Sexual Misconduct Policy

Dublin City University (hereinafter ‘DCU’ or the ‘University’) is committed to providing an equal, inclusive and diverse environment in which all members of the University community can feel safe while being respected and valued for their unique perspectives and contributions.

This policy sets out DCU’s commitment to tackling all forms of sexual misconduct. Sexual misconduct is a serious and unacceptable experience for any person, of any age, gender, sexual orientation, race/ethnicity or religious community. DCU has zero tolerance towards sexual misconduct. DCU believes that its entire staff, students, visitors, contractors, sub-contractors and others associated with the University (referred to in this document as ‘members of the University community’) have the right to enjoy their work and or study in a safe environment free from sexual misconduct and to be treated with fairness, respect and dignity at all times.

All members of the University community should be aware that all forms of sexual misconduct are unacceptable and that everyone has a duty to take responsibility for their own behaviour and to actively support a university culture of respect and dignity. Dealing with issues relating to sexual misconduct can be stressful and distressing for all parties concerned. Emotional support is available through the DCU HR Department and/or DCU Employee Assistance Programme for staff and the DCU Student Advice Centre and DCU Counselling Service services for students. Staff who are members of a trade union may also wish to speak to their trade union representatives. Students may wish to speak to the Students’ Union.

The policy has been developed in accordance with the national framework, Safe, Respectful, Supportive and Positive: Ending Sexual Violence and Harassment in Irish Higher Education Institutions, as well as the IUA’s Guidance for Universities ‘How to respond to Alleged Staff or Student or University Related Sexual Misconduct’ and THEA’s Promoting Consent & Preventing Sexual Violence (PROPEL) best practice guide. The policy and procedures have also been informed by the Irish Human Rights and Equality Commission (IHREC) new Code of Practice on Sexual Harassment and Harassment at Work (2022).

This policy sets out the University’s commitment to the promotion of a culture that rejects any form of sexual misconduct. The policy explains what is meant by sexual misconduct and provides an understanding of what types of behaviour constitute sexual misconduct.  The policy’s partner documents, Sexual Misconduct at Work Staff Procedures and the DCU Student Code of Conduct and Discipline and the Student Sexual Misconduct Procedures clearly explain the steps which individuals can take if they feel that they have experienced sexual misconduct.

The key aims of the policy are to:

1. Ensure that the University upholds both its legal and moral obligation to recognise that sexual misconduct is a serious issue as outlined in:  Equal Status Acts 2000 – 2018, Employment Equality Acts 1998 – 2015, Safety, Health and Welfare at Work Act 2005, and Harassment, Harmful Communications and Related Offences Act 2020.
2. ensure that all members of the University community understand that all forms of sexual misconduct are unacceptable, that such behaviour will not be tolerated, and that disciplinary action may be taken;
3. ensure that all members of the University community are aware of behaviour that may constitute sexual misconduct and their responsibilities for avoiding and/or preventing such behaviour;
4. prevent acts of sexual misconduct;
5. have adequate and accessible mechanisms in place for handling sexual misconduct effectively;
6. foster a working and learning environment where individuals and groups treat one another with dignity and respect and where everyone feels safe;
7. eliminate all forms of sexual misconduct and raise awareness of the impact of such conduct on individuals and their environment.

This policy applies to all staff and students of the university, including its wholly owned campus companies and its research centres. It also applies to voluntary workers, contractors, sub-contractors and visitors.  These are all hereinafter collectively referred to as ‘Members of the University Community’.

This policy applies to all areas of the university’s operations and programmes. It applies to conduct which takes place:

• on any University campus;
• at any other university or other place (including abroad) where employees or students are representing the University or are engaged in a university connected activity;
• any virtual setting in relation to any University related activity e.g. Zoom meetings, Loop, Microsoft Teams, etc.
• at events such as social functions, conferences, sporting events, field trips or work assignments which are related to the University or are a University connected activity; &
• in person, in writing, on the telephone, by text, by email or online, including social media, in relation to any University related activity.

There may be cases where the reported sexual misconduct is considered to be insufficiently connected to the institution to fall under its disciplinary jurisdiction. Each case will be assessed on its own merits in this regard. In making such assessments, due consideration will be given to the impact of the alleged behaviours on the DCU community including if such behaviours pose a health and safety risk for the institution, its staff and/or students, and/or could directly or indirectly lead to subsequent incidents that are immediately related to institutional activities. 

Where students or staff are undertaking a placement, internship, or secondment in another organisation, they should make themselves aware of the relevant policies in these organisations.

Bullying and harassment are covered by the separate Dignity and Respect at Work and Study Policy and accompanying staff and student procedures documents.

Complaints against staff and contractors of the Office of Student Life (OSL) are covered by the relevant policies of the OSL.

DCU believes that a safe, respectful, supportive and positive community is among a University’s greatest strength and has the potential to enhance the living, learning, and working experience for all members of the University community. Our University has both a legal and moral obligation to recognise that sexual misconduct is a serious issue. If unaddressed, the consequences can be damaging for both individuals and the institution.  DCU has a zero-tolerance stance on sexual misconduct.

Sexual misconduct is a broad term encompassing any behaviour of a sexual nature that is committed without consent or could involve force, intimidation, coercion, or manipulation. This policy provides clear definitions of sexual misconduct and related key concepts.

Any difficulty in defining what constitutes sexual misconduct should not deter members of the University community from reporting behaviour which is unwelcome.

The description of unacceptable behaviours related to sexual misconduct within this policy and accompanying documents is not exhaustive and behaviour additional to those listed may constitute sexual misconduct. The indication of the sanctions which may be applied if sexual misconduct is found to have occurred is illustrative only and may vary depending on severity and circumstances.

In this policy and the accompanying procedures, the terms ‘Reporting Party’ and ‘Responding Party’ are used in order to maintain neutrality.

This policy and accompanying procedures documents are an important part of a wider consent framework in operation at DCU and represent the wider ethos and culture of the university which aims to promote and support positive respectful, consensual behaviour through education programmes, awareness raising, visible leadership and a community culture of dignity and respect.

Sexual Misconduct

Sexual Misconduct is defined as any form of unwelcome behaviour of a sexual nature that may be subject to disciplinary proceedings. This includes but is not limited to crimes of sexual violence, sexual cyberbullying, image based sexual abuse including non-consensual taking and/or sharing of intimate images, creating, accessing, viewing or distributing child sexual abuse material online or offline, stalking behaviours whether online or offline in a sexual context, and any verbal or physical harassment in a sexual context.^[1]

Sexual misconduct can be committed by a person of any gender, and it can occur between people of the same or different genders. It is often gender targeted and perpetrated to demean, diminish and intimidate. Sexual misconduct may occur between strangers or acquaintances, including people involved in an intimate or sexual relationship. This definition recognises the more traditional term Sexual Harassment (Equal Status Act 2000, s11(5)(a)), to which the procedural guidance set out in this Policy and related Procedures document, is also applicable.^[2]

Some instances of sexual misconduct (including those listed above and below) may also constitute a criminal offence.

The following are (non-exhaustive) examples of behaviours associated with sexual misconduct:

• Predicating inclusion or access to work or study opportunities or other advantages on participation in interactions of a sexual nature;
• Grooming, psychological abuse and coercive contact;
• Making unwanted remarks of a sexual nature, either directly, or by text/email/social media

• Any behaviour of a sexual nature that is committed without consent including (but not limited to):
  • Kissing
  • Sexual intercourse
  • Touching inappropriately, including through clothes
  • Taking or sharing intimate images;
• Inappropriately showing sexual organs to another person;
• Creating, accessing, viewing or distributing child sexual abuse material online or offline;
• A promise of resources, access to education, academic grades, opportunities and career progression in exchange for sexual access; &
• Misuse of power, by academic or professional staff towards students or more junior levels of staff or misuse of power in a relationship between students or employees who have unequal institutional power.

Consent

Sexual Consent is described as the freely given verbal or non-verbal communication of a feeling of willingness to engage in sexual activity. This description entails an ongoing, mutual and preferably verbal communication, and is consistent with the definition of consent in the Criminal Law (Sexual Offences) Act 2017, as where the individual “freely and voluntarily agrees to engage in that act”.^[3]

There is no consent if the victim is asleep or unconscious; force or the threat of force is used; they cannot consent because of the effects of alcohol/other drugs; they cannot communicate consent because of a disability; they are mistaken about the act or about the identity of the other person; the only indication of consent came from a third person, or if they are being unlawfully detained at the time of the act.

The law is also clear that failure to resist is not consent. Consent can be withdrawn at any time, and just because someone has previously given consent, does not preclude that person from withdrawing consent. Non-consensual sexual activity may amount to a prosecutable criminal offence.

Initial Disclosure

In the context of this policy, initial disclosure refers to an instance where an individual shares informally that they feel they have experienced sexual misconduct. Making an initial disclosure does not constitute a formal complaint, however after seeking advice, the person may decide to submit a formal complaint. When making an initial disclosure, the individual should be signposted towards internal and external supports. They should be made aware of their right to make a formal complaint. They should also be supported to try to resolve the issue informally if that is what they wish to do. Informal resolution will only be attempted where the reporting party clearly expresses a wish to engage with this process. If the reporting party chooses to make a formal report, they should be provided with appropriate supports.

Formal report^[4]

A formal report occurs when a person makes a formal statement about sexual misconduct to a staff member in the University who has the authority to initiate a formal investigation process. A formal report will be managed in accordance with the University’s policy and accompanying procedures.

Reporting Party^[5]

The reporting party is the person who has allegedly been subject to sexual misconduct and has made a formal report

Responding Party^[6] 

The responding party is the person who has allegedly carried out the sexual misconduct and against whom a formal report of sexual misconduct has been made.

Precautionary Measures^[7]

Precautionary measures are actions that may be taken by the institution at any stage with the aim of protecting all parties. Any such measures will be reasonable and proportionate and will have the minimum possible impact on the responding party, while also providing a safe environment for the reporting party. These measures are not disciplinary sanctions, and they do not indicate that the institution has made conclusions regarding any alleged breach of discipline, failure to meet the required standard of conduct, or criminal offence.

Victimisation^[8]

Victimisation occurs when someone is dismissed or treated badly because they have made a complaint related to equality law.

Staff

In the context of this policy, the word ‘staff’ includes all full-time and part-time employees of the University and its campus companies.

An employee is a person who has a Contract of Employment issued by DCU.

Student

Includes all full-time and part-time students of the University, online and on campus.

All members of the DCU Community

This phrase is used in this Policy as a generic term to encompass all adults who are involved in the operation of the University and its campus companies. It covers employees, students, voluntary workers, contractors, subcontractors and visitors.

Employees in a position of Authority

All University employees who have managerial and/or supervisory responsibilities e.g. Executive Deans, Heads of Departments, Faculty Heads, Line Managers and Supervisors.

Visitor

Includes any person visiting a DCU campus or virtual setting for any reason.

Contractor

Includes any person or company that undertakes a contract to provide a service or goods to the University.

Sub-Contractor

Includes any person contracted by a person or company who has been contracted by the University to provide service or goods.

^[1] Safe, Respectful, Supportive and Positive: Ending Sexual Violence and Harassment in Irish Higher Education Institutions

^[2] IUA Guidance for Universities “How to respond to Alleged Staff or Student or University Related Sexual Misconduct

^[3]  IUA Guidance for Universities “How to respond to Alleged Staff or Student or University Related Sexual Misconduct

^[4] THEA (2021), Promoting Consent & Preventing Sexual Violence (PROPEL)

^[5] THEA (2021), Promoting Consent & Preventing Sexual Violence (PROPEL)

^[6] THEA (2021), Promoting Consent & Preventing Sexual Violence (PROPEL)

^[7] THEA (2021), Promoting Consent & Preventing Sexual Violence (PROPEL)

^[8] Irish Human Rights and Equality Commission

All members of the University have a responsibility to:

• Read this policy and its associated procedures and ensure they have an understanding of the behaviours associated with this policy that are not acceptable or tolerated;
• Take responsibility for their own behaviour, and conduct themselves in a manner that is respectful towards all members of the University community and in line with the rules, regulations and policies of the University;
• Behave and conduct themselves so as to respect the right of others to dignity, courtesy and respect at all times;
• Commit to the promotion of a University that recognises and respects individual difference and that operates a zero-tolerance stance on sexual misconduct;
• Participate in awareness raising initiatives and/or training associated with this policy;
• Encourage others to engage with the supports available to them through this policy and related procedures if they disclose to you that they feel they have experienced sexual misconduct;
• Challenge or report incidents of sexual misconduct, as appropriate to their role in the university, even if they are not directly affected;
• Respect the confidentiality of all parties involved in any disclosure and/or formal reports of sexual misconduct within the constraints of the law;
• Be aware of their personal liability under the Employment Equality Acts 1998 – 2015 and Equal Status Acts 2000 – 2018 for their conduct;
• Safeguard their own safety and welfare. Each person has a duty not to place the safety, health and welfare of our community members at risk by engaging in harassment or bullying;
• Cooperate by providing any relevant information when an allegation of sexual misconduct is being investigated whether at an informal or formal stage; &
• Adhere to the procedures set out in this policy and the separate individual procedures documents for staff and students.

Employees in a position of authority have a responsibility to:

• Champion and promote a culture of respect and dignity and one that does not tolerate sexual misconduct;
• Set appropriate standards of acceptable behaviour and set an example through their own behaviour and actions;
• Act on formal reports of incidents of sexual misconduct. Those who do not act on such formal reports are in breach of this policy;
• Endeavour to ensure that their employees are aware of the content of this policy and its associated procedures;
• Undertake managerial duties while taking care not to demean, devalue or intimidate employees and students.  The power attached to their position should never be abused;
• Treat disclosures and reports sensitively and address them promptly, confidentially and impartially;
• Respect the confidentiality of all parties involved in any disclosure and/or formal reports of sexual misconduct within the constraints of the law;
• Seek advice from Human Resources/ Equality, Diversity and Inclusion Team/ Student Support and Development Team where necessary and/or appropriate;
• Take immediate action in line with this policy if witness to, or advised of, inappropriate behaviour and/or sexual misconduct;
• Endeavour to ensure that the reporting party(ies) are not victimised for making a complaint in good faith; &
• As much as possible, protect the health and safety of both staff and students.

 Human Resources have a responsibility to:

• Promote a staff culture that is free from sexual misconduct and ensure that behavioural standards are acceptable;
• In line with duties related to confidentiality, act on formally reported incidents of sexual misconduct and investigate formal complaints made under this policy. Those who do not act on such reports are in breach of this policy;
• Help ensure that employees are aware of the content of this policy and its associated procedures;
• Help promote the policy and treat formal reports seriously and address them promptly, confidentially and impartially in accordance with the complaint resolution procedures;
• Deal sensitively and respectfully with both the reporting party and the responding party when a formal report is being made;
• Respect the confidentiality of all parties involved in any disclosure and/or formal reports of sexual misconduct within the constraints of the law;
• Endeavour to ensure that reporting parties are not victimised for making a complaint in good faith; &
• Endeavour to protect the wellbeing and welfare of staff.

Student Support and Development have a responsibility to:

• Promote a student culture that is free from sexual misconduct and ensure that behavioural standards are acceptable;
• In line with duties related to confidentiality, act on formally reported incidents of sexual misconduct and investigate formal complaints made under this policy. Those who do not act on such reports are in breach of this policy;
• Help ensure that students are aware of the content of this policy and its associated procedures;
• Help promote the policy and treat formal reports seriously and address them promptly, confidentially and impartially in accordance with the complaint resolution procedures;
• Deal sensitively and respectfully with both the reporting party and the responding party when a formal report is being made;
• Respect the confidentiality of all parties involved in any disclosure and/or formal reports of sexual misconduct within the constraints of the law;
• Endeavour to ensure that reporting parties are not victimised for making a complaint in good faith; &
• Endeavour to protect the wellbeing and welfare of students.

Heads of School, Associate Deans, Programme Chairs (for students) have a responsibility to:

• Respond sensitively and promptly to students who make a disclosure or a complaint;
• Respect the confidentiality of all parties involved in any disclosure and/or formal reports of sexual misconduct within the constraints of the law;
• Have an understanding of the policy and associated procedures; &
• Know where to refer students and staff for support in relation to disclosures or complaints of sexual misconduct.

Initial Disclosure

An initial disclosure occurs when an individual shares informally with another person that they believe they have experienced sexual misconduct. If the individual decides to disclose their experience to a trained member of DCU staff, they can expect to be treated sensitively and with dignity and respect. They can also expect to be offered information about the options available to them, including where to access professional support as well as how to make both a formal report and/or a report to An Garda Síochána if that is what they would like to do.

The individual should also be supported to try to resolve the issue informally if that is what they wish to do. Informal resolution will only be attempted where the reporting party clearly expresses a wish to engage with this process.

This policy respects the right of the person disclosing the experience to choose how to take forward the disclosure. The decision of the person making a disclosure regarding whether to report to An Garda Síochána (if applicable) will be respected within the constraints of the law.^[1]

In making an initial disclosure, the information you share will be completely confidential between you and the trained staff member. No further action will be taken unless you choose to progress to formal reporting.

Formal Reporting

A formal report occurs when a person makes a formal statement about sexual misconduct to a staff member in the institution who has the authority to initiate a formal investigation process. The formal report will then be managed in accordance with the university’s policy and relevant accompanying procedures. The decision of the individual making a formal report regarding whether to report to An Garda Síochána (if applicable) will be respected within the constraints of the law.^[2]

Anonymous Reporting

Speak Out is an anonymous-reporting tool for DCU staff and students. The tool allows any member of University staff or student to submit a report of bullying, harassment, discrimination or sexual misconduct in a way that protects their identity.  The tool is completely confidential, and no identifying information will be shared with the University.

The anonymous reporting tool will assist the University to monitor data related to experiences of sexual misconduct within the University in order to identify trends and patterns. The University will then use these findings to inform future work: for example, to identify training and information needs and any gaps in current policies and procedures or to address areas of risk which had not previously been identified. Where possible, the University will take action to address issues and/or trends indicated by this high-level data.

Possible Criminal Offence

Some instances of sexual misconduct may also constitute a criminal offence. You are under no obligation to report your experience to An Garda Síochána and you will not be pressured to pursue this course of action. If you do decide to make a report to the Gardaí, the University will be available to help facilitate this if you wish.

Only in the most exceptional circumstances and with the benefit of specific legal advice, will the University refer a report of sexual misconduct to the Gardaí contrary to the wishes of the reporting party. The circumstance in which a report by the University may be justified is if the affected party is legally a minor^[3] or, or, where there is clear evidence of wrongdoing available to the University separate from the complainant itself or, where there is considered to be a clear and imminent risk to the safety of the complainant or of third parties. In deciding whether to make such a report, and what information to disclose, the University will take into account any potential harm that the unauthorised disclosure may cause to the person who has experienced sexual misconduct. This assessment will be undertaken on a case-by-case basis taking on board the knowledge that disclosing information to An Garda Síochána without the consent of the person who has experienced sexual misconduct could cause significant harm and could undermine the relationship of trust and confidence between the University and the person who has experienced sexual misconduct. If universities decide that it is necessary for them to report the sexual misconduct to An Garda Síochána, then the reasons for taking that action should be explained to the complainant so that they understand what is happening and are prepared if/when An Garda Síochána contact them.) 

If the Reporting Party chooses to report an experience of sexual misconduct through internal University procedures as well as through criminal proceedings, the University will reserve the right to suspend its internal investigation until that of An Garda Síochána has concluded so as not to prejudice the criminal investigation. If the University process is paused, the institution will take any necessary precautionary measures to protect all parties in the interim.

The internal DCU disciplinary process is a civil matter and is based upon a report that a member of the University community breached the University’s rules and regulations. The allegation must be proven on the balance of probabilities and the most serious sanction that can be applied is permanent expulsion from the University or termination of employment. In contrast, the criminal process is an external process, and involves the accusation of a criminal act, the allegation has to be proven beyond reasonable doubt and the most serious sanction that can be applied is imprisonment.

Disciplinary Procedures

The University may take appropriate action against an individual(s) where:

• Reports of alleged sexual misconduct, if substantiated, may lead to penalties under the appropriate employee or student disciplinary procedures being invoked.
• Where allegations are deemed to be malicious and without foundation, the person responsible for such allegations, or any parties involved in the support of such allegations, may also be the subject of disciplinary action further to this policy.

Any actions taken by the University with respect to University employees will be initiated in accordance with the appropriate DCU and/or commercial company regulations and disciplinary procedures, which may include, but are not restricted to, the initiation of steps for implementation of the Dublin City University disciplinary procedures under Dublin City University Statute No. 5 of 2010: ‘Suspension and Dismissal of Employees’ (relevant to Dublin City University employees only).

Allegations of sexual misconduct will be dealt with as follows:

• Issues relating to alleged sexual misconduct by employees against another member of the University Community will be dealt with in accordance with the procedures document of this policy (‘Sexual Misconduct at Work Procedures Document - Staff’).
• Issues relating to alleged sexual misconduct by students against another member of the University community will be dealt with under the Sexual Misconduct at Study Procedures Document - Students.

For students who are found guilty of an offense, penalties may be applied in accordance with the disciplinary procedure under Section 9 of the Student Code of Conduct and Discipline.

Record keeping

DCU will record and document key actions and decision-making that are taken by the University from when a formal report of sexual misconduct is received up until any criminal and/or disciplinary proceedings have been concluded. All data will be processed in accordance with GDPR.

Support at DCU

The University is committed to supporting people who have experienced sexual misconduct at work or study. 

Support is available through the DCU HR Department and/or DCU Employee Assistance Programme for staff and the DCU Student Advice Centre and DCU Counselling Service services for students. Staff who are members of a recognised trade union may also wish to speak to their trade union representatives. Students may wish to speak to the Students’ Union.

Support is also available outside of DCU and more details can be found in Section 10 of this policy.

^[1] Where a complaint concerns a minor, the University should in the first instance report the matter in line with the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 and the Children First Act 2015 to ensure that the University complies with its statutory obligations.

^[2] Where a complaint concerns a minor, the University should in the first instance report the matter in line with the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 and the Children First Act 2015 to ensure that the University complies with its statutory obligations.

^[3] Where a complaint concerns a minor, the University should in the first instance report the matter in line with the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 and the Children First Act 2015 to ensure that the University complies with its statutory obligations.

For further details on any aspect of this policy please contact:

Students

Deirdre Moloney, Student Policy Officer

Student Support & Development

Email: deirdre.moloney@dcu.ie .  Tel: 087 6640584

Staff

HR Equality, Diversity and Inclusion Team.

Email: edi@dcu.ie

This policy will be reviewed annually or as soon as practicable after there has been a material change in any matter to which this policy refers.