Canada: Campus Sexual Assaults: Policy and Liability Considerations

INTRODUCTION

Public awareness about the issue of sexual assault has been growing, and post-secondary institutions need to be equipped to deal with these allegations within the campus community.

In addition to working toward preventing sexual assaults on campus, colleges and universities need to be prepared to handle allegations of sexual assault and ensure both the complainant and the accused are treated fairly. Having a sexual assault policy in place can provide guidance if such allegations arise.

SEXUAL ASSAULT – DEFINITION AND PREVALENCE

Sexual assault is unwanted sexual activity, which includes grabbing, kissing, fondling, and rape.¹

On campuses, sexual assault may involve students, professors, staff, or even visitors or other outsiders who are not part of the campus community. Anyone can be a victim of a sexual assault, but the majority of victims in Canada (not just on campus) are females between the ages of 15 and 24.² We do not need statistics to tell us that this demographic makes up a large part of campus communities across Canada.

Unfortunately, sexual violence is common across campuses in Canada with 1 in 5 women experiencing sexual assault at colleges and universities.³ Another unfortunate statistic is the low rate of reporting by victims of sexual assault. The CBC recently conducted a study and found that there were 700 reported⁴

IMPORTANCE OF HAVING A SEXUAL ASSAULT POLICY

Post-secondary institutions have a duty to provide a safe learning environment where students, faculty and staff are free from all sexual violence. When a complaint of sexual assault occurs in a post-secondary environment, the institution should have a process in place under a sexual assault policy so that it can investigate the incident and impose sanctions when appropriate.

Having a stand-alone sexual assault/sexual violence policy in place is important, as colleges and universities are under increasing pressure for how they handle allegations of sexual assault. Statistics from 2014 indicate that as of that date, only 9 out of 102 post-secondary institutions in Canada had a sexual assault policy.⁵ Since then, several provinces in Canada now have legislation requiring post-secondary institutions to implement sexual violence policies. Unfortunately, Atlantic Canada is lagging in this area and there is no such legislation in New Brunswick, Newfoundland and Labrador or Prince Edward Island. In Nova Scotia, the provincial government signed a memorandum of understanding in 2016 with its ten universities requiring these institutions to have specific sexual violence policies.⁶

If your institution does not have a sexual assault policy in place, now is the time to implement one. Even if you currently have a policy, all policies should be reviewed periodically and it is important to make sure that your sexual assault policy is current and robust.

The decision of Mpega c. Université de Moncton⁷ highlights the importance of having an adequate sexual assault policy in place. In that case, a student filed a complaint under the University's sexual harassment policy against another student, alleging he had sexually assaulted her. The University's complaints committee heard the complaint, ruled in favour of the complainant and submitted its report to the president of the University who concluded the respondent was guilty of a "serious offence" and expelled him.

The New Brunswick Court of Appeal overturned the decision on the basis the committee had exceeded its jurisdiction. Specifically, the Court noted that the sexual harassment policy defined "sexual harassment" as requiring an element of repetitive conduct over time, rather than a single event such as sexual assault which was the case in that situation.

The Court also found the committee exceeded its jurisdiction by conducting an inquiry into whether the respondent had sexually assaulted the complainant – an alleged criminal offence – thereby invading the federal government's exclusive jurisdiction over criminal procedure. The Court of Appeal clarified that the committee's mandate was limited to hearing complaints filed under the policy, determining if the behaviour complained of fell within the policy and deciding whether there had been a breach of the policy.

The Mpega case is a warning to colleges and universities about their jurisdictional limitations with respect to criminal matters. It should be noted that an encroachment on the federal government's jurisdiction is permitted when the encroachment is merely incidental to a finding within the university's jurisdiction. In other words, if a university were to find that a student violated its sexual assault policy, any encroachment would be incidental to the university simply enforcing its policies.

Any inquiries into a sexual assault complaint should focus not only on whether the sexual assault occurred, but how it impacted the victim as a student, whether the victim's grades suffered, and whether the incident of sexual assault hindered the victim's ability to study in an environment free from sexual violence.

It is also important to note that the committee, in accordance with the policy, suspended its investigation into the complaint until the police had concluded their investigation and only resumed after it was decided no charges would be laid against the respondent. This is a good practice to avoid tainting or interfering with a criminal investigation.

Taking these steps and making findings such as these will help with establishing that a finding of a criminal act (i.e. sexual assault) is only incidental to the main finding that the alleged perpetrator breached a university policy.

POTENTIAL LIABILITY OF COLLEGES AND UNIVERSITIES

In addition to protecting members of the campus community from sexual violence, colleges and universities have another compelling reason to make sure they take sexual assault seriously – post-secondary institutions can be held liable to victims.

Recently, two class action lawsuits were filed by former college wrestlers at Ohio State University. The former athletes allege officials at Ohio State knew that a team doctor was abusing them during medical exams in the 1980's and 90's. The plaintiffs claim Ohio State is liable because officials "had actual and/ or constructive notice of sexual assault, battery, molestation, and harassment committed" by the team doctor. The plaintiffs also claim there was a culture of sexual abuse which was reported to administrators and to the head of the athletic department but that the University turned a blind eye.⁸

In Canada, several sexual assault victims have also sued universities. One plaintiff is suing Queen's University and two other defendants for $950,000 in damages claiming the University is vicariously liable for alleged sexual assaults by a residence facilitator and a house president that took place in the University's residence. One of the plaintiff's claims is that the University did not have adequate information or education provided to students about sexual assault. When interviewed, the plaintiff stated that the University needed to take responsibility for its students because "[h]aving students come and pay really high fees to come to university, you expect you're going to be in a safe learning environment".⁹

In 2009, the victim of a sexual assault in a university chemistry lab sued Carleton University for over $500,000 claiming the University was negligent in failing to take adequate security measures on campus. The plaintiff claimed damages for mental suffering and psychological harm, out-of-pocket expenses and future loss of earnings.¹⁰

CONCLUSION

As outlined above, colleges and universities need to take sexual assault seriously to ensure safety on campus. If your  institution does not currently have a sexual assault policy in place, you should consider implementing one. Stewart McKelvey can assist with reviewing existing policies, developing and drafting new policies, advising on your institution's responsibilities and potential liabilities, providing in-house training for staff, legal advice and representation and ongoing support.

1 "The Law of Consent in Sexual Assault", Women's Legal Education and Action Fund. https://www.leaf.ca/the-law-of-consent-in-sexual-assault

2 Shana Conroy and Adam Cotter, "Self-reported sexual assault in Canada, 2014", Canadian Centre for Justice Statistics, July 11, 2017. https://www150.statcan.gc.ca/n1/pub/85-002-x/2017001/article/14842-eng.htm

3 "Sexual Violence on Campus", Canadian Federation of Students-Ontario, December 2015. https://cfsontario.ca/wp-content/uploads/2017/07/Factsheet-SexualAssault.pdf

4 Timothy Sawa and Lori Ward, "Sex assault reporting on Canadian campuses worryingly low, say experts", CBC News, February 9, 2015. https://www.cbc.ca/news/canada/sex-assault-reporting-oncanadian-campuses-worryingly-low-say-experts-1.2948321

5 "Sexual Violence on Campus", Canadian Federation of Students-Ontario, December 2015. https://cfsontario.ca/wp-content/uploads/2017/07/Factsheet-SexualAssault.pdf

6 Anqi Shen, "Universities across Canada implement sexual violence policies", University Affairs/Affaires universitaires, August 4, 2017. https://www.universityaffairs.ca/news/news-article/universities-acrosscanada-implement-sexual-violence-policies

7 2001 NBCA 78 8 Jean Casarez, Laura Dolan and Holly Yan, "Class-action suits claim OSU ignored doctor's alleged sex abuse" July 18, 2018, CNN. https://www.cnn.com/2018/07/17/us/ohio-state-class-action-lawsuit-strauss/index.html

9 Iain Sherriff-Scott, "University faces lawsuit over residence sexual assaults", Queen's Journal, June 25, 2018. https://www.queensjournal.ca/story/2018-06-25/news/university-faces-lawsuit-over-residence-sexualassaults

10 Karen Pinchin, "Sex-assault victim sues Carleton for negligence", Macleans, August 10, 2009. https://www.macleans.ca/education/uniandcollege/sex-assault-victim-sues-carleton-for-negligence

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.