Two years ago, Ontario’s Liberal government unleashed a nightmare on Ontario’s colleges and universities. Bill 132 was meant to tighten the regulations around sexual violence and harassment in the workplace. It also required colleges and universities to draft new sexual-violence policies that oblige them to sit in judgment on complaints that arise from their students’ intimate lives.
The result is something of a dog’s breakfast, as Globe and Mail reporter Simona Chiose discovered. Last Friday she recounted the case of a 19-year-old student at the University of Guelph, who complained to the university after a date with another student turned into (by her account) non-consensual sex. A three-person investigation panel found that the male student was guilty of assault. The male student was placed on “non-academic probation,” and told to take a course on consent.
The complainant had hoped for more – much more. She says she expected her alleged assailant to be suspended or expelled. She complains that the university won’t even tell her if he actually took the course.
Several provinces now have legislation similar to Bill 132. It is extremely popular with advocacy groups and student activists, who believe that such measures will address an atmosphere of so-called “rape culture” on campus. They hope that it will offer swifter, better justice than is available through the courts. The federal government also takes these new laws seriously, and warns that institutions that don’t comply could face financial penalties.
But the case at Guelph illustrates many of the problems that arise when universities are forced to become quasi-judicial bodies in areas where they have no expertise. Few, if any, of the people who decide these cases have legal or investigative training. (At Guelph, they consisted of a student, a faculty member, the university’s human-rights adviser and a senior administrator with a background in economics.) Yet, these people are supposed to figure out what happened in private between two people, what degree of blame to lay and what penalties to assess – up to and including expulsion. Even the boundaries of their jurisdiction are unclear. The female student in the Guelph case wasn’t even attending Guelph at the time of the alleged assault. She was still finishing high school. She complained after she started university and was bothered by seeing her alleged assailant on campus.
Critics of campus quasi-judicial hearings cite plenty of other problems with this model. They point out that what qualifies as an “offence” does not have to rise to the level of a crime before the law. An offence can be just about anything the adjudicators decide. Standards of proof are also much lower than the legal standard of “beyond a reasonable doubt.” Instead, the standard is “a balance of probabilities,” which means anything above 50 per cent is good enough. Then there are the rights of the accused. How should they be protected? Should the accused be allowed to face his accuser? Does the accuser have the right to know what punishment he receives? Is there an appeal process? And what happens when the rights of the complainant and the accused conflict?
Not surprisingly, activists complain that the new policies are inconsistently applied, and don’t go nearly far enough. But for universities, there’s a price for going too far as well. Universities across the United States have been hit by a rash of lawsuits from wrongly accused men, and some of their decisions have been overturned.
Our zeal to police campus sex crimes can be traced back to Barack Obama’s Title IX policy, established in the United States in 2011. We’re just following suit. That policy requires all universities that receive federal funding to adjudicate sexual-assault allegations made by students, on pain of losing their subsidies. The result has been the creation of large Title IX bureaucracies – along with a great deal of appalling overreach. Some of the excesses of Title IX are now being rolled back, though Canadian governments don’t seem to have noticed.
The irony of this rash of new legislation is that it’s purely political. It’s aimed at a crisis that doesn’t exist. Statistics show that sexual-assault rates for students on campus are lower than for non-students.
Felonious sexual assaults – wherever they occur – must be addressed with the full force of the law, as well as due care and consideration of the victims. But the proper place to do that is in the criminal-justice system, not on campus. Let the police and courts and judges do their job, and let universities do theirs.