Affirmative Consent law reflected in revised Sexual Misconduct policy

The University’s Student Sexual Misconduct Prevention and Response Policy and Procedures have been revised to reflect recent changes to the law in NSW.

Following the Australian Human Rights Commission’ 2017 ‘Change the Course’ Report, Macquarie introduced a best-practice stand-alone policy to address reports of sexual assault and sexual harassment made about our students. The policy was introduced in 2019 and called the ‘Student Sexual Assault and Sexual Harassment Policy’.

Our revised Policy and Procedures are the result of extensive consultation and include the introduction of the ‘affirmative consent’ standard to the law of sexual assault.

Dr Kate Gleeson, Respect Now Always Manager, says affirmative consent reflects the idea that consent must be sought and gained for every sexual activity, and consent can be withdrawn at any stage of a sexual interaction.

The sector best-practice convention of naming relevant University policies ‘sexual misconduct’, rather than ‘sexual assault and sexual harassment’, has also been applied to the revised policy.

The use of ‘Sexual Misconduct’ reflects;

  • Emerging case law, which directs that Universities should not be seen to make determinations of criminal or civil offences.
  • Sexual harassment and sexual assault exist on a continuum of abusive behaviours informed by attitudes of disrespect and discrimination; although they represent distinct offences legally, each are perpetrated in this context of the unequal treatment of others.
  • Sexual harassment is a serious abuse of power with grave consequences; signalling that it is treated by the University in the same manner as sexual assault sends a strong message that this behaviour is not tolerated.
  • Use of the term ‘sexual harm’ was also discussed with Staff and Student Advisory groups. Strong recommendation of the Student Advisory group was that ‘sexual misconduct’ is preferred.
  • The language of ‘misconduct’ better aligns with our disciplinary processes and procedures outlined in the Student Code of Conduct and the Student Discipline Procedure. Explicitly aligning with these Codes and Procedures enhances procedural fairness.

The change of title to include ‘Prevention and Response’ is intended to emphasise that our responsibilities include both prevention and responses to allegations of sexual misconduct.

During the review process, the Policy and Procedures were also revised to simplify some sections and align with other Macquarie University policies and procedures such as the Complaints Resolution Policy and Procedures for Students and Members of the Public.