Critics say guidelines too vague on campus sex assault allegations
Provincially mandated policies must be in place this fall at colleges and universities
In a few weeks, thousands of Ontario university and college students will start their first full academic year since the province made it mandatory for postsecondary schools to have protocols in place for dealing with allegations of sexual assault.
That legislation was prompted by complex and sometimes fierce debate over the right to decide who knows about a sex assault allegation, the schools’ legal and ethical responsibilities to keep their communities safe and the fairness and adequacy of on-campus investigations.
Even now, with the new policies in place, that debate continues as sexual assault survivors say the guidelines for reporting, investigating and disciplining sexual assaults have fallen short, while critics insist campus officials are unqualified to take on the roles of police and the courts.
“It’s a good start, but it doesn’t go far enough to guarantee anything that would really change the situation for survivors,” said Tamsyn Riddle, a University of Toronto student who reported her alleged sexual assault to school officials in 2015 and thinks Ontario’s legislation is too vague.
“U of T now has a new policy, but . . . it doesn’t change anything in terms of guaranteeing that survivors will be taken seriously or that their cases will be dealt with quickly or that perpetrators will be punished.”
Colleges and universities are required to have policies and offer training to staff, but the province does not specify what those policies are or what training should include.
A Star survey of a dozen large universities across Ontario found that the policies are generally similar in their language about reporting sexual assaults.
Students who say they have been sexually assaulted are typically referred to a designated staff member or office, where they can choose to make a formal report.
Then, if the student wishes and/or the school officials deem it necessary, an investigation begins.
At universities surveyed by the Star, those investigations are typically performed by school administrators, external mediators, lawyers, human resource professionals or a combination of those. Decisions about discipline are most often handled by high-ranking university staff or student conduct committees.
Punishments for alleged student assailants can typically range from an apology to mandated training, to restrictions on where they can go on campus, to a full expulsion.
What’s lacking from the new policies is external oversight to ensure complaints are investigated, said Mandi Gray, who told York University officials in 2015 that she had been sexually assaulted by a fellow student.
“I have little faith that the legislation will provide a better response to those seeking to report sexual assault on campus,” she said.
If a student wants police to get involved in their case, most policies say campus officials will help them through that process. But if the reporting student asks that police not be called, the university will honour that request, barring special situations like an “imminent” safety risk, most of the policies say.
“If a victim does not want to pursue the case, then that’s their right. I think protecting confidentiality is a well-regarded principle,” said Deb Matthews, Ontario’s minister of Advanced Education and Skills Development.
Critics, however, say that regardless of what a complainant asks for, institutions such as colleges and universities have a legal and ethical responsibility to report allegations of sexual assault to the police, to prevent future incidents, to bring perpetrators to justice or to ensure that both victims’ and accused persons’ rights are respected.
“If someone suspects there has been a breach of the Criminal Code, the police should be involved,” said Glenn French, president of the Canadian Initiative on Workplace Violence, when asked how employers handle internal sexual assault reports.
“A simple consultation with the police might be helpful (to say), ‘Here are the circumstances. Should I be reporting this in a more robust way?’ rather than saying, ‘No, I’m not going to report,’ and waiting for another assault.”
The Toronto Police Service is supportive of whatever choice is made — whether or not they contact police, said a spokesperson, Meaghan Gray.
“However, even if a survivor does not want to proceed with a case, we see great value in sharing information with us. (It) could help us identify trends, public safety threats, links to cases from surrounding areas,” Gray said.
“Most importantly, we could use our relationships with community agencies to ensure the survivor gets the support she needs.”
But Joseph Neuberger, a Toronto lawyer who has represented three students accused of sexual assault in separate cases at Ontario universities, says schools should always report sexual assault allegations to police. If police ask to interview the complainant, the student can decide at that point whether to speak to officers, Neuberger said.
Students accused of sexual assault may not necessarily be afforded the same legal rights during a university investigation as they would during a legal investigation or in court, Neuberger said, though the academic punishments such as expulsion can be as serious as being charged with a crime.
“In order to protect their own integrity and liability, I think it’s incumbent upon (universities) to contact the appropriate authority,” Neuberger said.
University sexual assault policies seen by the Star all included the caveat that a complainant’s case may be brought to police if someone involved in the case — or the safety of a member of the “university community” — is at risk, or if legal investigation is “required by law” because the victim is a minor.
“That’s very rare,” said Ryan Flannagan, the University of Windsor’s associate vice-president of student experience. Under Windsor’s policy, he would be called upon to take part in investigations into alleged sexual assaults on campus.
“It would be fairly extraordinary circumstances where we would not follow the direction of a survivor (and call the police),” Flannagan said.
But saying it’s up to university staff to decide what constitutes a serious risk raises questions about how that decision is made, French said.
“What protocols or what means are you using to decide when you do and when you don’t report?” French asked. “If you’re not trained to do a robust or comprehensive threat assessment of that individual or that circumstance, then you’re just guessing.”
Advocates argue sexual assault survivors might not want police or the courts involved in their case for many reasons: They may worry police will not believe them. They may worry about being confronted by myths about how a survivor “should” react. They may have seen other cases where sexual assault victims have been subjected to tough crossexamination, their characters scrutinized and called into question.
The criminal justice system is failing on the issue of sexual assault, said Lenore Lukasik-Foss, director of the Sexual Assault Centre (Hamilton and Area). And students who have survived a sexual assault are not always looking for the kind of justice that police and the courts can provide. “We have survivors who are looking for alternatives (to police) and some kind of accountability. But we (also) know survivors on campus are looking for ways to be safe and to attend classes and be able to resume their lives,” Lukasik-Foss said.
Universities are uniquely positioned to meet some of the specific requests or needs of sexual assault survivors, several sexual assault experts and university officials said.
“Often student survivors say, ‘All that I need is to never see this (assailant) again . . . I want to be able to be in my dorm and not be bothered by the individual and be reminded of what happened,’ ” said Gabrielle Ross-Marquette, a spokesperson for an organization called METRAC that works to end violence against women.
“That’s not necessarily something that the courts can do, or it’s a long and arduous process (in the courts) for something that a university could accommodate through different measures.”
Asked if she believes university staff could adequately conduct investigations into criminal allegations, Matthews said she was confident schools could put the best possible policies in place.
“They’ve got really good capacity to put really good people in those roles that make those decisions. I think campuses really do have the ability to do this as well as can humanly be done,” Matthews said.
Even those universities that have had some form of sexual assault policy for years have come under fire from survivors who say their own reports of sexual assault were mishandled in some way by their schools.
At least three human rights complaints have been filed against Ontario universities in the past two years, all relating to the way in which cases were handled by officials.
“I have yet to meet someone who feels that their case was handled appropriately (by a university),” said Mandi Gray, who recently settled a human rights complaint against York University that alleged, among other things, that the school discriminated against her when she reported a sexual assault in 2015.
“Even when the perpetrator is found to have committed a sexual assault — rarely does it result in punishment.”
Mustafa Ururyar, the man accused of sexually assaulting Gray, was con- victed of the crime in 2016. His conviction was over turned on appeal last month. There has been no decision on whether he will face a retrial. Ururyar has said in court that he is innocent.
The University of Toronto took steps to ensure Riddle would not cross paths with her alleged assailant around campus, but the man was allowed by the university to enrol in the same large classes as her and he broke several of the restrictions put in place, Riddle alleges in her ongoing human rights complaint against the school.
Riddle, one of two University of Toronto students who have accused the man of sexually assaulting them on campus, told the Star she was concerned that her alleged assailant might assault someone else.
The first university official Riddle spoke with about her assault advised her not to go to police “because he had seen students who had done that and it didn’t work out well for them,” Riddle told the Star.
Riddle chose not to go to police and says that, given the difficulties many survivors have with the criminal justice process, she is glad she did not.
The University of Toronto said it could not comment on any aspect of Riddle’s human rights complaint and refused to tell the Star whether it had reported the incidents to police.
The man identified by Riddle did not respond to multiple requests for comment by the Star sent to him over the course of several weeks.
Sexual assault policies are expected to be revisited every three years and amended over time, Matthews said.
“I’m not going to pretend that it’s going to be perfect the first go ’round. This is an evolving issue and I’m sure that each institution in the next iteration will have changes they want to make based on the experience of the first three years.”
“I have yet to meet someone who feels that their case was handled appropriately.” MANDI GRAY YORK UNIVERSITY STUDENT WHO REPORTED A SEXUAL ASSAULT