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Sexual Misconduct Policy

Category Administration and Management
Type Policy
Approved by Vice-Chancellor, 17 April 2019
Date Policy Took Effect 24 May 2019
Last Approved Revision
Sponsor Vice-Chancellor
Responsible Officer Manager, Policy and Compliance
Review Date 24 May 2021

Purpose

The University of Otago is committed to creating an environment in which no form of sexual misconduct is tolerated and to having processes in place that reduce the likelihood of sexual misconduct. Where incidents of sexual misconduct are reported, the University will support those making reports while recognising the importance of fair process (including the right to be heard) for those alleged to have committed acts of sexual misconduct.

This policy is intended to:

  • Clarify the options available for those reporting sexual misconduct
  • Establish the expectations placed on staff who receive reports of sexual misconduct
  • Provide a clear and consistent process for responding to reported incidents of sexual misconduct, and
  • Ensure that reports of incidents of sexual misconduct are handled effectively, consistently and in a timely manner

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Organisational Scope

This policy covers sexual misconduct or retaliation that occurs or is alleged to have occurred:

  • On the University of Otago campus or on other property controlled by the University
  • In connection with any University of Otago programme or activity, whether on or off campus
  • Through any University of Otago web-based programme, or
  • Where the affected party is a University of Otago student or employee and there is a connection between the circumstances of the misconduct and the University

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Definitions

Affected party
An individual who considers that they have been subject to sexual misconduct.
Confidential staff
Staff who have professional obligations, or a recognised right, that generally allows them to keep information confidential to themselves and the person giving the information. These include approved Te Whare Tāwharau Advocates, chaplains, medical practitioners, counsellors and other health professionals.
Reporting party
Any person who reports alleged sexual misconduct under the Sexual Misconduct Policy.
Respondent
An individual alleged to have breached the Sexual Misconduct Policy.
Retaliation
Any action intended to harm any person as retribution for a complaint made under this policy, or a threat to cause harm to any person as retribution for a complaint made under this policy or to dissuade a person from making such a complaint.
Sexual misconduct
Any kind of inappropriate or unwanted action of a sexual nature, including sexual assault, sexual harassment, the unauthorised making and sharing of intimate visual recordings and retaliation.
Sexual harassment
Sexual harassment has the meaning given to it in section 62 of the Human Rights Act 1993, which defines sexual harassment as:
  1. The making of a request of any other person for sexual intercourse, sexual contact, or other form of sexual activity which contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment; or
  2. By the use of language (whether written or spoken) of a sexual nature, or of visual material of a sexual nature, or by physical behaviour of a sexual nature, to subject any other person to behaviour that:
    1. Is unwelcome or offensive to that person (whether or not that is conveyed to the person complained about);
    2. And is either repeated, or of such a significant nature, that it has a detrimental effect on that person.
Nothing in this definition shall apply to the use or presentation of language or materials, which is reasonably required for bona fide educational purposes.
Sexual Misconduct Action Response Team (SMART)
The team of University of Otago staff appointed by the Vice-Chancellor to undertake the roles defined by this Policy. SMART is led by the SMART Coordinator.
Te Whare Tāwharau
The University of Otago Sexual Violence Support and Prevention Centre.

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Policy Content

1. Prevention of sexual misconduct

  1. The University acting through agencies such as Te Whare Tāwharau and other available means and working in collaboration with OUSA will undertake steps to prevent sexual misconduct by:
    1. ensuring that students are informed of this policy, related resources, and education programmes
    2. ensuring those covered by this policy have access to information and training to prevent sexual  misconduct through appropriate programmes that may include, but not be limited to, bystander intervention, resistance education, and consent education
    3. integrating training and educational opportunities regarding sexual misconduct into key student activities during orientation, enrolment and at other times of the academic year, and
    4. integrating prevention and disclosure training and education regarding sexual misconduct into employee induction processes and other training and courses for staff.

2. Responding to sexual misconduct

  1. The University of Otago strongly encourages any individual who has been subject to or knows of sexual misconduct to report the circumstances to an appropriate University staff member (see clause 4 below) and to seek support.
  2. The University will respond to all allegations of sexual misconduct of which it becomes aware in a manner which is effective, consistent and timely, by:
    1. ensuring that all those involved in the allegation receive appropriate support and guidance, and
    2. investigating and responding to situations as provided for in this policy and related University processes and, as far as possible, in accordance with the wishes of affected parties.

3. Rights of affected parties and respondents

  1. Affected parties have the right to:
    1. be heard
    2. be treated with dignity and respect
    3. be free of blame or judgment, no matter the situation they were in at the time of any alleged sexual misconduct
    4. not be exposed to prejudice based upon ethnicity, sexual orientation, gender, gender identity, age, ability, lifestyle, or experience
    5. be treated in a manner that enables them to maintain control and empowers them to determine their own needs and how to meet those needs
    6. choose whether or not, and to what extent, they wish to participate in any reporting or investigations proceedings
    7. have access to confidential resources, including an advocate who is separate from those investigating their complaint (they may also choose any person to advocate on their behalf in addition to or instead of any Te Whare Tāwharau advocate provided  under 3(a)ix below)
    8. be provided with information about options for action and determine whether or not they wish to report to Police, and
    9. in the case of students, have access to a Te Whare Tāwharau provided advocate to support them in accessing academic and related accommodations, including compassionate consideration and safety planning.
  2. Respondents to allegations of sexual misconduct have the right:
    1. to the presumption that they have not breached this policy unless an investigation in which they have had the opportunity to be fully heard has determined otherwise, or they have admitted the breach
    2. ito be treated with dignity and respect and, where relevant, to be dealt with in good faith in accordance with their employment agreement
    3. to access confidential support independent from the staff investigating the complaint
    4. subject to any requirements or expectations that may arise for members of the University staff, to choose whether or not, and to what extent, they are willing to participate in any investigation, and
    5. not to be exposed to prejudice based upon ethnicity, sexual orientation, gender, age, ability, lifestyle, or experience.

4. Reporting of sexual misconduct

  1. Affected parties and others are free to make reports of sexual misconduct in the manner they choose, including to University staff (some other options are available at the end of this policy). Students are encouraged to make use of the advice available from Te Whare Tāwharau.
  2. Confidential staff are not required to advise any other party of information they receive regarding sexual misconduct, but:
    1. may do so where that is consistent with, or required by, their professional ethical obligations or, in the case of Te Whare Tāwharau advocates, by relevant Te Whare Tāwharau guidelines, and
    2. may advise the SMART Coordinator that they have received such information and discuss the handling of the situation in general terms.
  3. Staff receiving a report of sexual misconduct are expected to: 
    1. offer to facilitate contact with a support provider (see options listed at the end of this policy), and, where the affected party is a student, advise the party from whom they received that information of the services available from Te Whare Tāwharau and offer to facilitate contact with Te Whare Tāwharau
    2. advise the party from whom they received that information of the right of an affected party to seek a formal investigation through the office of the Proctor or the Director of Human Resources as appropriate, and
    3. advise the SMART Coordinator of the report (identifying the affected party if they consent) so that SMART can:
      • maintain an overview of reported incidents across the University, and
      • ensure, as far as consistent with the affected party’s willingness to be identified, that support is provided in accordance with clause 7(a).
  4. Students receiving a report of Sexual Misconduct from another student are encouraged to:
    1. advise the party from who they received that information of the services available from Te Whare Tāwharau, and to offer to facilitate contact between Te Whare Tāwharau and that party, and
    2. advise the Te Whare Tāwharau Coordinator that they have received such a report and pass on such information as they consider appropriate having discussed the matter of disclosure with the Te Whare Tāwharau Coordinator.
  5. No member of staff, other than those charged with the responsibility of doing so under this policy, shall attempt to investigate allegations of sexual misconduct.
  6. Staff or students receiving a report of sexual misconduct may contact the SMART Coordinator for advice.

5. General principles applying to reports of sexual misconduct

  1. All members of the University affected by sexual misconduct are entitled to reasonable access to relevant resources, including advocacy and counselling.  Support is also available for students dealing with events which precede enrolment at university, but which impact their ability to work or study.
  2. To encourage reporting, the University of Otago generally will not hold affected parties, reporting parties or witnesses involved in the addressing of sexual misconduct accountable for breaches of any University policies relating to alcohol or drugs that may have occurred at the time of the alleged sexual misconduct.
  3. The University will, to the full extent possible, respect and safeguard the privacy of individuals who report allegations of sexual misconduct and all others involved in the process.  Information will be shared only on a need-to-know basis with those who have a role in dealing with the situation under this policy or who have a role in dealing with urgent concerns regarding the safety or welfare of individuals.
  4. The University may keep a central record of reports, in a manner that does not enable individuals to be identified, in order to be able to assess trends and inform best practice and ongoing education.

6. University response to reports of sexual misconduct

  1. The University will, in the first instance, respond to all reports of sexual misconduct by ensuring the affected party has access to appropriate support.
  2. Reports of sexual misconduct may also be dealt with under one or more of the following pathways:
    1. referral to Police
    2. in the case of allegations against students: a formal investigation coordinated through the office of the Proctor and, where appropriate, disciplinary response in accordance with the Discipline Statute
    3. in the case of allegations against students who are resident in a University or Affiliated College, enquiry by the Head of College for the purposes of potential action under College rules
    4. in the case of allegations against staff: formal investigation and response by Human Resources under the Ethical Behaviour Policy and the staff member’s employment agreement or independent contract with the University.
  3. An affected party shall, as far as possible, be entitled to choose the manner in which an allegation is addressed and shall be entitled to change that decision at any time.
  4. Where an affected party who is a student wishes a matter referred to the Police, Te Whare Tāwharau are available if that affected party so wishes to facilitate that referral and to ensure that affected party is provided support. In order to protect the integrity of a Police investigation University processes may need to be delayed for a time where a Police referral has been made.
  5. The Proctor may require students who are involved in a Police or University investigation to comply with interim measures as provided for under clause 9 of this policy and the Discipline Statute. The Director of Human Resources may establish and require a member of staff to comply with interim measures consistent with their employment or contractual arrangements with the University. 
  6. In investigating any allegations, the University will treat all parties and witnesses with dignity and respect.
  7. A clear distinction will be maintained between those offering advocacy or support to those involved in investigations and those responsible for undertaking investigations.

7. Support following an incident being reported

  1. As soon as possible after an incident is reported, the staff member to whom the report has been made shall notify the SMART Coordinator who shall ensure that an appropriate staff member is assigned responsibility for as many of the following as are appropriate to the circumstances:
    1. assessing the affected party’s safety and well-being and any issues there may be for the safety or wellbeing of the University community
    2. ensuring  that suitable support is in place for all affected parties, respondent parties and any other parties that may be involved
    3. assessing and documenting the incident or behaviour reported
    4. informing the affected party of the right to contact Police and offering to facilitate such contact
    5. discussing with the affected party the issue of the need to seek medical treatment, and, where relevant, explaining the importance of obtaining and preserving forensic and other evidence
    6. informing the affected party of their ability to or seek to have interim measures put in place, including options for, and available assistance with, changing academic, living, transportation, and/or working situations
    7. informing the affected party about resources available at the University and in the community, including advocacy services
    8. informing the affected party of their options, and where appropriate seeking consent to initiate an investigation, and discussing with them any concerns or barriers to participating in the investigation
    9. outlining to the affected party the applicable procedures for investigation and the range of possible outcomes
    10. explaining  to any relevant parties that the University does not tolerate retaliation and that the University will take prompt action in response to any act of retaliation
    11. assessing whether the incident should be referred for action under the Student Critical Incident Policy, particularly where there has been serious injury to a student, or serious distress or harm caused to a student or group of students, and
    12. taking any other measures that are deemed necessary or desirable.
  2. Having taken the appropriate steps under the previous clause, the staff member assigned responsibility for taking the steps under clause 7(a) will work with the affected party, in consultation with the SMART Coordinator as appropriate, to determine the pathway(s) the affected party wishes to follow in addressing the situation (see clause 6(b)).

8. Confidentiality, limits on confidentiality and requests for no action

  1. Confidential staff members may on some occasions have an obligation to pass information on, such as when there is a perceived to be significant risk to the safety of the person making the report or to the safety of others.
  2. In some cases, the SMART Coordinator may conclude that a situation warrants formal investigation even if the reporting party and/or the affected party has indicated a wish that this not occur.  In such instances, they shall notify the Proctor or the Director of Human Resources (as appropriate) of the situation and discuss with the affected or reporting party:
    1. the reasons for deciding that the matter needed to be notified, and
    2. the means by which risks to the affected party, reporting party or any other party arising from a decision to investigate may be managed.
  3. In the event that the Proctor or the Director of Human Resources confirms that a matter referred to it under the previous clause does warrant formal investigation, that person will:
    1. notify the reporting party and/or affected party of the University’s intention  to investigate, and
    2. work with the reporting party and/or affected party to mitigate any adverse consequences of that decision, including (if the reporting party and/or affected party wishes it) by advising the respondent of the request that no action be taken.
  4. Subject to any requirements or expectations that may arise for members of the University staff, affected parties, respondents and witnesses may choose not to participate in investigations, and have no obligation to cooperate or offer information or evidence.

9. Interim measures

  1. An affected party, or any person on an affected party’s behalf, may seek to have interim measures put in place, such measures being:
    1. measures available and approved under other University regulations and procedures
    2. measures imposed by the Proctor pursuant to their powers under the Discipline Statute
    3. measures imposed by the Head of a Residential College under College rules
    4. measures established by the Director of Human Resources in accordance with the employment or contractual arrangements the University has with the party intended to be subject to the measures.
  2. Interim measures that may be available (subject, where required, to approval under other University regulations and procedures) include:
    1. changes to accommodation, access to counselling and medical services, voluntary leave of absences or withdrawal from paper(s)
    2. provision of Campus Watch escorts
    3. confidential counselling through Student Health or the Employment Assistance Programme
    4. compassionate consideration for students where study or performance has been affected, including:
    5. as approved by Human Resources, compassionate consideration for staff in the following areas:
      • flexible working arrangements, including changes to start and finish hours or change of location or, in some instances, job assignment
      • leave to attend appointments or for other reasons related to the sexual misconduct.  Leave can be paid or unpaid depending on the duration of the leave and individual circumstances and requirements.
  3. Interim measures imposed on respondent parties may include:
    1. no-contact orders
    2. prohibition on attending events or being on campus, or otherwise limiting access to specified campus spaces
    3. measures consistent with the respondent’s employment agreement or contract with the University.

10. Formal Investigations

  1. Where an affected party wishes a formal investigation to be pursued or it is otherwise is determined that a situation requires formal investigation:
    1. In the case of allegations against a student, the Proctor will establish an investigation which shall be conducted by the Proctor or their appointee.  The investigator shall ensure that the SMART Co-ordinator is aware of the investigation and the SMART Co-ordinator shall assign a team of at least two SMART members to deal with any relevant matters in connection with the investigation.
    2. In the case of allegations against a staff member, the Director of Human Resources will establish an investigation in accordance with the applicable Human Resources processes. The Director of Human Resources may advise the SMART Co-ordinator of the investigation and invite him or her to appoint one or more SMART members to be available to assist with the investigation.
  2. Subject to the following provisions, the process of investigation to be followed in each case shall be determined by those responsible for the investigation having regard to the nature of the report and the overall circumstances. 
  3. An investigation into the behaviour of a student shall ensure fairness to all parties involved, including by:
    1. allowing any party who wishes to do so to have support or representation, and
    2. ensuring that a party against whom an allegation is made is fairly informed of:
      • fair detail of the allegation and of their right to be heard
      • the potential sanctions if an allegation is upheld, and
      • their right to decline to participate in the investigation.
  4. An investigation into a person employed or engaged by the University shall carried out in a way that is consistent with the requirements of the applicable employment agreement or independent contract terms. 
  5. The person responsible for an investigation may consult with SMART at any time during the course of an investigation and, in the case of allegations against students, shall do so before finalising their investigation report. The SMART team may provide advice to the investigator including recommending that further investigation is undertaken before a report is finalised.
  6. Investigations shall conclude with a report detailing the investigator’s conclusions which may include findings:
    1. that sexual misconduct has or has not occurred, or
    2. that the investigation has been unable to determine whether sexual misconduct has occurred but considers the matter should be left open.
  7. In the event that the investigation report has left an investigation open:
    1. interim measures that have been established may remain in place unless cancelled by the Proctor on the advice of SMART, and
    2. the Proctor or Director of Human Resources (as the case may be) may impose further or alternative interim measures which are considered appropriate to manage the situation on an ongoing basis having regard to the interests of any affected party, any respondent parties, interests of any others involved in the matter and the interests of the wider University community.
  8. In the event that the investigation has concluded that sexual misconduct has occurred:
    1. the Proctor may exercise their powers under the Discipline Statute to impose an appropriate penalty on a student or may refer the matter to the Provost for determination or further referral to the Vice-Chancellor, or
    2. the Director of Human Resources may cause appropriate steps to be taken under a staff member’s employment agreement or contract.

11. Sanctions

  1. Any action taken against a student shall be taken under the Discipline Statute 2011.
  2. Any action against a staff member or independent contractor shall be in accordance with their employment agreement/contract, University policy and employment law and taken by those with the authority to do so.

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Related Policies, Procedures and Forms

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Contact for Further Information

If you have any queries regarding the content of this policy or need further clarification, contact the SMART Coordinator:

Email smart@otago.ac.nz

Confidential Resource Contact Details – For Information

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