INVESTIGATIONS RELATED TO SEXUAL ASSAULTS ON UNIVERSITY CAMPUS
Our Firm prosecutes, investigates and defends sexual misconduct and harassment allegations arising on a University or College Campus. We are retained by University students to defend allegations of sexual misconduct advanced by another student and enforced by the University’s mandatory investigative policies. The Firm also works for independent businesses required to conduct a third-party investigation into sexual misconduct or harassment alleged to have happened within the company.
The Firm’s comprehensive background in criminal defence associated with sexual assault, fraud and harassment, is why we work with unions, academic institutions and insurance companies. We also represent the interests of the members and employees of large businesses and governments facing allegations of regulatory misconduct.
Sexual assault and harassment on university campuses is an issue that has become a prevalent topic of conversation in recent years. With the rise of the MeToo movement, colleges and universities all over Canada have begun implementing detailed policies to deal with the reporting, investigation and punishment of sexual assault and harassment allegations on campus. Such policies generally apply to students, professors, administrators and anyone else working or studying on campus.
It is important to remember that proceedings related to investigations on University Campus can spill over into criminal charges quite easily. The problem which can happen, is that the accused who provides a statement in the context of a sexual misconduct investigation, can potentially self-incriminate, since this statement can later be used in criminal court. This ultimately creates a dangerous scenario where the accused’s right to silence has been circumvented.
In the Firm’s File No. 1***6 it defended a university student in Ontario alleged to have committed sexual assault and assault on exchange when the complainant was intoxicated. Universities always retain private lawyers to interview all parties and gather evidence. The investigator produced an alleged text message admission and apology for the sexual acts, which the Firm ultimately proved was being taken out of context. After several months of litigation, the matter was resolved entirely without any breach of the University’s sexual violence policy.
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Frequently Asked Questions
Disclosure vs. Reporting
Confidentiality of Reporting
Possible Outcomes of the Investigation
Possible Consequences of Committing Sexual Violence on Campus
Prior to 2016, there was no legislation in Ontario dealing with sexual assault and harassment on college and university campuses. With sexual assault and harassment on campuses becoming a more recognized issue, the Ontario government enacted Ontario Regulation 131/16: Sexual Violence at Colleges and Universities. This set of regulations puts in place a statutory framework for all college and university sexual assault and harassment policies. The regulation helps to ensure that all colleges and universities in Ontario have the appropriate policies in place to not only protect the campus community, but also to deal with incidents of sexual assault and harassment on campus when they occur.
Specifically, the regulations stipulate that all colleges and universities in Ontario must have a sexual assault and harassment policy in place which includes information regarding where support services on campus and in the community can be accessed. The policies must also inform students that the college or university will appropriately accommodate any student affected by sexual violence and that if such accommodations are required the student must reach out to the school to request them, inform students that they are not required to make a formal report regarding the incident of sexual violence if they do not wish to and that the failure to make a report will not affect their ability to access support services, and finally inform students of the processes and procedures for filing a report with the school, as well as the processes and procedures of any subsequent investigations and/or disciplinary actions.
In addition to having an appropriate policy in place, Ontario Regulation 131/16 also stipulates that all colleges and universities must publish their sexual assault and harassment policy, making it widely available to all members of the campus community. Additionally, the regulations also require that all colleges and universities provide adequate training as it relates to sexual violence on campus to the following persons; senior administrators of the school, members of the schools governing board or council, staff, faculty or any other employees on campus and students enrolled at the college or university.
Disclosure vs. Reporting
Members of the university community who have experienced sexual violence on campus may make either a disclosure or a report to the appropriate university authorities. Disclosure refers to a member of the university community disclosing that they have experienced some sort of sexual violence on campus. A disclosure alone does not initiate an investigation into the allegations, nor does it initiate a process to address the issue. Disclosures are often made when complainants are seeking support services but are not yet ready to officially report their experience to authorities. Members of the university who receive a disclosure from another member of the community hold the information in confidence unless otherwise given permission by the complainant. Many colleges and universities have a wide array of support services available for victims of sexual violence. A member of the university community who wishes to disclose their experience of sexual violence in order to access support services on campus should never be pressured to make a formal report until they feel comfortable doing so.
In addition to disclosing an incident of sexual violence on campus to appropriate college or university authorities, victims of sexual violence may also file a formal report with the school. Filing a report generally has very different ramifications than simply making a disclosure. Filing a formal report will initiate an investigation into the issue which will in turn initiate a process to address the alleged incident. Most campuses offer opportunities to make reports online, over the phone and in person. It is important to note that in an emergency situation, 911 should always be the first point of contact. Once a formal report has been filed with the school against a member of the university community, the college or university will have jurisdiction to launch an investigation into the matter. The respondent will be notified of the allegations against them and both the complainant and the respondent will be entitled to have qualified legal counsel present with them throughout the process.
Confidentiality of Reporting
When a report (or disclosure) is made to a university regarding sexual assault or harassment, that information will be kept confidential in accordance with appropriate legislation. Such information may only be disclosed to select individuals, as is necessary to properly address the issue. Generally, universities will not keep such information confidential in situations where there is a risk of imminent harm to the university community, to the individual making the report or to anyone else, or where reporting is required by law including incident’s involving minors or where mandatory reporting applies as a result of human rights or occupational health and safety legislation.
Once a formal report of sexual assault or harassment has been filed with the college or university, the appropriate authorities will review the report and determine whether it falls under the school’s sexual harassment on campus policy. Most universities will set up an interview with the complainant to gather any additional information that may be required. In addition to gathering additional information, this meeting may be used to present the complainant with possible support services that are available. In addition to support services, many universities also offer other forms of support such as separation of the parties on campus, class and/or schedule changes, deferral of exams or assignments, emergency bursaries, changes in housing and/or informing the respondent that their behaviour is unacceptable. These forms of support will generally be utilized at the point of first contact and generally continue throughout the investigative process, should an investigation ensue.
In situations where the college or university determines that further investigation is not warranted into the matter, the complainant will generally have a short period of time to appeal the determination. In situations where the college or university determines that a full investigation into the allegations is warranted, an investigator will be appointed, and a thorough investigation will be conducted.
Whether or not a full investigation will take place will also depend largely on whether the complainant decides to disclose the alleged sexual violence, or whether they decide to report it. As mentioned above, colleges and universities may only launch an investigation when a report has been made. A disclosure alone will not suffice, as it is entirely up the complainant whether or not they wish to pursue further action. Even where a formal report is made, the complainant may choose to request that an investigation is not done, although the university may carry out the investigation without the cooperation of the complainant.
Where it has been determined that a full investigation into the allegations of sexual violence on campus is warranted, the college or university will appoint an investigator to the case. Generally, the investigator will either be a member of the university community, or a member of the general public with the skills, knowledge, training and/or experience to thoroughly and completely conduct the investigation. Once an investigator has been assigned to the case, a formal notice will be sent to the respondent, notifying them of the allegations against them and that an investigation has been launched. It should be noted that both the complainant and respondent have the right, and are encouraged, to obtain qualified legal counsel at this point in the process.
In most cases, once an investigation has been launched, the investigator will give the respondent the opportunity to make full answer to the allegations against them, either in writing or orally. In situations where the respondent decides not to cooperate with the investigation, or make answer to the allegations against them, the investigator may continue without their cooperation. If the respondent does decide to cooperate and participate in the investigation, the details of the respondent’s response to the allegations will be forwarded to the complainant for review. Generally, the complainant will have the opportunity to answer to the respondent’s response to the allegations. In addition to their responses, both the complainant and respondent will also have the opportunity to provide the investigator with any further evidence they deem relevant, including the names and contact information of actual or potential witnesses.
Once the investigator has collected all of the appropriate and relevant evidence on the matter, they will compile a detailed report presenting all of the information collected, while always remaining fair and impartial. This report will then be provided to the college or university’s Office of Safety or analogous office for review. The Office of Safety will then inform both the complainant and respondent in writing of the outcome of the investigation.
Possible Outcomes of the Investigation
Once a thorough investigation has been completed and the report reviewed by the Office of Safety on the college or university campus, a decision will be made on how to further proceed. In situations where the respondent was a student, the report will be reviewed by the Provost or Vice-Provost (may differ on some campuses), who will determine whether the matter should be brought before a Committee to determine whether or not the student violated the college or university’s Code of Student Conduct. Where a student is brought before a Committee for a hearing regarding whether or not they breached the Code of Student Conduct, the Committee will hear all of the evidence in the case and make a determination as to whether or not the respondent is guilty of committing sexual violence against another member of the university community.
In cases where the respondent is a member of the college or university’s staff, such as a professor or administrator, the report will be reviewed by the appropriate university official (generally Vice-President or Human Resources designate), who will determine whether or not sexual violence occurred as alleged. The university official will also determine the best solution to the issue. The respondent and the complainant will both be notified of the decision in writing.
Possible Consequences of Committing Sexual Violence on Campus
A determination that a member of the university community has committed an act of sexual violence on campus will have very serious implications in the life of the respondent. Possible outcomes include; reprimand, imposing further education and training, corrective action, modification of duties and/or supervision, suspension, termination or expulsion, entering into a collective agreement or Memorandum of agreement or forwarding the findings of the investigation to police so criminal charges can be laid. Some campuses also utilize mediation or informal resolution; however, these processes will only be appropriate where both parties have consented and where such mediation or informal resolution does not require the parties to meet face-to-face. Regardless of the outcome, a finding that an individual committed sexual violence on campus is very serious and could lead to very serious consequences for the accused. As such, those who have been accused of committing an act of sexual violence on campus are advised to contact qualified legal counsel immediately.
Is Sexual Assault Different on Campus?
As a general rule, sexual assault is the same anywhere. However, many universities have sexual violence policies and specific definitions with respect to sexual misconduct. For example, what may not be sexual assault in the criminal code may nonetheless constitute sexual violence on university campus.
How are Investigations Conducted on Campus?
Campus investigations are very similar to workplace investigations for sexual misconduct. The university will generally hire an independent lawyer to conduct interviews with both the complainant and accused. An investigator's brief will then be provided to school officials for adjudication.
How to Defend Sexual Misconduct on Campus?
Allegations of sexual misconduct on campus are serious because the institution can interfere with the person's transcript and ability to graduate. An accused should get legal advice prior to meeting with the investigator because anything said can be forwarded to the police for investigation. Defending these allegations is no different than any other criminal charge, most of the time it comes down to credibility and reliability.
Who Can be Investigated for Sexual Misconduct?
Anyone who is part of the university, whether that be a student or faculty can be investigated for sexual misconduct. Most investigations involve episodes between students where alcohol may have been involved. For the most part these allegations also occur off campus.