Originally published on February 12, 2017
Policies and practices to respond to sexual violence on Canadian campuses received much-needed attention in 2016. Both legislative and cultural changes are being made to address this pervasive issue that has been systemically ignored in the past.
Following in the footsteps of American campuses, Canadians are actively engaging in conversations about how to fairly and consistently respond to allegations of sexual violence. Prodded by an active government, colleges and universities across Ontario set down to draft or revise a policy relating to sexual violence within their institution. The Ontario government of Premier Kathleen Wynne was the first to introduce legislation mandating that every campus have a sexual violence policy in place, and now other provinces are following suit. Even campuses that do not have a legislative requirement have recognized the need for a sexual violence policy to be adopted or revised.
On March 8, 2016, just in time for International Women’s Day, the Ontario government passed Bill 1321: An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters. This highly anticipated and celebrated bill brought forward many changes to how campuses address allegations of sexual violence that occur within their institution. This article will focus on the changes Bill 132 made to the Ministry of Training, Colleges and Universities Act (the “MTCU Act2”).
The changes to the MTCU Act began by defining sexual violence as any sexual act or act targeting a person’s sexuality, gender identity or gender expression, whether the act is physical or psychological in nature, that is committed, threatened or attempted against a person without the person’s consent. It is important to note that this umbrella term includes various forms of sexual misconduct such as sexual assault, sexual harassment, stalking, indecent exposure, voyeurism and sexual exploitation.
The MTCU Act went on to require all colleges and universities to have a sexual violence policy in place, by January 1, 2017, that applies to students. Further, the Ontario Government passed Ontario Regulation 131/163: Sexual Violence at Colleges and Universities (the “Regulations”), which provided campuses with direction on the required contents of the sexual violence policy.
The changes to the MTCU Act and Regulations may create additional business for trained investigators, as campuses will likely be calling on external investigators to look into reports of sexual violence. The Regulations require campuses to set out the investigation and decision-making processes, who will be involved, and a description of the elements of procedural fairness that will be part of the investigation and decision-making processes.
Campuses will be held to a high standard of procedural fairness during the investigation process. It is well established that one important element of procedural fairness is the right to have an impartial decision maker. This allows external investigators to market their services to campuses as impartial decision makers, so the institution can ensure that it meets basic requirements of procedural fairness.
Some Ontario campuses have included an investigation process in their sexual violence policy that requires an external investigator. Further, there has been an emphasis on the investigator having specific knowledge and expertise in trauma-informed investigations. For example, Brock University’s recently adopted Sexual Assault and Harassment Policy4 requires that anyone conducting an investigation under the Policy be competent in conducting trauma-informed investigations. The Policy defines “trauma-informed” as a process that is informed by the understanding of how trauma affects survivors’ response to services, to resolution processes and to investigations. Trauma-informed processes should be carried out with the goal of avoiding survivor re-traumatization, increasing the safety of all, and increasing the effectiveness of interactions with survivors.
A great deal of research5 shows that individuals who have been traumatized due to sexual assault or harassment have a tendency to tell their story in unexpected ways. They may have difficulties recalling memories in a linear order, forget seemingly important details, or focus on specific sensations, such as smell. Trauma-informed investigators must build trust and rapport with survivors. They must ensure that they don’t allow common societal myths and stereotypes to enter into their credibility assessment, and they must postpone reaching conclusions until they have allowed the survivor to work through the neurobiological impacts the trauma may have had on them.
While the landscape for responding to sexual violence on campuses in Canada is changing and evolving, it is important that investigators stay up to date on trauma informed sexual violence investigations so they can provide campus clients with the best service available.