The last couple of months have been heavy. Students once again been on social media sharing their stories about being subjected to sexual violence, this time at Western University in London, Ontario, and at Bishop’s University in Sherbrooke, Quebec.
Subsequent protests served as manifestations of and outlets for their grief, pain, fear and rage. Unfortunately, these are familiar feelings for students and for those of us tied to gender-based violence (GBV) work. For many Canadians, it was surprising and distressing to hear that sexual violence on this scale happened again on a university campus. For us, it is frustrating and heart-breaking to know that it is not just happening again but is still happening.
The reality is, GBV is a crisis on post-secondary institutions (PSIs). Statistics suggest that 71 per cent of students at post-secondary institutions (PSIs) across the country have witnessed or experienced sexual assault, and 45 per cent of women and 32 per cent of men have personally experienced it. These numbers don’t account for trans- and nonbinary people, who face disproportionate rates of sexual violence. They also don’t include people who chose not to disclose their experience. GBV continues to harm so many, despite the work of student, staff and community advocates who have been fighting it for decades.
GBV encompasses a wide range of behaviours beyond what would be considered criminal. It seems to be baked into our culture, including on campuses, and we must respond to it. An effective campus response requires comprehensive prevention, education, support and trauma-informed accountability processes. Unfortunately, PSIs often point to their complaints processes to indicate that they are serious about GBV, but in doing so they also tend to cleave to a criminal court model, sometimes with disastrous results. Institutional complaints processes are based in administrative law, and their standards and procedures are completely different from those in criminal trials.
Campus complaints are different from those in the criminal legal system because they do different things. Criminal courts aim to keep society safe by incarcerating those who pose a danger, while PSI policies are designed to maintain safe learning, working, and, where student residences exist, living environments, in order to achieve their educational missions. Complaints can be made to the police under the Criminal Code of Canada, under the PSI’s policy, under both, or under neither. Most importantly, they are and should be kept separate.
We argue that treating a PSI complaint like a criminal matter is harmful for all involved: for complainants, who are excluded from participating in the process except to provide witness statements; for respondents, who are not given the space to be accountable for their actions without fear that what they say will be used against them in a criminal court; and for the undertrained, overwhelmed staff who are trying to navigate this thorny terrain. Unfortunately, in their efforts to be seen as taking GBV seriously, PSIs have adopted many of the most harmful elements of criminal trials without proper training or authority, and they have failed to provide complainants with some of the most basic protections against the use of victim-blaming evidence.
We are members of Courage to Act, the first national project to address and prevent GBV on post-secondary campuses, and we are co-authors (with Zanab Jafry) of A Comprehensive Guide to Campus Gender-Based Violence Complaints: Strategies for Procedurally Fair, Trauma Informed Processes to Reduce Harm, to be released November 23, 2021.
In our reporting, investigation and adjudication working group, we have been immersed in the world of institutional complaints processes. There is currently no standard practice, which makes it difficult to even describe the challenging landscape of campus GBV complaints. A complaint might fall under a sexual violence policy or a code of conduct, and the process might be dictated according to a PSI procedure or a collective agreement, depending on whether the person under allegation is a student, a staff member, a member of the faculty, or another type of employee.
Depending on the institutions, a complaint might be investigated by on-campus police, security or investigative services; sexual violence, human rights, or residence life personnel; conduct officers; human resources staff; or external investigators. They might have law enforcement, legal or workplace investigation training, or no training at all. To be clear, we are not talking here about a criminal investigation, but an investigation into whether the individual under allegation breached a PSI policy.
The investigation report goes to a decision-maker – who may be a dean, provost, president, panel or tribunal, or another administrator with delegated authority – to decide on the outcome. Administrative decision-makers are required by law to consider the specific contexts and participants, rather than relying solely on precedent from previous cases. Many campus decision-makers come from academic or educational backgrounds, and they are often ill-equipped to recognize and respond to the complexities of the task before them.
We knew from the start that outdated policies and a lack of training cause many of the problems that plague PSI processes and can be harmful to everyone involved. We also recognized that while it may be impossible to eliminate all instances of harm to participants in a PSI complaint process, the harm can be significantly reduced. Our strategies centre on the idea that appropriate policy, procedures and training can make the experience of going through the process less harmful for everyone.
We encourage PSIs to embrace a comprehensive prevention, education and support approach to GBV, offering a complaints process as only one of many options. That said, it is important to get them right. We argue that anyone investigating or adjudicating campus GBV complaints must protect against discriminatory treatment and victim-blaming questions.
Questions such as “How much did you drink?” “Why didn’t you scream or run?” and so many others are fixed on the behaviour of the complainant, instead of the respondent. They are all too common in campus complaint processes. Sadly, at the same time that PSIs try to look more serious by adopting criminal-style procedures, they have failed to bring in the protections already recognized in criminal courts.
Specifically, criminal trials include protections against attempting to convince a judge or jury that the complainant is more likely to have consented, or is less believable as a witness, by raising their prior sexual histories or expressions. PSIs need to do the same, not just at the point of judgment, but throughout their investigation and adjudication processes.
Failing to prohibit questions about a complainant’s sexual history allows sexual assault myths and stereotypes to seep into processes and decisions and reinforces a victim-blaming culture, with devastating effects on complainants and our broader society. Reporting and conviction rates in the criminal legal system bear this out. As a rough estimate, only 5 per cent of sexual assaults are ever reported to the police, and of those, only about 12 per cent result in conviction. Doing the math, only about 6 in 1,000 of those accused of criminal sexual assault are found guilty in a court of law.
Even where there are clear rules against using prior sexual history evidence, including in high-profile criminal law cases like the Jian Ghomeshi trial and the trials of Bradley Barton for the murder of Cindy Gladue, in which consent to sexual activity was presented as a defence, the misguided belief that sexual history or expression is sometimes relevant persists.
It is not surprising, then, that some investigators or administrators in campus processes are still under the mistaken impression that they should focus on the victim’s behaviour. If discriminatory and victim-blaming questions continue to be pursued where they are prohibited, it’s clear to us that the lack of explicit rules in PSI complaints processes only makes their use more likely.
In September, the Ontario government announced it would move ahead with regulatory changes that are intended to support student safety and improve institutional complaints processes. One change aims to ensure that a student who brings forward of complaint of sexual violence “will not be asked irrelevant questions during the investigation process by the college’s or university’s staff or investigators, including irrelevant questions relating to the student’s sexual expression or past sexual history.”
As we’ve argued, prohibiting questions relating to sexual history is an important and necessary amendment, but the language of “irrelevant questions relating to” sexual history or expression suggests that such questions might actually be relevant in some cases, a common misinterpretation that has harmful implications. Unfortunately, the lack of guidance or clarity on how we should define “irrelevant” in this context will only lead to confusion and inconsistent interpretations.
Because PSI complaints are about violations of policy, the relevance of prior sexual history questions rests entirely on how the various policies define consent. The majority of Canadian PSIs define consent as a voluntary, ongoing and contemporaneous agreement to engage in the specific sexual activity in question, with the caveat that consent can be revoked at any time.
That means that a person seeking to engage sexually with someone else must secure that person’s “yes” to the specific sexual activity at the time it is happening. A potential partner who is asleep, passed out, or incapacitated in any way cannot give consent, and consent cannot be inferred from their clothing, behaviour, relationship status, or past activities. The right question for consent is, “Are you okay with this right now?” When framed this way, prior sexual history or expression can, quite simply, never be a factor.
Ontario is one of four provinces – together with British Columbia, Manitoba and Québec – that require PSIs to have standalone sexual violence policies, and it could be the first to prohibit questions about a complainant’s sexual history or expression. We hope the drafters of this law will hear our concerns and ban all such questions, making it absolutely clear that a person’s sexual history and expression will never be relevant to their experience of sexual violence.