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Simple questions with complicated answers part 1: shouldn’t gbv investigations be left to the police?

A recurring series written by Deb Eerkes of the Reporting, Investigation and Adjudication Working Group, Courage to Act.

Welcome to the first part of our new “Simple Questions with Complicated Answers” series. Each part will take on a common and (seemingly) simple question about gender-based violence (GBV) complaints processes at Post-Secondary Institutions (PSIs). First up:

Q: Sexual violence is a crime – why are PSIs even involved?

A:  This is a common, and absolutely reasonable question!

It is the case that enforcement of the Criminal Code of Canada belongs solely with police forces and courts of law; PSIs are neither equipped nor authorized to lay charges or hear and adjudicate criminal trials. Instead, they work within the framework of administrative law, which allows them to create and enforce policies, including codes of conduct and collective agreements. In the case of sexual violence, it can (but doesn’t always) coincide with criminal matters.

Think of it this way: PSIs write policies that help them achieve their educational mission. In addition to being educational institutions, PSIs are also workplaces, social spaces, and can be residential communities. Gender-based violence (GBV) generates a toxic and unsafe environment that interferes with students’ ability to fully participate in their educational experience, creates unsafe conditions in student residences and campus activities, and produces what has now been recognized as hazardous working conditions. PSIs are required to act on these things in a proportionate and appropriate way to restore the educational, living, and working environment to a safe and harassment- (including GBV-) free place to teach, learn, socialize, live, and work.

The criminal justice system has no interest in these goals. Its job is to determine when an individual has committed a crime and impose punishment. A guilty verdict creates a public criminal record that stays with a person for life and can result in incarceration; consequently, the criminal courts have stringent protections, including a standard of proof beyond a reasonable doubt, inflexible procedures, and strict rules of evidence.

Unfortunately, PSIs themselves suffer from blurring the distinctions between administrative and criminal processes. Many PSIs mimic criminal trials in their hearings. They have imported criminal terminology – victim, offender, charge, offense, trial, verdict, sentence – into administrative policies and discussions. It’s no wonder people are confused.

PSI processes, whether student conduct or employee discipline, are confidential and create no record outside of the institution. As required in administrative law, PSIs use a balance of probabilities standard of proof and have significant flexibility in designing policies and procedures, so long as they are procedurally fair (See Chapter 1 of the Comprehensive Guide to Campus Gender-Based Violence Complaints for an in depth discussion on what procedural fairness looks like in the context of post-secondary education.)

I want to emphasize a point I made earlier: the role of the PSI in addressing GBV is to restore their environment(s) to be conducive to their educational mission, ensure equity and equal access, and meet the workplace safety obligations of the institution. That means both supporting complainants so that they can fully function as community members – or allowing them time away if they need it, without putting them at a disadvantage – and preventing GBV wherever possible. A focus on punishment, which is the natural extension of a criminal orientation, rarely serves either of these purposes. There are some cases in which PSIs are able to meet the needs of survivors and the community by providing education, or creating the space for meaningful apologies. These goals and remedies are outside the purview of criminal courts. Incidentally, this is why a complaint can be lodged with both the police and on campus; they are doing very different things!

The key is to keep the educational mission in view, always. PSIs need to do everything possible to keep their complaints processes separate and distinct from criminal ones. They can start by removing any language imported from the criminal courts into their policies, procedures, and lexicon, and by taking great care not to adopt a criminal model in their complaints processes.  Ultimately, replacing the criminal approach with an equity lens, and providing procedural fairness, trauma-informed practices, and harm-reducing measures, for both parties to a complaint, makes the process more fair and works toward achieving the educational mission.

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: Eerkes, D. (2021, November). Simple Questions with Complicated Answers Part 1: Shouldn’t GBV Investigations be Left to the Police? Courage to Act. www.couragetoact.ca/blog/simple-questions-part-1

Deborah Eerkes

Deb Eerkes (she/her) is the Director of Student Conduct and Accountability at the University of Alberta and a decision-maker under the Code of Student Behaviour, including cases involving sexual violence. She has put into place measures to ensure that all work undertaken in the office is both trauma-informed and procedurally fair.

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