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Vulnerability, neglect and abuse: The women at Western University | Marvin Zuker

Tuesday, October 12, 2021 @ 1:38 PM | By Marvin Zuker


Marvin Zuker %>
Marvin Zuker
Media reports suggest that on the night of Sept. 10, 2021, the Friday night of frosh week at the Western University in London, Ont., some 30 female students were drugged and sexually assaulted in residence.

No one to date has apparently filed a formal report with the London police. Why? Have we become a sick culture in denial? These horrors must become public. Awareness may make us better human beings. We cannot allow for victims’ humanity to simply be taken away from them.

Ontario Regulation 646/21 amending O. Reg. 131/16, made under the Ministry of Training, Colleges and Universities Act, was filed and published on Sept. 16, 2021, six days after the events at Western. Bill 132, Sexual Violence and Harassment Action Plan Act, S.O. 2016, Chapter 2, received royal assent on March 8, 2016; Schedule 3, Ministry of Training, Colleges and Universities Act RSO, 1990, c. M. 19 was amended “to impose various obligations on colleges and universities respecting sexual violence involving students.”

It is now five years later. We are still waiting for compliance.

Schedule 3 states in part:

17.(3)

Every college or university described in subsection (2) shall have a sexual policy that

(a) addresses sexual violence involving students enrolled at the college or university [...]

Ontario Regulation 646/21 states in part (relating to amendments):

(d.1) informs students that if they, in good faith, report an incident of, or make a complaint about, sexual violence, they will not be subject to discipline or sanctions for violations of the college’s or university’s policies relating to drug or alcohol use at the time the alleged sexual violence occurred; and …

14. A statement that students who disclose their experience of sexual violence through reporting an incident of, making a complaint about, or accessing supports and services for 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.

2. This Regulation comes into force on the later of March 1, 2022 and the day it is filed.       

It should be noted that the word “student” is not defined. Suppose I, as a student, was sexually assaulted and I withdraw from university. Am I still a student? What policy is available to me? It should also be noted that these amendments do not take effect today, tomorrow, next week or next month, but next year. A priority?

The Ontario Evidence Act should be further amended to provide the protection afforded pursuant to s. 278 of the Criminal Code. Students should be protected from having to share and provide the kind of personal information that is set out in s. 278.1, particularly when there would be an expectation of privacy. As set out in s. 278.5(2)(f)(g)(h):

(f) society’s interest in encouraging the reporting of sexual offences;

(g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and

(h) the effect of the determination on the integrity of the trial process.

Arguably, Ontario Regulation 646/21 falls dramatically short, if not dangerously flawed, having at least regard to any process which is not gender biased and with different evidentiary standards being applied. It is too simplistic to suggest that victim blaming and hostile questions are the cause of failing to report. The Ministry must provide the direction, legislatively or otherwise, in addressing major issues of concern such as a student’s “right” to direct cross-examination in a live hearing.

In the decision of Haidak v. Univ. of Massachusetts-Amherst 933 F.3d 56, 69 (1st Cir. 2019) the court states that “In the hands of a relative tyro, cross-examination can devolve into more of a debate. And when the questioner and witness are the accused and the accuser, schools may reasonably feat that student-conducted cross-examination will lead to displays of acrimony or worse. … [W]e are simply not convinced that the person doing the confronting must be the accused student or that student’s representative.”

In a criminal context s. 486.3(3) of the Criminal Code provides a court with the residual authority to appoint counsel to conduct a cross-examination of a witness in certain circumstances. A student can certainly represent himself or herself and perhaps be represented by counsel but as indicated by the Supreme Court of Canada, “the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth” (see R. v. Levogiannis [1993] 4 S.C.R. 475 at para. 13).

On March 11, 2021, President Joe Biden issued an Executive Order on Guaranteeing an Educational Environment Free from Discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity.

If a student reports “in good faith” without malicious purpose, or not in a wanton or reckless manner (my words), then I would go one step further. Students should be statutorily immunized from potential personal liability. Statements made by students in administrative hearings must enjoy “absolute” privilege so that open reporting would be encouraged, not discouraged. Students must be protected against claims for defamation. (See e.g. Razavi v. School of the Art Institute of Chicago 2018 IL App (1st) 171409.)

If a college or university is legally required to investigate then any statements made during the investigation should be privileged. The protection relating to defamation should additionally be extended to the provisions of ss. 137.1(3) and (4) of the Ontario Courts of Justice Act; in other words, coverage under anti-SLAPP legislation. We need to be able to provide students with an expedited process for dismissing vexatious claims against them, consistent with the test set out in 1704604 Ontario Ltd. v. Pointes Protection Association 2020 SCC 22. If no malice, then the matter should be disposed of quickly (see Hill v. Church of Scientology of Toronto [1995] 2 S.C.R. 1130).

There is the social science of “restorative practices,” which has its focus on reducing crime and violence and improving behaviour and societal relationships. Is there a fit in this context? Since sexual misconduct may well have an underlying criminal component to it, any sense of an informal procedural may not be viable. Students should never be pressured to opt for mediation over any formal investigation. This is not a mere “dispute between students” or something students “should work out” with their attackers. We forget too quickly the added trauma meetings can and will cause.

On the flip side there is the argument that students do not report because they don’t want to get the other student in trouble. Would an informal process help? I am not so sure.

Say you are a college or university student; any school, any location. You are sexually assaulted.

Do you know where to get support? No.

Do you know how to get a rape kit done? No.

Do you know how to report it? No.

Do you get brushed off by the school?

Are your recollections questioned?

Are you encouraged to do nothing?

When it comes to sexual abuse, it is very simple. No means no. No means no whether you are drunk or you are sober. No means no if you are on a bed or in a dorm or on the street. No means no even if you said yes at first and you changed your mind. No means no. Consent cannot be procured from someone who is incapacitated. Very simple.

Information resolutions may not serve as a replacement for a broken adjudication system. Students today are using social media to document what they see as a betrayal of the promises made to keep them safe. Social media enables students to be able to find out much more quickly how much their school cares or does not care. How much and how often does the culture of sexual assault and drug abuse take place at individual fraternities, and yet there is not one word about regulating them?

Civil rights activist Fannie Lou Hamer had a famous quote: “I’m sick and tired of being sick and tired.” It refers to the systemic, continuous and the unrelenting failure of institutions we were told to trust. Where is that trust?

Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is associate professor at Ontario Institute for Studies in Education/University of Toronto, where he teaches education law. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.

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