Because it doesn’t have in-depth, in-house/on-campus expertise in the complicated and delicate field, St. Clair’s administration will start “farming out” some of the investigatory procedures of its sexual misconduct policy to off-campus professionals.
Amendments to the comprehensive document (College Policy 3.34) were announced in early-October by Marc Jones, St. Clair’s Vice-President of Finance and Chief Financial Officer.
The Sexual Misconduct Policy covers the entire spectrum of such infractions – harassment, threats, physical violence, disputes over consent – involving encounters between student-student, student-staff, staff-staff, and even non-college individuals who suffer from such misconduct while on St. Clair’s property.
The Ministry of Colleges and Universities demanded that all postsecondary institutions develop sexual misconduct policies several years ago, and that they begin to track all such incidents and complaints in detailed fashion – including annual reporting to both the schools’ Boards of Governors and the provincial government.
St. Clair’s most recent report, covering 2019-20, was presented to the Board of Governors in May. It was documented in a Scene story at http://stclair-src.org/news/need-know-news/bofg-receives-report-sexual-violence-college
Among the recently made changes to the policy was setting it apart as a stand-alone document. Previously, it and its investigatory and disciplinary processes had been tied into the college’s Code of Student Rights and Responsibilities.
Now, Jones’ memo to staff noted, the Sexual Misconduct document constitutes a “completely independent policy”.
It is also – not surprisingly – much more legal and official.
Various sections – especially those dealing with physical violence (perceived, threatened and/or actual) – now demand substantial documentation in the form of formal written complaints, prepared by complainants, with the assistance and review of college officials.
Beyond that, the most dramatic change to the policy involves the most serious and complicated cases, when college officials will actually cease to be the chief investigators – and, instead, turn over the process to third-party professionals.
Those will take the form of lawyers with experience in sexual misconduct cases, who will investigate complaints – and provide recommendations – on the college’s behalf.
In a recent interview by email, college Associate Vice-President of Safety, Security and Facilities Management Rebecca Demchuk explained, “We don’t have the expertise in doing sexual assault investigations, even with the training that we did receive. We want to ensure that students have a fair, unbiased investigation,” which can best be achieved by using third-party, independent experts.
“We are still there to support the students, and feel that is where our role should focus,” Demchuk added. “Students have a great deal of anxiety when going through these investigations, and we will continue to support them and provide them with resources.
“However, when the institution is both investigating and trying to (provide) support, it at times seems conflicting to the students involved.” The addition of third-party input to the process resolves that situation.
This new wrinkle to the policy is worth quoting at length:
Both the Complainant and the Respondent have the right to procedural fairness, which must prevail in all investigations. In order to adhere to college policies, standards and applicable collective agreements, specific investigation and adjudication procedures will apply when the Respondent is a college employee, and another set of procedures will apply when the Respondent is a student. These procedures will include appeal procedures.
Once a Formal College Report, as defined by this policy, is filed by the Complainant , it shall be forwarded forthwith to the Vice-President, Human Resources, Safety, Security and Facilities Management who shall review it and within five business days, forward the Report to an external agency or person, retained by the college for investigating the matter and deciding whether misconduct has occurred. If the external agency or person makes a finding of misconduct, it shall also impose an appropriate penalty for same. The College Resolution Officer shall assist the external agency or person with the investigation, in accordance with direction received by the external agency or person, and with the permission of the Vice-President, Human Resources, Safety, Security and Facilities Management.
Upon receipt of the Formal College Report, the external agency or person, shall fix the Terms of Reference for the investigation. In recognition of the potential uniqueness of each situation, the external agency or person, shall have a discretion to customize the Terms of Reference that will include the process for gathering evidence and timelines for submissions of evidence and argument, provided that:
• The investigation and adjudication shall be in accordance with principles of natural justice and procedural fairness;
• Within five business days of receiving a Formal College Report, the external agency or person, shall fully inform the Complainant and Respondent of the Terms of Reference;
• The external agency or person shall complete the investigation and make a final decision no later than 35 business days of receiving the Formal College Report, provided that in extenuating circumstances, this timeline can be extended on application to the Vice-President, Human Resources, Safety, Security and Facilities Management;
• Each party shall be entitled to full disclosure in redacted format provided that redacted format does not include deleting the names of the Complainant or Respondent;
• Each party shall be entitled to a copy of any material filed by the other, including witness statements and argument, in redacted format;
• The Respondent shall be entitled to make full answer and defence to the allegations, including the right to file a written response to the allegations that would include a chronological statement of facts, witness statements if available, contact information of the Respondent and witnesses, any available documentary evidence, including but not limited to, emails, text messages, and social media posts; provided that the Respondent shall also be informed that there is a right to silence on the understanding that the decision will be based on the evidence acquired by the external agency or person and will be made in the absence of evidence from the Respondent should the right to silence be exercised;
• All evidence and argument shall be submitted in writing. Only in extenuating circumstances will in-person interviews be conducted. When such interviews are conducted, they will be in the presence of two or more persons and video-recorded. All video recordings will be maintained until the expiry of any appeal period for appeal purposes by the Vice-President, Human Resources, Safety, Security and Facilities Management;
• Given the emotional volatility of misconduct complaints, neither party will be in the same room at the same time, and neither will be allowed face-to-face contact or right to confront or cross-examine the other, except in extenuating circumstances;
• The onus shall be on the Complainant to prove the allegations on the balance of probabilities;
• Each party may retain counsel to represent them at any stage of the process at their own expense.
At the completion of the investigation, the external agency or person, shall provide a written decision by way of email to the Complainant, the Respondent, and the Vice-President, Human Resources, Safety, Security and Facilities Management, that will include:
• The conclusion of the investigation, including a finding of misconduct or a dismissal of the allegations;
• Reasons for the decision, including any findings of fact and reference to appropriate college policy;
• Direction to the Complainant and Respondent of their respective right to request an appeal of any portion of the decision;
•Any interim restriction to be imposed during the appeal period.
Sexual Misconduct Sanctions: Upon finding that the Respondent has engaged in sexual misconduct, the external agency or person may impose one or more of the following sanctions:
1. Official Warning
3. Behavioural Contract
7. Revocation or Withholding of College Credential and/or Academic Credit
9. Full Suspension
The appeal process will now, also, involve an off-campus third-party – and, in this case, a third-party different than the third-party who conducted the initial investigation and applied the resultant penalty. That means, for instance, that if Local Lawyer A had been called upon to conduct the initial investigation, found misconduct to have occurred, and set a penalty of dismissal from school, an appeal of that whole process would be conducted by Local Lawyer B – reviewing the previous investigator’s work, and either confirming or amending the decided-upon penalty.
That appeal process is final ... unless, of course, one of the parties in question chose to take the entire matter to the court system.
Nothing in this policy precludes a simultaneous investigation of a college-based incident taking place in the “conventional” law enforcement manner: by the police, as a criminal matter. Indeed, that probably will occur in the case of severe harassment, threats and/or physical violence.
The college’s Sexual Misconduct/Sexual Violence webpage, filled with information and resources, is at https://www.stclaircollege.ca/svp