Don’t touch, do tell

Before taking the job as director of human rights and equity at Simon Fraser University more than 11 years ago, lawyer Brenda Taylor says she would pick up her Vancouver Sun and, seemingly every morning, would read about the university on the front page under headlines about sexual harassment.

Indeed, back in the mid-to-late 1990s the media were busy reporting on several Canadian cases of students making allegations of sexual harassment against people in university leadership positions. One of the most sensational was the Marsden-Donnelly case that went before an internal SFU panel in 1997.

The complex case involved 22-year-old student Rachel Marsden, who accused her swim coach Liam Donnelly of sexual harassment. The complaint was upheld by the internal panel, and Mr. Donnelly was dismissed. But he later put forward evidence suggesting that Ms. Marsden had harassed him, rather than the other way around. He was eventually reinstated, and questions were raised about the competence of the panel, the fairness of the procedures and the secrecy of the proceedings. The administrative fallout was substantial; the president resigned after taking medical leave for an illness that developed against the backdrop of the case.

Fast forward to today. Allegations of sexual harassment still occur on Canadian campuses, but there have been changes. Some professionals who handle such allegations on campuses say there are fewer incidences of female students accusing faculty or other authority figures of sexual harassment. And while some people may still look to a hearing panel, lawsuit or human rights tribunal for a solution, it is now rare for complaints to be resolved in this way.

At SFU, for example, Ms. Taylor says that it’s unusual if more than one sexual harassment case heads outside the university every five years. One of those rare cases went before the criminal court last year, she says, resulting in special conditions being imposed on the respondent, who was a student.

Why the apparent shift? People who work in the field say that improved policies, which place an emphasis on mediation or internal processes for resolving complaints, is one explanation. Better education for faculty, staff and students, and a general awareness of where “the line” is when it comes to sexual harassment are also factors. And the fact that more women hold positions of power in universities today has also had an impact, they add.

“I would say the work has changed drastically from the way it was done in the late ’90s,” says Ms. Taylor.  “And the policy changes reflect that.”

SFU’s current policy – revised in the wake of the Marsden-Donnelly incident – defines the role of the director of human rights and equity, outlines that person’s duties and responsibilities to the complainant and the respondent, clarifies the need to remain impartial, and sets out strict rules around maintaining confidentiality of information.

Neena Gupta, a partner with the law firm Gowling Lafleur Henderson whose work focuses on employment and human rights matters, says one of the biggest changes is that almost all universities now have good codes of conduct in place and have built protection against harassment into various collective bargaining and faculty agreements.

Some procedures have changed, too. Many policies now spell out the steps for dealing with sexual harassment complaints – in-house, if possible. Dalhousie University’s policy, for example, updated in 1999, says that incidents may be resolved by informal procedure, mediation or formal procedure; the latter takes place only if informal or mediation routes have not been pursued or have failed to resolve a complaint.

“We’re by no means perfect because there are still problems that need to be addressed,” says Bonnie Neuman, vice-president of student services at Dalhousie. “But I think what we’ve done now on campuses is create the policy and the processes and the people to actually get in and address situations before they escalate.”

The vast majority of, if not all, Canadian universities have a sexual harassment office, equity office or human rights office that tries to achieve an early resolution to complaints.

Many of the complaints that do come forward tend to be more subtle, more like gender discrimination, says Cindy Player, director of human rights at the University of Victoria. As a result, they can be addressed without going to a tribunal or a formal process.

At the same time, the kinds of thorny issues and roadblocks that presented themselves in the SFU incident 13 years ago are part and parcel of what university sexual harassment officers deal with, says Paddy Stamp, who has been the University of Toronto’s sexual harassment officer for the last 18 years.

“I mean, everyone who walks in my door could present me with something tricky and tangled. My job,” she says, “is to untangle and not be tricked.”

In January 2000, University Affairs published the article “Sexual relations between students and faculty” by Shirley Katz, then associate to counsel at York University. Ms. Katz wrote the article to raise awareness in the university community of “the risks inherent in these relationships for the student, the faculty member and the university.” That piece was the most requested article that University Affairs ever published (in the days before all of the magazine’s content was posted online).

By the late 1990s, wrote Ms. Katz, there were just four reported legal cases of sexual harassment regarding faculty members and students in Canada, decided either by a human rights court or a university arbitration panel. At the time, Ms. Katz noted that “most do not know or fully understand how risky, problematic and dangerous an intimate relationship between a professor and a student can be.”

Using these four cases, Ms. Katz illustrated the power imbalance between a faculty member and a student, and the issue of conflict of interest and what constitutes “consent.” She explained that faculty members, as the powerful persons in a professor-student relationship, “will be held accountable and liable, should a student with whom they had what they thought was a consensual sexual relationship make a complaint of sexual harassment. In the end it will be the student, and not they, who will prevail.”

While most universities do not outright ban faculty-student relationships (and such a ban might not hold up in court), many spell out policies about such relationships. For example, Carleton University’s human rights policy, introduced in 2001, says no one in a position of authority is permitted to grade or supervise the performance of any student, or evaluate an employee or a colleague, with whom they are sexually involved or have been within the past five years. The university requires the individual in the position of authority to make timely disclosure of such relationships to their dean or director.

Education has also had an impact. Universities now offer training for faculty, staff and students on what constitutes sexual harassment and what the remedies are. Equity offices and student groups regularly run workshops about consent and hold discussions about the grey areas of sexual harassment.

At Carleton, this includes offering training once or twice a year for new faculty and mandatory training for all staff, including scenario-based workshops that give examples of situations that may not be clear-cut. The office runs presentations for frosh facilitators, residence fellows and international students, to give them basic awareness of the issues as well as information about the services that are available on campus.

The work is ongoing because the university community is one whose members are constantly changing. Ms. Stamp, U of T’s sexual harassment officer, says she has seen significant changes involving the university’s long-term members.

“I know that, for instance, if I get a complaint from somebody that they’ve been catcalled while passing a building site on campus … I can almost guarantee that [the perpetrator] is not going to be a U of T employee. And you know, 20 years ago I think that that was not the case,” she says.

Ms. Taylor at SFU notes that two or three years have gone by when she has not had a single case involving a female complainant who is either a student or a secretary against a professor or supervisor.

But, the simple fact that most cases are resolved before they escalate doesn’t mean that sexual harassment incidents at Canadian universities are declining. While some have seen a drop in the number of sexual harassment cases and a shift towards other types of complaints, officers concede they are aware only of the cases that come to them. Despite today’s procedures that are more open and accessible than in the past, many people are concerned that a large number of incidents remain unreported.

“I think it’s extremely difficult to know how much of this continues to go on, because it has always been the case that the vast majority of victims of sexual intrusions like this do not make public complaints. So we have never seen more than the tip of the iceberg in the public aspect,” says Constance Backhouse, a professor of law at the University of Ottawa.

A 2006 report by the American Association of University Women says that nearly two-thirds of college students experience some type of sexual harassment, but less than 10 percent of them tell a college or university employee about their experiences and even fewer officially report them to an officer.

There is also the particular, and ongoing, concern about student-on-student incidents. At the University of New Brunswick, Matt Abbott, a student and past coordinator of a group called Voices Against Sexual Aggression (or VASA), says that certain aspects of sexual violence are almost normal within the dating culture in campus communities. Many students arrive without much knowledge about sexuality and sexual violence, he says. So VASA runs a “dating basics” workshop to emphasize assertiveness and give students tools to learn how to seek consent.

Anoushka Ratnarajah, a University of British Columbia student who coordinates workshops for the student union’s Womyn’s Centre, says that “the line” with respect to sexual harassment and the issue of consent are still fuzzy for many students.

Indeed, U of T’s Ms. Stamp says that there is a huge change for people when they arrive at university – often they are part of an adult community for the first time in their lives and engaging in new experiences.

“I don’t think we can necessarily anticipate that the level of sexual harassment is going to drop, because we’re always going to be dealing with new students who are inexperienced and who make mistakes,” she says. “And we know that, to some extent, the phenomenon of sexual harassment can be attributed to people making mistakes.”

Read the column by Shirley Katz Sexual relations between students and faculty, originally published in 2000.