A galvanizing process: Unpacking Ontario’s new postsecondary sexual violence policies

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How is Ontario’s new action plan on sexual violence playing out on Ontario campuses?

Earlier this year, Bill 132, the pivotal postsecondary legislation that marks one of the cornerstones of the Ontario government’s It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment, achieved royal assent. According to the legislation, by January 2017, all publicly funded universities and colleges in the province must ratify new sexual violence policies that conform to provincially legislated standards.

The Act outlines the province’s “intolerance” for sexual violence, sexual harassment, and domestic violence, and promises to protect “all Ontarians from their devastating impact.” Specifically, Schedule 3 amends the Ministry of Training, Colleges and Universities Act, stipulating that postsecondary institutions must produce new, student-centric policies on sexual violence and harassment on campuses.

In what is now perhaps problematically called the “post-Ghomeshi” era in Ontario (in reference to the 2014 sexual-assault charges against, and subsequent trial of, former CBC radio host Jian Ghomeshi), and in the face of ongoing reports from universities and colleges across the province of mishandled complaints of sexual violence, student groups actively encouraging non-consensual sexual encounters and—perhaps the most fraught—the push, largely from student groups (but also importantly echoed in the legislation itself), to recognize and address rape culture on campus, it comes as no surprise that on many campuses, the drafting of new sexual violence policies has become a galvanizing process. For the approximately one-quarter of campuses that have yet to ratify their policies, heated debates continue.

When the legislation was first tabled, faculty unions and associations, as well as umbrella groups such as OCUFA and CAUT (the Canadian Association of University Teachers) worried that it would place restrictions on academic freedom. These concerns are not unfounded: The definitions of “sexual violence” and “sexual harassment” within the policy, for example, are sufficiently vague that it is possible to imagine a scenario in which a faculty member could be taken to task for lecturing, researching, or writing on topics related to sexual violence.

However, as campuses began to struggle through the process of drafting new polices, academic freedom did not emerge as the foremost concern. Instead, discussions focused on a contest between reporting and prevention, due process, the term “rape culture,” and the extent of the university’s jurisdiction over its community members.

Reporting versus prevention

Alongside the enactment of the legislation and my own engagement with my university’s policy-development process, I led a team of five researchers from across the province in an investigation, funded by the Ministry of Community Safety and Correctional Services, into sexual violence on three campuses. Frustratingly, there appears to have been no communication between this ministry and the Ministry of Training, Colleges and Universities, despite our hopes that empirical data could assist universities and colleges in drafting their policies. Siloing endures in many large institutions, so in many ways this comes as no surprise. In other ways, of course, it serves as a mirror of the same problems we have seen unfolding on campuses with regards to sexual violence.

One of the core disconnections emerging from both our own research and the debates being had on various campuses is the false tension between reporting and prevention. In the past, colleges and universities have been loath to facilitate or disclose reports of sexual violence on their campuses. As we witness the increasing corporatization of universities and colleges, this reticence is unsurprising. Institutional reluctance to take stock of rates of sexual violence on campus is a risk management strategy that also bleeds into concerns about marketing, funding, and donations: There is a clear anxiety about putting in place any mechanism that would encourage college or university members to report sexual violence. No institution wants to be known as a so-called “rape campus.” Such a label would not only force an institution to take responsibility for and actively manage the risks its members face—it also looks bad from the point of view of potential donors and recruits.

In mid-2016, a student emailed me after our research report was released. She told me that she worked for her institution’s campus recruiting centre as a campus tour guide, and, despite the fact that she was well aware of the prevalence of sexual violence on her own campus, had been directed by her supervisors to emphasize the safety mechanisms the institution had in place (panic buttons, safe-walk programs) and to downplay any concerns raised by potential new students and their families about sexual violence on campus.

During the research for our report, administrators raised concerns about high-profile cases of sexual violence, while at the same time steadfastly denying that sexual violence was a problem on their campuses. As well, those who had experienced sexual violence routinely reported being placed under “gag orders” by their institutions.

The enactment of Bill 132 will force colleges’ and universities’ hands with respect to reporting. The amendments in the legislation place a heavy emphasis on reporting, directing colleges and universities to make reporting easier and to disclose their reports on an annual basis. Reporting mechanisms and procedures have therefore become the focal point of most new policies. As a result, and to varying degrees, the policies that have been ratified so far often labour over chains of reporting, investigation mechanisms, confidentiality, due process, and discipline. The irony is that the legislation also calls for a survivor-centred approach, and renders sexual violence and harassment unacceptable in postsecondary institutions. Such claims point to the importance of prevention, rather than reporting.

Our own research suggests that prevention, including accompanying education, is far more important to members of university and college communities than are reporting mechanisms. Those of us who work in the area of gender-based violence are well aware, unfortunately, that reporting rarely occurs in the aftermath of sexual violence and almost never serves survivors well, nor does it accurately reflect what they or their advocates would like to see in terms of social change. Rather, we heard repeatedly that the institutions we studied only paid “lip service” to prevention and education, often in the form of online education tools offered once during frosh weeks, and that these were routinely dismissed by the same frosh facilitators who were supposed to be modelling healthy sexual relationships.

If colleges and universities were to move to a model that balanced out prevention/education and reporting, faculty could play a key role in that change. As educators, we are well positioned to include education about sexual violence in our curricula, to offer seminars and forums on the topic, and to provide students as well as other members of the community with more complex and nuanced understandings of sexual violence, including the ways in which it intersects with homophobia, transphobia, and racism, and what it means to be sex-positive. We also have an opportunity to address and dispel rape myths, replacing them with empirically informed knowledge about the many facets that need to be considered in addressing sexual violence. Fundamentally, when prevention/education is the focus, we can move beyond institutional risk-management strategies and instead recognize sexual violence as a social fact of campus life.

By naming the problem, postsecondary institutions position themselves to be able to address sexual violence pre-emptively and positively, rather than simply reacting. In this vein, the University of Ottawa’s president showed great leadership when responding to the recent events concerning the science students on his campus. In early October, a science students’ association held a “Vet Crawl” that involved score cards that awarded participants points for their team by doing a variety of things, including exposing genitals publicly and having sex with one of the organizers. The University of Ottawa’s president’s public statement recognized that a culture of sexual violence exists and needs to be addressed. This is the point at which meaningful change can begin.

Rape culture

Much of the pushback against prevention, education, and even reporting initiatives arises out of concerns over the term “rape culture” and its implications. The term dates back to early 1970s’ second-wave feminism, and came into popular usage through texts such as Susan Brownmiller’s 1975 Against Our Will: Men, Women and Rape. The term also appears in the new provincial legislation. It is embraced by many as a shorthand to signal, on the one hand, systemic denial of the prevalence of sexual violence and of survivors’ experiences and, on the other, the tacit and/or explicit encouragement of sexual violence within sectors of a community. On campuses, for example, the term is often used when the finger is pointed at fraternities or varsity athletics clubs; however, as recent events at the University of Ottawa illustrate, the promotion of non-consensual sexual behavior is clearly not limited to these groups.

Rape culture is not without its critiques, however, which is much of the reason why it has become such a divisive term in debates on developing campus sexual violence policies. Rejectors of the term can be divided into two broad categories: those who maintain that sexual violence is not a problem on campus, or is not a problem that colleges and universities should be dealing with; and those who argue that the term fails to capture the complexities and intersectional nuances of sexual violence, including the hypersexualization and criminalization of racialized people, transphobia, and the condemnation of those who practise alternative kinds of sexual expression, such as “kink” and BDSM (bondage, discipline, submission, and masochism).

There is no pattern to the ways in which colleges and universities have responded to these concerns. Because the term rape culture is used in the legislation, it would seem that institutions are beholden to incorporate it in their own policies. This is not necessarily the case, however. McMaster University, for example, elects to omit the term completely from their policy. Ryerson University, though, defines the term in its preamble, suggesting that its acknowledgement of rape culture informs the institution’s policy.

Whether or not the term is used in a policy is not the most important point, however: it is whether the pervasiveness of sexual violence the term is intended to capture is reflected and addressed by postsecondary institutions. To this end, well-crafted policies need to include an acknowledgement that sexual violence is a social fact. Exceptional policies place this recognition within a more complicated analysis of intersectionality that recognizes how racism, transphobia, and homophobia are also important factors in crafting a fair and equitable response to sexual violence on campus.

Due process and university jurisdiction

Much of the anxiety about the implementation of the new sexual violence policies revolves around concerns about due process and university jurisdiction. The latter concern is perhaps the easier to address. Although the legislation appears to give sweeping authority to universities to intervene in relationships between campus members off-campus and outside of the realm of university activities, most of the policies ratified to date place limitations on this jurisdiction. Of course, as with any policy, how this actually plays out once the policies are implemented in 2017 and beyond remains to be seen.

Due process is a more difficult issue. Regardless of Bill 132, public institutions are required to have measures in place that address workplace harassment and violence. Any institution that fails to address these issues is contravening labour and/or human rights legislation (an avenue of recourse, incidentally, increasingly taken up by sexual violence survivors). Until Bill 132, postsecondary institutions were not mandated to have standalone policies related to sexual violence, although many already did. The Bill itself thus changes very little in terms of due process concerns. It has provided the opportunity, however, for colleges and universities to grapple with some of the more difficult issues that arise in the uncommon instances in which a survivor wishes to report an assault.

There are many issues to consider here, including providing safety to the survivor, the privacy of all parties, implementing a fair adjudicatory process, ensuring both complainants and respondents have whatever form of representation or support they choose, and, importantly, as the recent case of Mandi Gray at York University has shown us, ensuring that survivors are not placed under gag orders (a common practice revealed in our research) and are able to speak about their experiences without fear of reprisal. Gray spoke up about a sexual assault she experienced at the hands of another student. Her situation was unique in that her report to the police ended in a conviction (which is now being appealed). At the same time, Gray is currently in litigation against York for what she calls egregious mishandling of her case. Part of Gray’s claim is that the university threatened to sanction her if she spoke out about her experiences.

Will It’s Never Ok make campuses safer?

At present, we can only speculate about how these policies will play out in practice. The legislation mandates that postsecondary institutions review their policies every three years. Part of this review, presumably, includes measuring their effectiveness. Unfortunately, measuring the effectiveness of any sort of policy change on sexual violence is a very difficult task for two reasons: Survivors do not report and institutions do not want to receive reports even when they are submitted. Perhaps our efforts would be better spent investing in the kinds of change that are likely to be more effective (although more difficult to measure), through a focus on prevention and education. If Ontario campuses are to become places in which sexual violence is never okay, then ought not the emphasis be placed on stopping that violence before it happens, rather than on fretting over official institutional practices in the rare instances in which a survivor, in the aftermath of an assault, turns to the institution for redress?

As educators, we know that it takes a great deal of time and work to shift attitudes. However, at least for those of us who have been teaching for a long time, we also know that we can teach to change, and this, to my mind, sits at the heart of instilling the understanding that sexual violence is indeed never ok.AM

Dawn Moore is an Associate Professor in the Department of Law and Legal Studies at Carleton University.