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Neuberger & Partners LLP
University students are staging a protest over what is seen as a failure to address sexual assault on campus after shocking claims on social media and four official complaints made at Western University within the first week of school.
The university had previously been ridiculed for demanding an end to student parties for health and safety reasons. One response to their threat to expel students was to call them “tone deaf.” The university had also pre-warned that student behaviour was putting “our entire year in jeopardy.”
The robust policies that are in place in most universities have long been government mandated and, though they may be frustrating for complainants, they are very dangerous for those students who find themselves accused of sexual misconduct.
For example, the Policy at Western University makes a point of referring to complainants as “Survivors” throughout their Policy and Procedures. One would expect the footnote on that term to clarify that the label “Survivor” does not not presume the allegation to be true. Instead, the explanation is only to assure “Survivors” that they can also choose their own term such as “victim” or “thrivor.”
In the policy definitions, “Complaint” is described as the “sharing of information concerning an act of Gender-Based and Sexual Violence by a Survivor with the intention of initiating a formal process identified in the Policy.” A “Complainant” – the appropriate term – is described as “A Member of the University Community who has filed a Complaint. Thus all “Complainants” are deemed “Survivors,” “Survivors” are defined as “A person who has experienced Gender-Based and Sexual Violence.”
Farewell to the presumption of innocence.
Although we can all agree that gender based violence is a serious issue and students must be protected with measures in place to protect students and educate on the issues of sexual violence, elimination of due process and the presumtion of innocence ought not to be sacrificed and yet it is. Immediately upon receiving a complaint, the “Respondent” (accused) can be subjected to a variety of interim measures “including but not limited to” a variety of restrictions including banishment from campus. These measures are said to not be “punishments” but would clearly affect the accused’s ability to pursue his education prior to any finding of guilt.
Like some other universities, Western’s policy allows complaints to be made anonymously or by third parties but adds a codicil that “the University’s ability to respond may be limited by the information available or its ability to provide a fair process to the Respondent.”
This has been the case so far regarding claims made on the social media platforms Instagram, TikTok and Reddit stating that up to 30 women were “roofied” at one of Western’s residences. Social media users tend to take the #believe approach and university investigations don’t guarantee much better.
Many universities refuse to provide the accused with complete information about the accusations. Western’s procedure allows the Investigator to provide only a summary of the complaint. The accused can refuse to participate but it will not prevent the university from proceeding with the investigation and making a decision.
Additionally, like some other universities, Western allows for complaints to be made even if the alleged victim is not a student at the university. An investigation will be launched if the complainant was a member of the university at the time of the allegation, if the accused was a member at the time of the allegation or if he is a member at the time the complaint is made. There are no time limits on complaints.
If the accused decides to leave the university, Western’s policy allows the university to continue the investigation without their participation.
It is hard to imagine what more the protesters want from the university in terms of a complainant friendly policy. They are already assumed to be victims at the time of a complaint. The accused can already be banned from campus the moment a complaint is made. It’s possible that students just need to be better informed about the university policy to understand how easy it is to have an accused person thrown off campus.
In terms of incentive, an alleged victim can choose to merely “disclose” an alleged incident without making a formal complaint and still access numerous forms of academic or personal relief without question. These include but are not limited to: the ability to switch residences, permission to submit assignments late, write a make-up exam or withdraw late from a course without penalty. It can hardly be said that a person would have no reason to fabricate a sexual assault allegation under this policy.
For those who are accused, the consequences of an allegation are life changing from the moment a complaint is made. Not only is their academic career ruined, the potential for facing false allegations in criminal court is real. Anyone accused of such an allegation should seek the assistance of experienced legal counsel before making any decisions. Participation in a university investigation does not preclude the complainant from pursuing criminal charges as well.
One further issue that continues to remain a concern is misleading information that universities put out regarding the definition of “consent” and intoxication. Most of the information provided to students suggests being drunk eliminates the ability to provide consent which is not the law. This misleading information can and often leads to a biased view of an interaction leading to a false allegation.
Again, protection of students from any violence is vital. Protection of our children when away at university must remain a priority of the universities and police. That said, we strive for the same protection of members of our community at large and still demand due process and the presumption of innocence to be respected. The same must apply to university investigations and proper information on the law must be provided to students.