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
National Conference on Campus Sexual Assault
Dan Michaluk I Partner, Toronto
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)
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”
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
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?
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
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