Sexual Assault in Higher Education - Law Policy and Practice

National Conference on Campus Sexual Assault

National Conference on Sexual Assault for Higher Ed Administrators

Law, Policy and Practice

November 11, 2016

Dan Michaluk


Dan Michaluk I Partner, Toronto


Statutory initiatives

• Ontario(January 8, 2017)

• British Columbia (May 18, 2017)

• Manitoba – Bill 15• Nova Scotia – Bill 56

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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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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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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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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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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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• Does “any corrective action” include the punishment given to the respondent?• Likely – note the word “any”



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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



• 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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• 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?


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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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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Confidentiality and its limitations

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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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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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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 Sexual Assault for Higher Ed Administrators

Law, Policy and Practice

November 11, 2016

Dan Michaluk