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“Passing the Problem” of Sexual Misconduct: An Unsettled Question on Privacy and Information Sharing

Written by: Laxana Paskaran for Courage to Act’s RIA Working Group

Introduction 

In 2017, a professor left the University of Manitoba amid sexual misconduct allegations and received $286,000 after information about the allegations was shared with their new employer, Berklee College of Music. In other instances, post-secondary institutions have staff disciplinary policies and collective agreements that allow for employees’ records of sexual misconduct to be erased after a short time period (12 months at McGill University and Concordia University, 24 months at University of Alberta) if the employees do not incur additional reports of misconduct.

Over the last few years, there has been a growing concern about sharing information when students, staff or faculty members move on to a different institution amid sexual misconduct allegations. There are also legal considerations, such as privacy legislation at the provincial or territorial level, limiting what information can be shared between institutions in such cases. With these limits to information sharing, how can post-secondary institutions avoid “passing the problem” in cases of sexual misconduct?

Why is this an unsettled question? 

The ambivalence surrounding this issue results from conflicting views on confidentiality and information sharing, and the need to balance privacy with the obligation of the PSI to ensure a safe learning and working environment for their community members. On the one hand, some believe that the right to privacy is paramount and should be respected at any cost. On the other hand, some argue that “passing the problem” onto other institutions without sharing information about why an individual was removed or left their institution is irrefutably unethical.

Freedom of Information (FOI), Freedom of Information and Protection of Privacy (FIPPA), and other privacy regulations make this issue complicated for PSIs and their community members. Generally speaking, PSIs may disclose information where disclosure is necessary to fulfill the purpose for which the information was collected. However, there are some exceptions to this rule. For example, there are rules, guidelines and exceptions outlined by provincial and territorial laws regarding when information must, must not, or may be disclosed in response to an FOI request. PSIs may also disclose personal information when that individual permits them to do so. What strategies and promising practices, then, are available to PSIs to assess whether a potential student or employee will be a safe addition to the community?

How are we going to try and answer this? 

Expert panels consisting of individuals with years of experience with supporting students, faculty, and staff; adjudication; providing legal guidance; and research informed both the “Comprehensive Guide to Campus Gender-Based Violence Complaints” (available on the Courage to Act Knowledge Centre) and our first White Paper, “What is the Role of the Post-Secondary in Regulating Student-Instructor Relationships?

We will similarly approach this unsettled question under the guidance of an expert panel. This will include an administrator from an American university who will provide insights into the challenges of implementing promising practices such as sexual harassment reference checks for potential employees. A current student union executive will provide student perspectives on this issue. Further, the expert panel members bring perspectives of professors and legal scholars who will speak to the policies, collective agreements and legal limitations surrounding this unsettled question. Finally, an information and privacy officer will provide key insights into the practices currently outlined by post-secondary institutions on this issue.

An analysis of major themes, recommendations and guidance around this issue will be summarized and released in a white paper in Spring 2023. This discussion and whitepaper will contribute to a national conversation to address the limitations posed by privacy laws and policies and their impact on maintaining a safe learning and working environment for students, staff and faculty members.

The Reporting, Investigation and Adjudication (RIA) Working Group focuses on formal campus gender-based violence complaints processes, with an aim to infuse trauma-informed practice into procedurally fair processes and reduce the harm to complainants, respondents, witnesses, and all staff and faculty involved in the process, from disclosure through to appeal. The RIA Working Group is one of three Working Groups with the Courage to Act project. Each Working Group is composed of experts in their respective fields from across Canada. The RIA Working Group’s membership includes Deborah Eerkes and Britney De Costa, with contributions from Zanab Jafry.

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Suggested Citation: Paskaran, Laxana. (2022, November). “Passing the Problem” of Sexual Misconduct: An Unsettled Question on Privacy and Information Sharing. Courage to Act. www.couragetoact.ca/blog/unsettled-questions-2.

Laxana Paskaran (she/her)

Laxana Paskaran, Courage to Act’s Experiential Learning Project Research Assistant, recently completed a Master of Education in Social Justice Education with a collaborative graduate specialization in Ethnic, Immigration and Pluralism Studies at the University of Toronto. She has experience in research, policy analysis, and program management. She has previously led action-oriented human rights and social justice projects at The Leacock Foundation, U of T’s Sexual Violence Prevention and Support Centre, and the Adayaalam Centre for Policy Research.

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