The legal issues concerning sexual harassment and assault on Irish campuses are very topical. While the issue remains largely untested in the courts, it is possible to identify three key legal challenges for Higher Education Institutions (“HEIs”).
i) Garda involvement
Ever since Professor Graham J Zellick published his report on sexual violence on university campuses to the Committee of Vice Chancellors and Principals in 1994, a debate has raged between those who suggest that the issue falls exclusively within the remit of the police and those who believe that such matters warrant internal action by the HEI.
From a legal perspective, the best policy is to avoid a blanket approach to the issues. A case-by-case approach should be adopted with a clear understanding of published procedures and the legal framework. This should be set out in the HEI’s policy.
ii) Can the issue be dealt with under current procedures
Some policies and procedures in place at the HEI may be relevant in the event of sexual assault/harassment. For example, alleged offenders may be in breach of a HEI’s code of conduct/discipline or bullying policy and it is possible that the matter could potentially be dealt with under an established procedure.
However, if a HEI believes that the matter cannot be dealt with effectively, fairly and legally under current procedures, it may be necessary to implement a distinct respect /dignity policy. Such a policy should clearly define the scope of prohibited conduct, outline the process involved and state any possible sanctions. It should also clarify the range of support services available to students and tie in with existing policies and contracts. This information should be clearly communicated to all students at the relevant stage of their studies, usually at the induction stage.
iii) Data sharing & consent
As data controllers, HEIs will occasionally have to process sensitive personal data. “Sensitive personal data” in this context is defined as “data as to the physical or mental health or condition or sexual life of the data subject.” HEI consequently have a duty to process sensitive personal data fairly and to only process it with the consent of the data subject. Processing without consent may be permitted in the case of sexual harassment/assault, if processing is necessary to prevent damage to the health of the data subject/another or to protect the vital interests of the data subject/another.
The HEI should inform students in advance that a disclosure may be necessary. It is important to only disclose the minimum information necessary and to only disclose to people who need to know.
Three key takeaways are:
- policies must be clear and communicated to the student body
- staff must be fully trained to deal with possible eventualities
- the issue of sexual harassment on campus requires a holistic and proactive approach, across the institution and beyond