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USyd amends sexual assault policy to address consent loophole

The University was unaware of issues with the policy until informed by advocacy group End Rape On Campus (EROC)

Red background with screenshot of University's sexual harassment policy amendment date

Content warning: sexual assault

An amendment has been made to the University of Sydney’s Student Sexual Assault and Sexual Harassment Policy 2018, in order to properly reflect existing NSW law regarding consent.

According to a University spokesperson, the revised policy was signed and effective from 20 February, and placed online on 22 February.

The original version of the policy stated that a person under 16 years of age cannot consent to a sexual act. Though accurate, this definition did not account for the fact that, under NSW law, consent is negated where a person between the ages of 16 and 18 has sexual relations with someone who is exercising special care over them—such as a member of University staff.

This loophole may have resulted in a situation where, for example, a 23-year-old tutor having sexual intercourse with a 17-year-old student would deem their own conduct legal if they relied only on University policy, where in fact, they would be committing a statutory offence under section 73 of the Crimes Act. Currently, there is no specific University policy governing relationships of this nature between staff and students.

The problem was raised with the University by journalist Nina Funnell of advocacy group End Rape On Campus (EROC), after the group became aware of several instances of sexual abuse of minors at universities across Australia. EROC is currently in the process of compiling a report investigating such incidents, titled Underage and Overlooked: Sexual assault of minors in university communities.

Funnell told Honi, “It’s good that USyd has acted swiftly to address this policy gap, but other universities are still yet to follow suit… We have learned of cases where convicted pedophiles and rapists are employed as academic staff with responsibilities over students including minors. Working With Children Checks are not performed consistently, and many universities have policy gaps around staff having sex with students who are minors.”

Issues with the University’s policy may also reflect the haste with which it was first created. Its release in August last year was timed to coincide with the first anniversary of the release of the Australian Human Rights Commission’s 2017 report into sexual assault at Australian universities. Student advocacy groups decried the nascent policy, arguing that it was underdeveloped and prematurely implemented by the University, at the expense of survivors of sexual assault, and in order to advance the University’s public image.