An Australian National University residential college failed its duty of care to a former student who was raped because it failed to follow its own safety policy against a backdrop of "a systemic culture of unruly behaviour", the victim's lawyer has argued.
In 2020, the ACT Supreme Court found John XXIII College at the university to have breached its duty of care to the former student before and after she was raped by a fellow student in 2015.
The court found the offence happened in a Civic alleyway during a "pub golf" hazing ritual and awarded the victim $420,000 in damages.
This event involved student leaders taping bottles of alcohol to the hands of participants, who would have to drink a certain amount to make par.
Justice Michael Elkaim found the college had failed in its duty of care to the victim by "sending unruly students out into the night" after they made a mess at the college.
The judge said the college knew they were likely to get more drunk and that there were vulnerable young women among them.
The college then launched an appeal in which the hearing began this week.
On Friday, the victim's lawyer, Fiona McLeod SC, argued in the ACT Court of Appeal that the college knew about the event and the risks of harm to students but did not follow its own policy to ensure safety.
Ms McLeod in citing emails and other documents said the college knew about such risks since at least 2012.
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She said such events and behaviour "had been going on for years and in the past has resulted in sexual assault claims and warnings from the university to develop prevention and mitigation strategies".
"The appellants do no challenge that evidence," she said.
Ms McLeod said her client's "right to drink is maintained and co-exists alongside the right of the college to place certain controls and risk measurement controls on that activity instead of what did happen".
"They simply ignored the fact that students were frequently engaging in this behaviour and thereby placing themselves at risk of harm," she said.
The lawyer also cited its complaint-handling process lacking in which the victim was "met with offensive remarks and a sort of cross examination expressing cynicism about her allegations and seeking to test them".
"The perpetrator's admission and subsequent denial was preferred to her account," Ms McLeod said.
"The respondent alleged that the risk of harm in terms of the way the complaint was handled was also well known to the college."
The college's lawyer, Michael Windsor SC, previously told the hearing that his client did not have power to stop the woman going into the city to drink.
He disputed Justice Elkaim's finding that the woman was already intoxicated by the time she left the college to head to Civic on the relevant night and argued students had only been told to leave the residential wings rather than the college premises as a whole.
The court has reserved its decision.
