person involved or
    6. lack the capacity to understand what is taking place because of a cognitive impairment, or because they are under 16. It is important to understand that a person might not consent to behaviour even though they were, or are, in a relationship.
  7. Disclosure is where an affected person tells another person about an incident that happened to them, or that they have witnessed or become aware of.
  8. Formal Report is where a formal report of sexual misconduct is made by an affected person (or someone on their behalf) who wants to take the matter through a formal investigation and possible misconduct process.
  9. Notification is either a disclosure or formal report of any sexual offence.
  10. Sexual Assault, under NSW law, means engaging in certain sexual acts (such as intercourse or oral sex) with a person without their consent, when their consent is not known, and when their consent is not recognised as important. Various terms are used to describe behaviour which involves a sexual assault. A term which is commonly used is rape. Sexual assault is a crime. There is more guidance about what may amount to sexual assault available on the NSW Department of Communities and Justice - Sexual Violence webpage.
  11. Sexual touching and sexual acts – sexual touching means touching another person in a sexual way (for example, on a person’s breasts or genitals), or threatening to do so, without the person’s consent. A sexual act means doing something of a sexual nature towards another person without their consent (for example, masturbating in front of another person). Under NSW law both sexual touching and sexual acts are crimes.
  12. Sexually Explicit Photos or Videos means creating or distributing sexually explicit or intimate photos or videos of a person without their consent or threatening to do so. In NSW it is a crime to share or record intimate images or videos without consent. 
  13. Sexual Harassment:
    1. is any unwelcome interaction of a sexual nature that makes a person feel offended, humiliated or intimidated, and which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person would be offended, humiliated or intimidated.
    2. may include physical contact, verbal comments, jokes, propositions, the display of offensive material or other interactions which creates a sexually hostile working or learning environment. Some forms of sexual harassment also constitute a criminal offence and should be reported to the police.
  14. Sexual Misconduct includes sexual harassment or sexual assault, sexual touching, sexual acts, conduct involving child abuse material, making, or distributing sexually explicit photos or videos without consent, or certain other behaviours of a sexual nature.
  15. Victimisation refers to less favourable treatment of a person or people for making, supporting or resolving a complaint, whether that participation was actual, intended or presumed.
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Section 3 - Policy Statement

(6) The University is committed to providing a safe learning, teaching, research and employment environment for all students, staff and affiliates. Sexual misconduct is unacceptable at Western Sydney University and is inconsistent with this commitment and the University's Codes of Conduct.

(7) The University acknowledges that sexual misconduct can involve behaviour by/towards any person regardless of their sexuality or gender. It can occur between strangers or those who know each other, including those involved in a consensual intimate relationship.

(8) The University is committed to the following principles:

  1. preventing sexual misconduct
  2. promoting respectful relationships and behaviour
  3. increasing awareness of support and services available to respond to incidents of sexual misconduct at or connected with the University
  4. encouraging students, staff and affiliates who experience sexual misconduct to seek help and bring reports of sexual misconduct connected to Western Sydney University to the attention of the University and
  5. responding appropriately and effectively to notifications of sexual misconduct, which includes endeavoring to respond in a culturally appropriate and trauma informed way.

(9) The University seeks to prevent Sexual Misconduct and support the wellbeing of its people:

  1. The University will continue to develop and implement a range of prevention strategies that are intended to address the risks to the University community of experiencing sexual misconduct, including for those that may be particularly vulnerable to such risks
  2. The University recognises that it is impossible to completely eliminate the risk of incidents of sexual misconduct in any community. But when such incidents are reported, the University's primary concern will be the welfare of those who are impacted.
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Section 4 - How to Respond to an Incident of Sexual Misconduct

(10) The University has a ‘no wrong door’ approach with regards to making a disclosure or formal report of sexual misconduct. This means that sexual misconduct can be disclosed or reported through any staff member of the University and through any of the means set out in this Policy.  

(11) All staff and affiliates of the University who become aware of actual or alleged sexual misconduct at, or connected with, the University must notify the University through one of the means set out in this Policy.

(12) The University strongly encourages students to make a notification of sexual misconduct at or connected with the University which they experience or become aware of.

(13) Notifications can be made in any of the following ways:

  1. a disclosure or formal report can be made through the Sexual Offences Reporting Portal (SORP) or anywhere in the University where the reporter feels safe to notify. The Portal is the central data collection point for all incidents of sexual misconduct occurring at or connected with the University. Data collected in the Portal is used to improve safety and security for the University community. Where a report is made on the Portal on behalf of someone else, the identity of the subject of the report must not be disclosed, directly or indirectly, without their consent. If consent is not given or the person’s identity is not known (for example, where an incident has been witnessed), a report on the Portal should still be made. Anonymous reports can be made on the Portal, but this may necessarily limit any response from the University.
  2. Contact the University’s Campus Safety and Security – refer to the Campus Safety and Security web page
  3. Make a complaint to the Complaints Resolution Unit – refer to the Complaints Resolution Unit web page
  4. Contact a HR Business Partner in the Office of People (for staff)
  5. Contact the University Student Wellbeing Services – call 1300 668 370 Monday to Friday between 9:00am – 4:30pm (for students)
  6. Contact the Director, Badanami Centre for Indigenous Education
  7. Contact any staff of the University or Affiliated Accomodation

(14) Regardless of which reporting avenue is initially adopted, all will promptly submit a notification to the Sexual Offences Reporting Portal to ensure that the incident is recorded and response made if necessary.  The option remains for information submitted into the Portal to be completely de-identified and anonymous, as may be requested by the affected person.

(15) The University will monitor and respond to notifcations of sexual misconduct submitted to the Portal within 72 hours (other than in the University's annual shutdown period) and offer options for assistance where contact information is provided. 

(16) University responses to those experiencing sexual misconduct will always be supportive of the welfare of persons involved with the objective of facilitating the safety and recovery of those affected.

(17) The University will respect the wishes and confidentiality of the individuals involved and support their choice as to what actions they wish to take. Information will be shared with the knowledge and consent of the affected person and only with those who need to know in order to take any actions.

Police and/or Security Response

(18) If a notification to the Sexual Offences Reporting Portal indicates that there may be an ongoing serious risk to any person, the report may be referred to Campus Safety and Security and/or the Police. Reporters are freely able to report the sexual assault to Police through 000 or NSW Sexual Assault Services.

Person/s Disclosing Sexual Misconduct Decide What They Report

(19) The University recognises that a student, staff member or affiliate disclosing that they have experienced sexual misconduct has a right to decide what information they report and what next steps they may choose to take in response to the incident.  In all cases, the University will endeavour to follow the wishes of the affected person and to provide support including referral to services requested by the affected person.

Sexual Misconduct can be Reported at Any Time

(20) The University encourages the prompt notification of sexual misconduct to maximise the ability to respond effectively. The University understands that a person within the University community who is affected by serious sexual misconduct may choose to go directly to the Police without first contacting a First Responder or other member of staff, or submitting a report to the Sexual Offences Reporting Portal.

(21) The University recognises that the length of time between an alleged incident of sexual misconduct and the making of a report may vary, depending upon a range of factors. Referral services will be offered where appropriate, regardless of the date of the incident being reported.

(22) The time limit applicable to complaints under the University Complaint Management Policy does not apply to reports of sexual misconduct. Where a report relates to an incident which occurred more than 12 months prior to the report, the University may not be able to investigate and/or commence disciplinary proceedings, this is because the ability to discipline respondents normally diminishes over time.

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Section 5 - Investigations

(23) Where a disclosure of sexual misconduct connected with the University is received, an investigation will not be triggered unless the person disclosing wishes to make a report, or in circumstances where the University has a legal duty to undertake an investigation.

(24) When a Police investigation is commenced, the University may need to suspend its own investigation process until it is advised that the Police investigation or prosecution is complete or resolved. Any such temporary suspension will not limit any urgent interim measures that may be necessary, to preserve the safety and wellbeing of individuals.

(25) Any retributive action taken or threatened against a person because of their involvement in reporting or providing evidence in relation to actual or alleged sexual misconduct will result in disciplinary action. In this context, retributive action includes threatening, intimidating, or harassing any person, intentionally interfering with an investigation or hindering the academic or professional progress or career of an individual.

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Section 6 - Confidentiality and Privacy of Information

(26) Information stored in the Sexual Offences Reporting Portal from which an individual’s identity is apparent or can be ascertained is personal information. The collection, storage, use and disclosure and disposal of personal information is governed by the Privacy and Personal Information Protection Act 1998 (NSW). The University will only permit information stored in the Sexual Offences Reporting Portal to be accessed and used by staff who have a need to access and use the information in order to carry out actions and responsibilities described under this Policy.

(27) Personal information will only be disclosed outside the University where:

  1. the disclosure is necessary to prevent a serious and imminent threat to the life or health of the individual concerned or another person or
  2. the individual to whom the information relates has expressly consented to the University disclosing the information or
  3. the University is lawfully authorised or required to disclose the information, for example because:
    1. the information indicates evidence of a serious indictable offence
    2. of a subpoena or warrant issued to the University or
    3. a mandatory reporting requirement arises in regard to children and young persons.

(28) An individual whose personal information has been stored in the Sexual Offences Reporting Portal is entitled, subject to limited exceptions prescribed by the Privacy and Personal Information Protection Act 1998 (NSW), to ascertain if the University holds personal information about them and may request access to that information.

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Section 7 - Guidelines

(29) This Policy supports the University's compliance with the following legislation:

  1. Crimes Act 1900 (NSW)
  2. Children and Young Persons (Care and Protection) Act 1998 (NSW)
  3. Sex Discrimination Act 1984 (Cth)
  4. Anti-Discrimination Act 1977 (NSW)

(30) Related documents are:

  1. Academic Staff Agreement 2022
  2. Acceptable Use of Digital Services Policy
  3. Accident, Injury, Incident, Hazard Reporting and Investigation Policy
  4. Domestic and Family Violence Support Policy
  5. Domestic and Family Violence Support Guidelines
  6. Complaint Management Policy
  7. Critical Incident Guidelines
  8. Death Response Policy (see also Death Response Plan)
  9. Equal Opportunity and Diversity Policy
  10. Gender Equity Policy and Gender Equality Procedures and Guidelines
  11. Professional Staff Agreement 2022
  12. Progression Policy
  13. Sexual Misconduct Prevention and Response - Staff Flowchart
  14. Sexual Misconduct Prevention and Response - Student Flowchart