January 18, 2018

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Sexual misconduct law 'ethically troubling'

The provincial government has prohibited universities and colleges from making public the names of those accused of sexual misconduct on campus.

That’s “ethically troubling” if it’s shielding a perpetrator, a local ethics expert says.

Extensive guidelines recently issued by the province on implementing last April’s Sexual Violence Awareness and Prevention Act also tell post-secondary schools they are not required to investigate reports of sexual misconduct, and strongly discourage institutions from establishing tribunals to determine guilt or innocence of accused staff or students.

Legal experts said this week the legislation prevents the University of Manitoba from saying anything about the departure of internationally-renowned music Prof. Steve Kirby beyond what the university and Kirby’s wife have said all along — that he retired last summer despite subsequent allegations from several students of sexual misconduct.

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MATT DUBOFF PHOTO</p><p>U of M music Prof. Steve Kirby retired last summer after allegations of sexual misconduct against him surfaced.</p>

MATT DUBOFF PHOTO

U of M music Prof. Steve Kirby retired last summer after allegations of sexual misconduct against him surfaced.

The provincial government has prohibited universities and colleges from making public the names of those accused of sexual misconduct on campus.

That’s "ethically troubling" if it’s shielding a perpetrator, a local ethics expert says.

Extensive guidelines recently issued by the province on implementing last April’s Sexual Violence Awareness and Prevention Act also tell post-secondary schools they are not required to investigate reports of sexual misconduct, and strongly discourage institutions from establishing tribunals to determine guilt or innocence of accused staff or students.

Legal experts said this week the legislation prevents the University of Manitoba from saying anything about the departure of internationally-renowned music Prof. Steve Kirby beyond what the university and Kirby’s wife have said all along — that he retired last summer despite subsequent allegations from several students of sexual misconduct.

"I was surprised to see it put so strongly" in the provincial guidelines, said University of Manitoba law Prof. Karen Busby. "The focus of this act is to say, don’t get all caught up in what happened. It’s victim-centred in a very specific, narrow way."

"It’s really geared to what to do about a victim, rather than what to do about a perpetrator," said Tracey Epp, a partner at Pitblado Law who specializes in labour law for employers.

As for leaving it up to schools to decide what they’ll report publicly, "It’s just another level of statistical disclosure," said Epp. A university may choose to say it had four complaints the year before, upheld three, dismissed one, and that’s the extent of disclosure, she said.

The provincial government did not make Women’s Minister Rochelle Squires or Education Minister Ian Wishart available for interviews, but issued a statement in which the province said the legislation emphasizes prevention and providing accommodation and support to survivors.

Even if an incident leads to a criminal charge, said Epp, the courts could block the accused’s name to protect the identity of the alleged victim.

The provincial act is all about the victim, said Busby: "There’s nothing about creating deterrence, changing behaviour, punishment, an apology."

The University of Winnipeg Students Association does not favour public identification, said president Laura Garinger.

"It is important to us to have public reporting in this format, not only for the sake of transparency, but because it is an important step in acknowledging the prevalence of rape culture on our campus. Part of what deters survivors of sexual assault from coming forward is the risk they face in retaliation, further victimization, and losing their own anonymity," Garinger said.

 

"We do not want perpetrators of sexual violence on our campus, whether they are staff, faculty, or students, and it is the responsibility of the university to remove them, and not to shy away from condemning this crime," Garinger said.

But the founding director of the Centre for Professional and Applied Ethics at the U of M vehemently disagrees.

"The issue is, are you ethically required?" asked U of M ethics Prof. Arthur Schafer. "I can’t believe a privacy law would be used to shield abusers, molesters. If anyone has been disciplined, we don’t know.

"I find this policy ethically troubling — I think it’s indefensible that the identities of sexual predators be kept confidential. Anyone who’s found guilty for cause should be dismissed," and named publicly, said Schafer. No employer should ever sign a non-disclosure agreement, he said.

Busby said that confidentiality is crucial if the alleged perpetrator is a student, because the stakes are so high for the rest of a young person’s life. The person’s behaviour can be changed, she said, and meanwhile, he may very likely have been sharing courses and even classes with the victim, who must be accommodated and made to feel safe.

"If you publish the guy’s name, and everything is known, for the guy, that’s it.

"He’s got every incentive to fight," said Busby. A full investigation could take months and lead to a formal hearing that may not resolve the situation.

When it’s staff accused of sexual misconduct, she said, lawyers would advise a client to take a deal in which someone simply agrees to leave the university.

Postsecondary schools say they’re now consulting their campuses on implementation of the act, but all intend to comply with the province’s rules.

"The culture has changed fast — it’s the issue of our times," said one university official, who asked not to be named.

Said U of M public affairs executive directorJohn Danakas: "The intent of the university’s own policy on sexual assault, and in accordance with the spirit of the bill, is to be supportive of individuals who disclose sexual violence so that they are the decision-makers in how to proceed and so that they are provided with appropriate options. The policy helps ensure a safe work and learning environment. The university continues to be required to abide by provincial privacy legislation."

University College of the North communications director Jim Scott said from The Pas, "UCN is in the late stages of developing a new policy on this very issue. We hope to have it finalized within a month. We will most certainly be following any legislation and/or guidelines provided by the province."

nick.martin@freepress.mb.ca

 

 

 

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