Being a university student is sometimes described as the best years of one’s life – full of opportunity, education and freedom. Unfortunately for some, the experience is not a positive one.
This week, the Australian Human Rights Commission (the Commission) released a report on sexual assault and harassment of university students. The report details disturbing instances of sexual assault and harassment. The impact on survivors has at times been catastrophic. Most concerning, however, is the response by some universities and colleges to reports of abuse.
Sadly, this is an old story that has been re-told over generations.In 1977, 18 year-old student Annette Louise Morgan was found bashed, raped and murdered on St Paul’s Oval on University grounds. Police believe that her killer used his fists and hands to strangle her.
The then warden of St Paul’s College told the media of the shock and devastation he felt at her death. But just weeks later, St Paul’s College students awarded the annual “Animal Act of the Year Award” to one of four male students accused of gang-raping a student from The Women’s College. Nobody was charged. It was business as usual for the College.
Four decades on and little has been done.We have heard appalling reports of behaviour at St Paul’s College, where ‘rooting’, ‘slaying’ and ‘harpooning’ are some of the ways that residents describe sexual intercourse with women. Female students have spoken out against the derogatory statements but it would appear that little is being done to reprimand the male perpetrators of this reprehensible language.
These are not isolated events.We have been consulted by many people who have been subjected to sexual harassment, bullying and sexual assaults while studying at Australian universities. These young people are suffering significant psychological and psychiatric conditions as a result of what they have been subjected to.
In 2016, the Commission conducted a survey to gather data on the number of sexual assaults on university campuses for its report. The Commission received 39,000 responses, after a random sample of 60,000 students across 39 Australian universities that were invited to take part. Two thousand submissions from people who had experienced sexual assault or harassment while at university were also received.
Channel 7’s Sunday Night program recently reported that out of 575 sexual assault complaints made in the past five years to Australian universities – 145 of which were rape – only six resulted in expulsions. These figures suggest that sexual assault and rape are not being treated seriously enough.
The Commission’s report raises questions about the duty of care that universities owe to their students and what recourse victims of on-campus sexual assaults may have against the institutions.
Liability of universities?The university / college - student relationship does not, by itself, impose a duty upon the university or college to protect students from the actions of third parties.
Colleges and universities are unlikely to be held responsible when events are unpredictable or unforeseeable. However, if the college or university is aware or ought to have been aware of a student’s propensity to commit indecent acts (such as sexual assaults, sexual harassment or bullying) and failed to stop it, they may be held liable for failing to protect other students from further acts by the perpetrator.
The release of these recent reports demonstrates how prevalent sexual assault and harassment are at certain university colleges. It may be argued that, considering this, these colleges should be aware of the risk of assaults and harassment to its students, and therefore has a duty to students to protect them from this type of harm.
In terms of proving the breach of the duty of care owed, relevant questions may include:
- What policies did the institution have in place in relation to sexual harassment, sexual assaults, bullying, and discrimination?
- If there was a policy in place, did the institution follow these procedures and policies?
- Were staff trained adequately to respond to allegations of sexual assault/harassment and bullying?
- Were students aware of the policies and their rights?
- Were students aware of what they should do if they were subjected to such behaviour?
- Were students educated in relation to what is acceptable and unacceptable behaviour?
- Were students aware of what constitutes proper consent?
The institution's response to allegations is also relevant.How an organisation responds to a complaint of sexual assault can be critical in terms of the impact that it has on the victim. The response can minimise the psychological harm or, if the response is not appropriate, can lead to further psychological harm and damage.
Some claims for injury arising from sexual assault in a university /college context attribute a greater proportion of the harm suffered to the institution's response to the assault, rather than to the assault itself.
Relevant questions in terms of determining a breach of duty of care by a college or university after a student has disclosed they have been a victim of sexual assault may include:
- Was the incident properly investigated?
- Was the matter referred to Police?
- Was the victim supported and provided with appropriate assistance, counselling and care?
- What action did the university take to ensure the victim suffered no further damage through contact with the perpetrator?
- Was the perpetrator appropriately dealt with by way of counselling, training or sanctions?
- Did the institution make comments or demonstrate actions that could be seen as blaming the victim for the assault?
- What damage or injury has been caused by the institution’s response, as distinct from the actual assault?
Universities and colleges now have a chance to get things right.Now we know what a widespread and devastating impact sexual assaults and harassment is having in our universities and colleges, it is important that these institutions act to not only provide assistance and redress for survivors of abuse, but also to acknowledge and change the culture where necessary to ensure further abuse does not occur.
I was heartened by reports that Australian universities are committing funding for counselling services for the many survivors of assaults on campus who are coming forward to tell their story and seek help. Universities need to offer adequate assistance to ensure that these students’ mental health is supported and treated with the same importance as a university degree.
We also need to see institutions taking a hard-line stance on assaults, bullying and harassment that is causing devastating damage to so many of our young people. The culture in many of our universities needs to change. The only way that meaningful change will occur is through universities and colleges accepting there is a problem.
The time to act is now. Acknowledge that there is a problem and commit to changing the culture. Our young people are depending on it.
Written by Shine Lawyers. Last modified: September 26, 2018.