This is exactly what universities need to do to eliminate campus assault.

Content warning: This post contains themes of sexual assault some readers may find triggering.

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 to correct this vile culture of abuse.

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.

In 2009, St Paul’s College students created a pro-rape Facebook group titled ‘Define Statutory: Pro-rape, Anti-consent’.

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 Australia’s 39 universities 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, impute a duty upon the university/college to protect students from the actions of third parties.

It is likely that a college or university will not be held liable 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.

Following the release of details in relation to how widespread the issue of sexual assaults and harassment at certain university colleges has been, it may be argued that where there is evidence to suggest that there was issue of sexual harassment and sexual assaults was a problem at a college, the college was therefore aware of the risk and had a duty to protect students from this risk.

A former student who lived at John XXIII College (affiliated with the ANU but owned and operated by the Dominican Fathers) has stated that ‘“John’s” is known among the students as a college that harbours a very misogynistic culture and one in which sexual assaults are allegedly commonplace.’

If this statement is accepted as true, it could be argued that John XXIII College endorsed a culture where this type of behaviour (sexual harassment, sexual degradation of women students and sexual assaults) was acceptable. If it could further be argued that as the College created the culture and the danger, or at least allowed the culture to exist, a component of the duty of care they owe to students could be 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 college (if it is the college that owes the duty) 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 provided education in relation to what is acceptable and unacceptable behaviour? Were students aware of what constitutes proper consent?

Also of relevance is how the university or college responds specifically to a person who has been sexually assaulted.

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 university’s/college’s response to the assault than to the assault itself.

Questions that are relevant in terms of any breach of duty of care by a college or university after a student has disclosed to them that 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?

The chance for universities to get things right now

Now that we know what a widespread and devastating impact sexual assaults and harassment is having in our universities and colleges, it is important that they act to not only provide assistance and redress for survivors of abuse, but also to acknowledge and change the culture where necessary to ensure that 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 their 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 by the universities accepting that 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.

Lisa Flynn is an Australian Lawyer’s Alliance member and National Manager in Shine Lawyers’ Abuse Law Department.

If you or someone you know is dealing with sexual assault, please seek help and contact 1800 RESPECT. If you are in immediate danger, call 000.