Sexual Assault in Higher Education - Law Policy and Practice
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Transcript of Sexual Assault in Higher Education - Law Policy and Practice
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National Conference on Campus Sexual Assault
National Conference on Sexual Assault for Higher Ed Administrators
Law, Policy and Practice
November 11, 2016
Dan Michaluk
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National Conference on Campus Sexual Assault
Dan Michaluk I Partner, Toronto
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National Conference on Campus Sexual Assault
Statutory initiatives
• Ontario(January 8, 2017)
• British Columbia (May 18, 2017)
• Manitoba – Bill 15• Nova Scotia – Bill 56
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National Conference on Campus Sexual Assault
BC and Ontario commonalities
• Themes – accountability, transparency, survivor support• Stand alone policy required• Based on consultation with students• Mandatory 3-year review• Mandatory annual report to the board• Provision for provincial data gathering
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National Conference on Campus Sexual Assault
BC and Ontario differences
British Columbia
• Management-approved policy
• Content yet to be prescribed
Ontario
• Board approved policy• Content heavily
prescribed via regulation (17 min requirements)
• The OHSA “closure duty”
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National Conference on Campus Sexual Assault
Ontario requirements that have raised questions
1. Inform students that institution will “appropriately accommodate” those who are “affected by sexual violence”
2. State that a victim “may choose not to request an investigation” and “has the right not to participate in any investigation that may occur”
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National Conference on Campus Sexual Assault
Ontario requirements that have raised questions
3. Include a “description of the elements of procedural fairness” that will be part of the investigation and decision-making process
4. Include a description of “the rights that participants may have to legal or other representation”
5. Include an example of interim measures that may be implemented
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National Conference on Campus Sexual Assault
The OHSA and closing an investigation
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National Conference on Campus Sexual Assault
The OHSA and closing an investigation
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• What does “the results” mean?• Whether each alleged act (which should be well
defined) occurred as alleged, did not occur, occurred in a manner different than alleged
• Whether the actions amounted to harassment (or sexual violence, as applicable)
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National Conference on Campus Sexual Assault
The OHSA and closing an investigation
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• Does “any corrective action” include the punishment given to the respondent?• Likely – note the word “any”
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National Conference on Campus Sexual Assault
The OHSA and closing an investigation
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• Does it require us to give the survivor the entire investigation report. Should we?• No and no• Investigation reports are sensitive• Your investigators need to operate in a zone of privacy• Be prepared to explain why you do not provide the report
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National Conference on Campus Sexual Assault
The OHSA and closing an investigation
• Should we tell a survivor, then, that he or she cannot disclose what we include in our “closure letter”?• No• Consider the content of your letter to be the survivor’s
information• You can talk to a survivor about the risks of “going public”
with your finding, but be careful in doing so
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National Conference on Campus Sexual Assault
The OHSA and closing an investigation
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• Questions for Ontario institutions:• Is there any principled reason for adopting a different
policy when the OHSA is not engaged?• If we implement policy that gives students a right to
be informed of punishment given to employees, will it violate our collective agreements?
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National Conference on Campus Sexual Assault
The reluctant survivor
• Is there a duty to investigate a report by a reluctant survivor?• There may be, and survivors must know• An institution must balance complainant choice and the
risk to others• Domestic sexual violence may not represent a
foreseeable risk of harm to others
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National Conference on Campus Sexual Assault
Confidentiality and its limitation
• Can only promise confidentiality to survivors, witnesses and others to a degree
• Must use information to investigate and take corrective action• Generally, you need to act on what you know• The exception is a disclosure to a university service provider
who provides health care or who you deem to be providing a confidential service
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National Conference on Campus Sexual Assault
Confidentiality and its limitations
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National Conference on Campus Sexual Assault
Off campus sexual violence• Institutions can enforce rules that protect their legitimate interests• The power to address off-campus student sexual violence is
relatively broad• Disciplining students for off-campus crimes against non-
community members is risky• There is a greater power to address the off-duty conduct of
faculty and staff
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National Conference on Campus Sexual Assault
The investigation and hearing
• Survivor participation in the process is often necessary• Universities owe respondents a high degree of fairness• X-examination of the survivor is often a right• Empower survivors via support in the complaint process• A capable tribunal will best support survivors
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National Conference on Campus Sexual Assault
Interim measures
• Take interim measures to meet a survivor’s demonstrated needs
• Impose summarily and given an opportunity for review• Have policy that makes clear interim measures are not
disciplinary and should not be understood to be disciplinary
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National Conference on Campus Sexual Assault
National Conference on Sexual Assault for Higher Ed Administrators
Law, Policy and Practice
November 11, 2016
Dan Michaluk