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Canada Sexual assault policies at universities have students asking: Are these new systems any better than the courts?

A student at the University of Guelph says the university failed to respond appropriately after she complained about being sexually assaulted by another student.

Galit Rodan/The Globe and Mail

Hope, a 19-year-old student at the University of Guelph, can recount a lot of details about the day she was sexually assaulted – and what happened afterward. The man who she says raped her was a student at Guelph, whom she met on a dating site. Two months after their online meeting – on their first date – he assaulted her. University officials investigated the incident and eventually ruled in her favour, ordering the man to take a course on consent.

But Hope can’t tell you whether he ever took that course, or if he complied with any of the other measures the university imposed. Knowing he had would bring her comfort, she says, yet university officials won’t disclose that. “I don’t know if he’s done the training, if he’s done a presentation on consent to class, if he’s written an article. They don’t tell me that,” she said.

The lack of information is just one of the frustrations she has experienced since reporting the incident to Guelph officials. What kind of court, she asks, even if it is unofficial, sentences a man to taking a course for a sexual assault that occurred, repeatedly, over three hours? She had expected that the man would be suspended or expelled. Instead, he received what she feels is a slap on the wrist.

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“If he had [only] physically assaulted me and they could see the bruises, they would do more,” she said.

The outcome of the case, and the investigation process, have led her to question whether universities are any better at supporting survivors than criminal courts. Theoretically, in university tribunals, survivors should not face the kind of adversarial cross-examination demanded in criminal courts, where the Crown must prove its case beyond a reasonable doubt. University tribunals have a lower burden of proof. Like civil suits, campus investigations decide whether a complaint is justified by assessing the evidence each party provides and determining which version of events is likelier to have happened.

But that different standard did not protect Hope from being questioned about what she wore to the meeting, or prevent investigators from showing the man the statement she gave about the emotional devastation she experienced in the wake of the incident. Days after the date, she talked to police, but dropped the case, afraid of the emotional toll that criminal proceedings would entail. After the unsatisfying outcome of the university investigation, she changed her mind about going to the police. Guelph police confirmed the man is facing a charge of sexual assault.

Little consistency between policies

Hope’s case is one of three that were formally investigated under the University of Guelph’s new sexual-violence policy, passed at the end of 2016. The new guidelines responded to Bill 132, provincial legislation mandating that each college and university in Ontario must set up a stand-alone policy for handling incidents of sexual violence. The bill also requires institutions to collect information about the prevalence of sexual assault on campus, and review and revise their policies every three years, if needed. British Columbia, Nova Scotia and Manitoba have passed similar laws.

Bill 132 also gave each college or university flexibility around what to include in its policies. According to some advocates and student groups, that has led to a lack of consistency across institutions that has deprived survivors of the fast and fair support they need.

“The provinces mandating these polices is an incredibly important first step, but now they are just patting themselves on the back and not thinking of the nuances,” said Caitlin Salvino, the chair of Our Turn, a national group that represents 28 student organizations.

Related: McGill University under fire for response to complaints against ‘predatory’ professors

Read more: Ontario launches sexual-violence survey for students in effort to combat campus harassment

Our Turn designed a scorecard for university sexual-assault policies that was marked by student associations at 14 schools across the country. The assessment found that every one of the 14 had a sexual-assault policy that was posted online, but the scope and content of these policies differed widely, as reflected in page lengths that can range from seven to 30 plus. At some schools, everything that should happen when a student first reports an assault is laid out in one document. At others – as is the case at Guelph – a complainant would have to consult as many as three separate policies to understand what happens when a complaint is launched.

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Our Turn also found little consistency between policies. A minority of the schools that were rated mandate explicit training on sexual harassment and assault for investigators, a minority allow the complainant to talk about the case to anyone other than a support person, more than half threaten to punish students who launch claims that are deemed to be “frivolous” (sowing doubt in survivors about reporting) and only half promise that women who report an incident will find out what sanctions have been ordered against a perpetrator and whether they’ve been met. Some schools may not even provide a full report of the investigation to the complainant at the end of the process.

Since the introduction of Bill 132, few cases in Ontario or other provinces have become public, but advocates say they are increasingly hearing stories like Hope’s, of students who feel that some combination of these problems leave students unsatisfied and angry. In some areas, students may indeed be better served by a criminal process, they say.

“It seems like institutions have created these policies that use judicial processes, but left very few [legal] protections that survivors have,” Ms. Salvino said.

Our Turn chair Caitlin Salvino is seen in this 2017 file photo.

Dave Chan/The Globe and Mail

A court, for example, may not have allowed discussion of what Hope wore, and would not have banned her from discussing the case with anyone but a support person.

In March, Our Turn took their concerns about Bill 132 to Mitzie Hunter, the Minister of Advanced Education. In a letter, the group asked that the legislation be amended to include nine minimum standards that must be present in every policy on sexual violence at a university.

The government said “in three years they will go back to it, and we said ‘No, something needs to be done now because people are being hugely harmed,’ ” Ms. Salvino said.

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Universities can update policies any time, Ms. Hunter said in a statement.

“[We] expect institutions to make every effort to update and modify their policies in the way that best meets the needs of their students and campus communities, and to listen to students when they voice concerns,” she said.

“This is new ground for us”

Hope would like to waive the anonymity that media outlets and the courts grant to victims of sexual assault. There should be no stigma attached to sexual assault, she says.

But Canada’s legal system prohibits naming the parties in a sexual-assault case, and so The Globe and Mail is not identifying her. Hope is the pseudonym the young woman chose.

She recounts the details of what happened calmly, almost flatly. She was finishing up high school when the incident occurred.

At first, in the days after she met the man at his apartment, she did not remember the details, only that she was experiencing pain. But then flashbacks came, images she pieced together, a pattern of recollections that is consistent with what the science of trauma has found for survivors of assault.

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She told a friend what she remembered.

“That’s rape,” her friend said. “You have to go to the police.” The hospital gathered evidence for a rape kit, and then Hope talked to the police, before deciding not to pursue a police investigation.

A month or two after the incident, when she received her acceptance letter to Guelph, she hesitated. “That was the hardest decision, but I ended up accepting because I did not want him to run my life,” she said.

But she when she saw the man on campus, she had panic attacks, flashbacks and nightmares.

That’s when she decided to report the incident to the university.

According to the account of what happened that she later provided to Guelph’s three-person investigation panel, and then in two separate interviews with The Globe and Mail, the man first asked if he could kiss her.

“And I said, ‘I don’t know.’ That’s not saying yes,” she recalled in an interview with a Globe reporter.

Repeatedly, she told the man that she was inexperienced and not ready to engage in further physical contact.

“I said, ‘I’m not ready. I’m really bad at this,’ because I thought that would make him stop, that it would make it stop, but it didn’t,” she said.

Instead, the university report states, the man told her he was acting as her “teacher.”

According to the report, the man, who was also interviewed by the panel, did not disagree with Hope’s memories.

“When interviewed, the respondent affirmed that the complainant made those statements. The respondent maintained that the complainant provided consent; however, he did not provide any evidence to this effect,” the report states.

Instead, the man said that in their texts and prior conversations, Hope had given him the “understanding … that she was okay with having sex.”

The panel – made up of a faculty member, a student and Anny Strojin, Guelph’s human-rights advisor, referred to the university’s definition of consent: It is “ongoing, informed and voluntary” and “cannot be obtained through threats, trickery, coercion, pressure or other forms of control…”

Using this definition – which is similar to the definition of consent in Canada’s criminal code – the panel said the man “engaged in physical activity that was of a sexual nature without [Hope’s] consent,” assaulting her in seven different ways.

“The respondent was insensitive to the complainant’s feelings and to her emotional and physical well-being. He could see that she was in pain yet he chose to continue to engage in non-consensual sexual activity,” the report concluded.

But under Guelph’s sexual violence policy, the panel does not decide on sanctions. That falls to Brenda Whiteside, the associate vice-president of student affairs.

Ms. Whiteside read the report, talked to Ms. Strojin and then contradicted some of the investigation panel’s findings. “[Intercourse] occurred without the consent of the complainant,” she wrote in her summary of the case – which was also read by The Globe and Mail – but Ms. Whiteside also wrote that there appeared to be consent to some initial level of intimacy.

She placed the man on non-academic probation and recommended the course on consent: Any subsequent breaches of the policy could lead to “more significant charges,” she wrote in her report. The man is expected to graduate this spring.

Because the case has now landed in criminal court, Ms. Whiteside declined any comment on its specifics. But each case is different, she said.

“Let’s say intercourse without consent: Was it a stranger, were drugs involved, was there a previous relationship? There are a lot of factors. …”

When a complainant and a respondent know each other, memories of what happened can differ, she said. “In some respects I do feel that sexual violence is sexual violence, no ifs and buts about it, but I think if you were to say if a stranger drugged someone’s drink, and took them home and raped them, it’s a deliberate act, versus someone who had sex and the consent was not there along the way, those types of things make things more complicated,” she said.

Even as the university has introduced a specific policy for sexual violence, punitive measures are still decided based on a general code of student conduct that governs other types of campus misbehavior, such as drinking or damage to property.

“This is new ground for us,” Ms. Whiteside said. “What I normally do is test it against any other types of penalties that are out there … internet fights, harassment … I say: How does that align here? I think it’s safe to say that we are starting to set a kind of precedent of what that looks like,” she said.

For Ms. Salvino, of Our Turn, penalties for sexual violence should not be drawn from the same playbook as damage to campus property. A stand-alone sexual-violence policy must not lean on existing codes of conduct.

Another protection advocates want to see is a clause in campus sexual-violence policies that matches Section 276 of the Criminal Code, known as the rape shield law. Under 276, prior information about a complainant that can be used to undercut their credibility, or suggest that the complainant was likely to have consented, cannot be introduced in a trial.

When Our Turn rated and ranked existing sexual-violence policies across Canada, they found only one university – McGill – included a provision similar to section 276. McGill’s policy specifies that members of the university administration must “refrain from questions or comments that imply judgment or blaming of the survivor.”

Hope returns several times to her shock, hurt and anger when she read Ms. Whiteside ’s comments on what she was wearing. The fact that she had on black Calvin Klein underwear is noted in both the investigation panel report and the summary.

“[Ms. Whiteside] makes sure to say it was black, like it means something,” Hope said. The day before she met the man she had gone shopping, and there was a sale, Hope said, rushing to get the words out. “I bought a shirt and jeans and a bra, and it was a seven-for-$30 deal,” she said.

Well intentioned in “dangerous ways”

Asking universities to adjudicate sexual assault is fraught with problems, said Dawn Moore, an associate professor of law and legal studies at Carleton University.

In 2016, Dr. Moore, together with a team of researchers, submitted a report to the Ministry of Community Safety and Correctional Services on how Ontario universities were responding to sexual violence. The government commissioned the study and paid $236,220 for it. But while university, college, community and student groups all submitted material and appeared before the legislative committee that studied the bill, Dr. Moore’s report, and its 18 recommendations, was never publicly released by the government.

“I thought [Bill 132] was well intentioned in some of the most dangerous ways,” Dr. Moore said. “It was riding on an important awareness of the prevalence of sexual violence. ... I say it can be dangerous because what you have is people with no experience and no knowledge of the subject crafting legislation that is going to affect the lives of the people who are going to be impacted by this legislation,” she said.

Among the recommendations in Dr. Moore’s study was the need for training for anyone who was involved in hearing and deciding on sexual violence investigations, including education on biases and myths about women’s sexual behaviour and “date rape.”

Her report also recommended oversight of policies by an external community group. If victims – or alleged perpetrators – disagree with an investigation’s conclusion, they could appeal to this independent body.

“The struggles for oversight on university campuses are being fought in the trenches because there was nothing in [Bill 132] that related to oversight,” she said.

In the 2018 budget, the federal government appeared to suggest it may take on that role. Colleges and universities that do not adopt best practices – a term not defined in the budget – in dealing with sexual assault could lose federal funding (which in Canada’s federal system is primarily research money).

How the idea would be implemented is still not clear.

“The intent is to work with universities and colleges to improve actions to date, and not to withdraw funding,” said a spokesperson for Status of Women Canada. If “after consultation and continued discussion, a postsecondary institution does not take action, the government will consider other options to eradicate gender-based violence on campuses once and for all,” the statement said.

In June, the University of Guelph will present the results of a review of how it has handled complaints under the new policy and present recommendations for revision to the board of governors. Hope’s case is part of that review.

Minimum standards recommended for sexual-assault policies on campus

These are the minimum standards that Our Turn – a national student group representing student organizations that are lobbying for reform to sexual-assault policies – believes all policies must include. Our turn has asked the Ontario government to amend Bill 132 to include these measures.

1. A stand-alone sexual-assault policy that does not refer to other university policies, such as a student code of conduct.

2. Defining the extent of student consultation.

3. Protections from face-to-face interactions with the complainant.

4. Timelines of no more than 90 days for investigations.

5. Protections from gag orders so that survivors who complain to their institution are not silenced during the process.

6. Taking intersectionality into account when addressing sexual violence. All women experience sexual violence, but women with marginalized identities experience sexual violence at much higher rates and require different forms of support to heal, Our Turn says.

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