What is Sexual Misconduct

Sexual misconduct is unacceptable at UNSW. Sexual misconduct will always involve conduct which is contrary to UNSW Codes of Conduct because it will always involve a failure to behave in a respectful or lawful manner. 

Sexual misconduct includes sexual harassment or sexual assault, indecent assault, an act of indecency, conduct involving child abuse material, making or distributing sexually explicit photos or videos, or certain other behaviours of a sexual nature which are crimes in NSW and the ACT.

Sexual misconduct can involve behaviour by a person of any sex and any gender. It can occur between strangers or those who know each other well, including those involved in a consensual intimate relationship

Sexual assault

It's important to note that within the Australian community, various different terms are used to describe behaviour which involves a sexual assault. A term which is commonly used is rape.

Sexual assault is a crime. Under NSW and ACT law, sexual assault means engaging in certain sexual acts (such as intercourse and oral sex) with a person without their consent, when you know they don’t consent, or you don’t care whether they consent.

A person consents when they freely and voluntarily agree to behaviour, understanding what they are doing and who they are doing it with. A person can’t consent if they are:

  • asleep or unconscious;
  • significantly affected by drugs or alcohol;
  • intimidated, coerced or threatened;
  • held against their will, or
  • tricked, or under a mistaken belief, about the identity of the other person involved.

A person also can’t consent if they lack the capacity to understand what is taking place because of a cognitive disability, or because they are under 16. It’s important to understand that a person might not consent to behaviour even though they were, or are, in a relationship with you

Where UNSW has information about a sexual assault that might assist the Police, by law UNSW must report it. Generally, UNSW will defer commencing, or suspend, any misconduct procedure while a Police investigation is underway. UNSW may however take interim steps to protect students or staff and these steps may, for example, involve excluding a student from campus or requiring a staff member to take leave while the investigation continues.

There is more guidance about what may amount to sexual assault available on the Justice NSW website.

Indecent assault and acts of indecency

Under NSW and ACT law, both indecent assault and acts of indecency are crimes. Indecent assault involves touching another person in a sexual way (for example, on a person’s breasts or genitals), or threatening to do so, without the person’s consent. An act of indecency involves doing something of a sexual nature towards another person without their consent (for example, masturbating in front of another person).

Sexual harassment

Sexual harassment occurs where there is an unwelcome sexual advance, or other unwelcome sexual behaviour, towards another person, in circumstances where it can reasonably be expected that the person will feel intimidated, humiliated or offended by the behaviour. The person’s age, religious beliefs, race or ethnic origin might be relevant in considering their likely reaction to the behaviour. The unwelcome behaviour might involve a request for sexual contact, but there are other types of conduct which can amount to harassment.

In the context of certain activities and relationships, sexual harassment is unlawful under anti-discrimination legislation. For example, sexual harassment of students by staff of the University is unlawful, as is sexual harassment of staff by students. It is also unlawful for a staff member of the University to sexually harass another staff member. Other examples of unlawful sexual harassment are where the relevant behaviour is by a person offering accommodation or goods or services to the person harassed.

Where the unwelcome sexual behaviour consists of stalking or intimidation, that behaviour may amount to a crime. This will be the case where the stalker intends to frighten the person stalked. Stalking and intimidation need not involve actually following a person; they may occur through phone calls, texting, emailing or social media contacts.

Sexual harassment doesn’t necessarily involve physical acts and may take many forms. Some unwelcome behaviours which might amount to sexual harassment include:

  • sending sexually explicit texts, emails or other social media messages;
  • intrusive questions or statements about a person’s private life;
  • displaying posters or screen savers of a sexual nature;
  • sexual jokes and comments;
  • insults or taunts of a sexual nature;
  • leering or staring;
  • asking for sex.

There is more guidance about what may amount to sexual harassment available on the Australian Human Rights Commission website.

Child abuse material

Producing or possessing child abuse material (also known as child exploitation material), or making such material available to another person, is a crime under NSW and ACT law. A child is a person under the age of 16 (although the offences can apply where the person described or depicted in the material is in fact over 16, but appears to be a child).

Sexually Explicit Photos or Videos

Creating or distributing sexually explicit or intimate photos or videos of a person without their consent, or threatening to do so, will be treated by UNSW as sexual misconduct. The above comments about consent also apply in this context. It’s important to emphasise that just because a person is, or was, in a relationship with you, or engaged in consensual sexual activity, doesn’t mean they consent to the sharing of sexually explicit or intimate images of them. In NSW it is a crime to share or record intimate images or videos without consent. The law covers photos and videos of private body parts or a person engaging in a private act, like undressing, showering or having sex.

For more information and resources see the Reachout.com and NSW Rape Crisis Centre websites.