The Queensland Supreme Court has determined that universities have no jurisdiction to adjudicate sexual assault, reports Bettina Arndt.
Justice Ann Lyons has just made a judgement in a pivotal case involving a University of Queensland medical student who was accused of sexual assault by another student. Wendy Mulcahy, the lawyer for the accused student, took the matter to the Supreme Court arguing that UQ did not have the jurisdiction to adjudicate such matters.
In her landmark judgement, Justice Lyons concluded universities are only entitled to make decisions in sexual assault cases which have been proved in criminal court. The university’s role is then to decide on any further penalty could be imposed on someone found criminally guilty of such a crime – such as expelling him or her from the university.
Lyon’s statement: “I consider that when read together, the University policy and procedures documents make it clear that the University only has jurisdiction in relation to criminal acts of a sexual nature where the alleged offence is proven. In my view that jurisdiction is limited to determining what penalty is to be imposed as a consequence of a finding that the alleged offence is proven.”
This means it is not the university’s job to investigate or determine the guilt in sexual assault cases. Lyon’s judgement brings into question the legality of the committees which have been established in universities across Australia to adjudicate these matters. Last month Senator Amanda Stoker grilled the university regulator, TEQSA, about the role of that organization in encouraging the establishment of these kangaroo courts. Lyon’s decision exposes TEQSA’s complicity in this issue as even more shameful.
Justice Lyons accepted Wendy Mulcahy’s concerns that a university committee is ill-equipped to conduct a fair investigation. She notes that “it would indeed be a startling result if a committee comprised of academics and students who are not required to have any legal training could decide allegations of a most serious kind without any of the protections of the criminal law.”
Since the University’s own policies state the University does not have jurisdiction over criminal acts, Lyons concludes that this “removes the jurisdiction of the University in relation to allegations of a criminal offence of a sexual nature.”
The Judge also drew attention to other legal cases which highlight the problems of University Disciplinary Boards providing fair treatment for the accused in such matters. “Those decisions outlined very real concerns about the disciplinary processes of the University and the lack of procedural fairness afforded to a student against whom allegations were made of sexual misconduct,” said Lyons.
This critical judgement has serious implications for our universities which have blundered into this territory in response to bullying from feminist lobby groups. It is quite extraordinary that none of the lawyers employed in the higher education sector anticipated the obvious legal pitfalls highlighted in Justice Lyon’s judgment – particularly in the light of the 200 plus cases where American colleges have lost significant law suits over failure to protect the due process rights of accused students.
Shame on our spineless university administrators for kowtowing to the tiny, noisy group of feminist activists, selling out the reputation of our universities, and exposing the entire higher education sector to the risk of law suits over unfair and illegal handing of such matters.