Hey there, time traveller! This article was published 11/1/2018 (1386 days ago), so information in it may no longer be current.
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.
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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."
Key paragraphs in the provincial government's extensive guidelines for implementing legislation on sexual violence on postsecondary campuses:
Institutions are not required to report on specific instances of sexual violence; however, if they choose to do so, confidentiality and privacy of all individuals concerned must be maintained.
The Act does not require institutions to investigate disclosures or reports of sexual violence. Institutions are strongly discouraged from establishing tribunals or quasi-judicial committees to make a determination as to the complaint’s validity. It is not necessary to establish guilt/innocence in order to activate a response protocol and provide the complainant/survivor with reasonable accommodation. Quasi-judicial committees or investigative processes can be harmful to the complainant/survivor and should only be considered in extreme situations and should be developed with significant input from law enforcement and experts.
Whatever led Prof. Steve Kirby to abruptly retire from the University of Manitoba last summer, the university can only reveal what the music professor allows it to, legal experts say.
The province recently issued extensive guidelines to last April's legislation on sexual violence on campus that prohibit making any names of victims and alleged perpetrators public.
But already existing was the Personal Investigation Act, which severely restricts what an employer can reveal when asked by someone's potential employer, said Pitblado Law partner Tracey Epp, who specializes in labour law for employers.
And prospective employers in Manitoba are severely restricted in what they can ask and what information they can search for and use when making hiring decisions, said U of M law Prof. Karen Busby.
The university and Kirby's wife have said repeatedly that Kirby chose to retire in late June.
He was subsequently hired briefly by the Berklee School of Music in Boston, which soon fired Kirby when the Boston institution learned of allegations of sexual misconduct in Winnipeg. Berklee officials have since lamented not talking to human resources at the U of M before hiring Kirby, but the university would have been able to answer only if Kirby used the U of M as a reference.
Even if Berklee had asked the U of M, said Epp, "You can not give any information on a referral request without consent."
Busby said a possible employer cannot formally or informally contact anyone not listed as a reference by the job-seeker. Someone sitting on a hiring committee cannot Google a job candidate and then share what she found with the rest of the committee, Busby said. And if any such information is acquired by means to which the applicant has not consented, the employer must disclose that to the job-seeker, she said.
"From an employer's perspective, it's a tough call," Epp said. "I coach employers to look at the CV and look for red flags."
Red flags could include unexplained gaps of several years in work experience, or a lack of references from past employers, she said.
"You have to have a spidey sense about you," Busby said.
A statement issued by Manitoba Education and Training and Manitoba Status of Women:
The Sexual Violence Awareness and Prevention Act was designed to ensure post-secondary institutions have policies in place. The intent is to help prevent incidents of sexual violence through education and training, and appropriately responding to incidents by providing support and accommodation to survivors.
Our expectation is all institutions will have finalized policies by Fall 2018. There are no timelines around reporting specific instances.
In all discussions with institutions on public reporting, Manitoba Education and Training (MET) has focused on ensuring policies have a victim-centred approach and the identities of survivors are protected. In most cases, this will mean that information reported publically will be done so in an aggregated fashion (for example, the number of incidents, number of student accommodations provided), without any specific information that could inadvertently identify survivors. This legislation covers institutions ranging from private vocational institutions with a small number of students to the University of Manitoba, so the ability to identify victims varies greatly.
The act requires institutions to publically report activities carried out under the policy and the results of those activities, not necessarily on specific incidences, to protect the identity of victims. This act does not replace regular due process of the justice or other appropriate systems to escalate issues to the appropriate authorities.
MET is not aware of any other jurisdiction where names of disciplined students or staff are made public.
In November’s Speech from the Throne, the province announced the creation of an interdepartmental committee on Gender Based Violence, chaired by the minister responsible for the status of women, Rochelle Squires. The minister committed to discussing this issue and seeking advice regarding the delicate balance between privacy, legality and support for survivors.