PURPOSE
Leaders Institute (LI) provides students with a safe environment which promotes the respect of each member of the LI community. Sexual assault or sexual harassment against any student or member of the LI community is unacceptable. Any reported sexual assault or sexual harassment will be taken seriously, investigated and may constitute misconduct.
The Institute promotes an environment that is free from sexual assault and sexual harassment. In support of that commitment, the Institute will take steps to increase awareness of sexual assault and sexual harassment, provide support for survivors, investigate all reports of sexual assault and sexual harassment, and deal fairly with all parties. Where investigations find that an incident of sexual assault or sexual harassment has occurred the Institute will take appropriate action.
This policy supports the Institute’s framework for dealing with student misconduct, which consists of the student misconduct policy, and the Code of Conduct. Alleged misconduct by staff or contractors is managed under the Institute’s Enterprise Agreement (staff) or contractual agreement.
PRINCIPLES
· The safety and wellbeing of all students and staff is of paramount importance and priority to the Institute regardless of their location or study mode.
· The Institute has zero tolerance for sexual assault or sexual harassment.
· The Institute supports all students and staff who are parties to reports of sexual assault or sexual harassment including facilitating access to relevant counselling, medical, police or legal services.
· The Institute works to promote and encourage a culture of safety and respect.
· The Institute respects the rights of students and staff to privacy and confidentiality.
· The Institute supports the right of students and staff who have experienced sexual assault or sexual harassment to choose whether they want to make a report to the Institute or make an external report.
· The Institute treats individuals fairly, impartially, and with compassion and empathy, while adhering to the principles of procedural fairness in proceedings or decisions under this policy.
· The Institute monitors and reviews disclosures and reports made under this policy to identify patterns of recurring incidents and takes actions to mitigate future risks.
DEFINITIONS
Alleged Offender means a person about whom a complaint of sexual assault or sexual harassment is made as part of a report.
Complainant means a person who makes a disclosure or a report.
Consent means freely and voluntarily agreeing to sexual activity. It also means taking responsibility for ensuring the other person is comfortable and agrees to engage in sexual activity. A person is taken not to have consented to sexual activity if:
· the person agrees because there has been force applied (this includes an express or implied threat of force to the victim/survivor or to another person) or because of a threat to denigrate, humiliate, disgrace or harass the person or another person; or
· the person was unlawfully detained at the time of the activity; or
· the activity occurred whilst the person was asleep or unconscious; or
· the activity occurred whilst the person was intoxicated to the point of being incapable of freely and voluntarily agreeing; or
· the activity occurred whilst the person was affected by a physical, mental or intellectual condition or impairment such that they were incapable of freely or voluntarily agreeing; or
· the person is unable to understand the nature of the activity; or
· the person agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or
· the person is mistaken about the nature of the activity (for example, a person is taken not to freely and voluntarily agree to sexual activity if they agree to engage in the activity in the mistaken belief that the activity is necessary for the purposes of medical diagnosis, investigation or treatment, or for the purpose of hygiene.
Consent cannot be given by a person under the age of 18 years in a case where the accused is the guardian, teacher, religious leader, or in certain other positions of authority over the alleged victim/survivor.
Disclosure means the sharing of information regarding sexual assault or sexual harassment to members of the Institute staff. Disclosures will be recorded without the identity of the complainant or any details that may suggest the identity of any person involved in the incident/s for the purposes of the Institute’s risk identification, assessment and prevention strategies.
External Report means a report to the police and/or external agency.
Misconduct as defined under Student Misconduct Policy.
Procedural Fairness is the procedural requirement to ensure that a standard of fairness is applied in the investigation and adjudication of a dispute. This involves:
· fully informing a person of any allegation/s made against them;
· giving them the opportunity to state their case, provide an explanation or put forward their viewpoint;
· conducting a proper investigation of the allegations, ensuring that all parties are heard and that all relevant submissions are considered, with reasons given for any decision;
· permitting complainants and alleged offenders to be accompanied to any meeting by a support person;
· acting fairly, impartially and without bias; and
· declaring any real or potential conflict of interest.
Reasonable Measures are arrangements or adjustments that may be implemented on a case-by-case basis where a disclosure or report has been made in order to minimise the potential for harm to any person.
Report means the sharing of information regarding an incident of sexual assault or sexual harassment to the Institute for the purpose of accessing support, taking reasonable measures and initiating further action such as an investigation.
Sexual assault is an inclusive term used to describe any sexual behaviour to which a person does not give consent. In Queensland, the following are criminal offences – sexual assault, rape, attempted rape, sexual abuse, domestic violence, sexual violence, stalking, assault.
Sexual harassment is any unwelcome conduct of a sexual nature, where it is reasonable to expect that the other person would be offended, afraid or humiliated. Sexual harassment can be verbal, non-verbal, written, graphic or physical. Sexual harassment includes, but is not limited to:
· any deliberate and/or unsolicited sexual communication, the use of overt sexual language, suggestive or physical contact that creates an uncomfortable learning/working environment for the recipient and is made by a person who knows, or ought reasonably to know, that such action is unwelcome;
· a sexual advance or solicitation made by one person to another, where the person making the advance or solicitation knows, or ought reasonably to know, that such action is unwelcome;
· a reprisal, or threat of reprisal, for the rejection of a sexual solicitation or advance particularly where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person;
· practical jokes of a sexual nature which cause awkwardness or embarrassment;
· displaying and/or distributing pornographic pictures or other offensive material of a sexual nature, including audio or visual images of an individual through technological devices, equipment and service;
· unwanted physical contact such as kissing, touching, patting or pinching;
· unwelcome sexual remarks, sexual jokes, intrusive sexual questions, sexual innuendoes or taunting about a person’s body, attire, sex, personal or social life;
· requests for sexual favours;
· behaviour that may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, stalking, technology facilitated image-based abuse or obscene communications.
Student is defined in the policies of the Institute.
Trained Responders are the people who are trained to assist students and staff to access support and reasonable measures and to make disclosures or reports of sexual assault and sexual harassment.
Institute Related Conduct means any conduct that is connected to the Institute, including conduct that occurs:
· during, or in connection with, any function, activity or event related to the Institute (whether sanctioned by the Institute or otherwise);
· when a person is representing LI in any capacity;
· during, or in connection with, the performance of duties for the Institute;
· using, or is facilitated by, the Institute ICT resources or other equipment; or
· on, or in connection with, any property owned, leased or occupied by the Institute (or any entities it controls) or any lands or roads within any Institute campus.
Legislation:
Anti-Discrimination Act 1991 (Australia) and related Commonwealth legislation
Queensland Criminal Code (Qld) and related acts.
Scope
Whole Institute
Key Stakeholder
All staff, students, prospective students
Procedures
This policy applies to the Institute’s students and staff, regardless of their location or study mode, who wish to report sexual assault or sexual harassment by current students, staff members or others. Allegations of sexual assault or sexual harassment involving staff or contractors (excluding students) will be referred to Director, Human Resources to be investigated and/or managed. Past students who report an incident of sexual assault or sexual harassment which occurred when they were a student will be provided with information and referred to support services by the Institute. Past students should be aware that the Institute may be limited in any investigative actions it can take.
The Institute will not be in a position to investigate allegations of sexual assault or sexual harassment made against people who are not students, staff or contractors, or incidents not connected to the Institute. The Institute will, however, provide support and information to students who disclose or report sexual assault or sexual harassment and will support them if they wish to report their experience to the police.
SUPPORT FOR STUDENTS AND STAFF
The Institute is committed to providing accessible and non-discriminatory support services for students and staff who are affected by sexual assault and/or sexual harassment. Support available for students and staff includes:
· counselling through the Institute’s counselling services or referral to other support services;
· assistance in making a report;
· assistance through the process of an investigation or misconduct process;
· assistance in making an external report to the police or other external agency; and
· reasonable measures in order to minimise the potential for harm to any person including, but not limited to:
o class timetable changes;
o academic adjustments;
o placement reassignment;
o temporary remote learning or working arrangements and;
o workplace arrangements.
The Institute’s Counselling Support and Education and Welfare Officers are trained responders who are able to assist students and staff with their immediate support needs and provide students and staff with confidential advice on the options available to them and support to action these.
DISCLOSURES
A disclosure can be made by any student and staff who experiences sexual assault or sexual harassment to access support services. If the person making the disclosure wishes further action to be taken, they may elect to make a report. Staff members who receive a disclosure from students will:
· refer the complainant to trained responders at counselling support;
· inform the Complainant that staff are required to report disclosures of sexual assault and sexual harassment to administrative staff and ask permission from the complainant to release their name and contact details;
· outline the options available to the complainant to help them determine any next steps they may wish to take, including:
o Report to the Institute using a Report Form.
o External Report to the police or other external agency
o No immediate action
· ask again for permission from the complainant to release their name and contact details to administrative staff; and
· offer assistance in any other way as deemed appropriate in the circumstances, including referral to international student support agencies.
If the complainant gives permission for the staff member to release their name and contact details, the complainant and staff member will make a report together using a Report Form as soon as practicable.
If the complainant does not give permission for the staff member to release their name and contact details the staff member will complete a de-identified recorded disclosure form and send the completed form to the Director, Human Resources as soon as practicable.
Staff members are required to make a mandatory report to the Queensland Police Services (QPS) or Relative agency in relation to disclosures and reports of sexual assault or sexual harassment which have occurred within Queensland where the complainant is aged under 18.
The opportunities for the Institute to provide support may be limited if a disclosure is made anonymously or without sufficient information. Where this applies, the Institute may still use the de-identified recorded disclosure form for the purposes of the Institute’s risk identification, assessment and prevention strategies.
REPORTS
A Report can be made by any student or staff who experiences sexual assault or sexual harassment to access support services and to initiate further action by the Institute.
Reports to the Institute
Students or staff can make a report of sexual assault or sexual harassment by using the report form or by contacting administrative staff or the Director, Human Resources for staff. Students making a report using the report form will be contacted within two business days and, in urgent circumstances, will be contacted immediately.
External Reports
Members of the Institute Community may make an external report to the police or other external agency at any time and will be supported by the Institute if they wish to do so. No-one may prevent any person from reporting or referring a matter to the police or other external agency and no-one should seek to exert any pressure on any person to dissuade them from making an external report.
FURTHER ACTION – INSTITUTE MISCONDUCT PROCESSES
If the alleged offender is a student, the report will be provided to the Director, Human Resources. If the alleged offender is a staff member or contractor the report will be provided to the Director, Human Resources.
If an alleged offender holds more than one status (e.g. is a student of the Institute and also a staff member of the Institute), the report will be assessed and referred according to the Director, Human Resources. Support and reasonable measures will be made available to all parties to the report, as required for the duration of the process.
The Institute’s internal processes are for the purpose of determining misconduct and separate from any criminal proceedings or investigations conducted by the police or other external agency as a result of an external report. Any internal process may cease whilst a police or external investigation is being undertaken.
Reports against Students
Where the alleged offender is a student, the report will be considered and may be progressed by the Director, Human Resources pursuant to the Student Behaviour and Misconduct Procedure. The Director, Human Resources may recommend referral of the matter to the Academic Board for further action. If the Academic Board determines on the balance of probabilities that misconduct has occurred it may apply one or more penalties in accordance with the Student Misconduct Policy.
Reports against Staff and Contractors
Reports referred to the Director, Human Resources will be investigated and/or managed under the Institute Enterprise Agreement (staff) or contractual agreement.
IMPLEMENTATION OF REASONABLE MEASURES
The application of reasonable measures outlined at 1.e will be determined on a case-by-case basis. Application of reasonable measures as a result of a report; during an investigation; misconduct process; or investigation by the police or other external agency, is not determinate of the occurrence of sexual assault or sexual harassment. In implementing reasonable measures, the Institute will:
· consider the risk to the complainant;
· apply the principles of procedural fairness;
· seek to balance any conflicting rights and interests and ensure victimisation does not occur;
· take into account any relevant external requirements as a result of assault or sexual harassment potentially amounting to a criminal offence; and
· discuss the proposed reasonable measures with the affected parties.
CONFIDENTIALITY
The confidentiality of a complainant will be respected, and reports and disclosures will not be referred to Police or other external agency without the consent of the complainant, except to the extent that the staff member may be compelled to disclose details, to protect any person from risk to life, health or safety, or where a student is under 18 years of age. Information received as part of a report or disclosure will be accessible by the person who provided the information and kept separate from the enrolment, employment and other educational records of the complainant, or any witness.
RECORDKEEPING
All reports of sexual assault and sexual harassment, records and correspondence taken, including those made to and/or in connection with Institute owned or affiliated student accommodation will be securely retained in accordance with the Record Management Policy. For the purposes of reporting on sexual assault and sexual harassment, information received as part of a report will be recorded by the Institute, monitored, and reported upon.
ACCESS TO INFORMATION
Subject to confidentiality requirements, students and staff will be allowed reasonable access to recorded information about themselves. Access to information relating to a report of sexual assault or sexual harassment will be restricted to Institute staff who have a need to access and use the information to carry out their responsibilities under this procedure and the student and staff sexual assault and sexual harassment policy.