The provincial government has introduced legislation to address sexual misconduct on university campuses. The bill requires post-secondary institutions to develop policies that draw attention to sexual violence and take measures to prevent it.
The statute is a modified version of legislation tabled by B.C. Green Party Leader Andrew Weaver, the Oak Bay-Gordon Head MLA. Weaver was motivated, in part, by allegations that four female students had been sexually assaulted at the University of Victoria.
The legislation is at once an important step forward and, in its present form, a bridge too far.
It is important that campus authorities establish codes of conduct that draw a clear line between acceptable and unacceptable behaviour. And those codes must be reinforced by constant reminders that inappropriate acts will not be tolerated.
These requirements are embodied in the statute, and to that extent, this is a long-overdue initiative.
But while its wording is vague, the bill appears to go further, and here difficulties emerge. Postsecondary institutions are being instructed not only to publish codes of sexual conduct, but in certain circumstances, perhaps, to police them.
This need not be problematic with regard to some forms of misconduct. Sexual harassment, for example, can reasonably be investigated by campus authorities and action taken.
But the statute appears to suggest that sexual assault, stalking, indecent exposure and voyeurism might also, in some circumstances, be dealt with internally. This would be, at a minimum, unwise, and in a worst-case scenario, improper.
All of these behaviours are criminal offences. The correct response is to bring in law-enforcement agencies that are trained to deal with such matters.
That is what happened in the case of the sexual-assault allegations at the University of Victoria. After an investigation by the police, in which the alleged offender was arrested and questioned, the charges were withdrawn. Several senior prosecutors concluded that a conviction could not be obtained.
Nevertheless, the provincial Ministry of Advanced Education, which is sponsoring the legislation, remains concerned that in some cases, involving the police might not be the right approach. A spokesperson noted that some complainants might prefer to have the matter dealt with by campus authorities. And that might be true.
But if the alleged misconduct involves sexual assault or indecent exposure, for example, these are extremely serious charges. In no circumstances should such allegations be dealt with by university staff who might be untrained in due process and other procedural necessities.
The ministry responded to this concern by noting that universities already have the power to investigate and expel students for a variety of misbehaviours, such as plagiarism. But plagiarism is an academic offence, and universities are well-placed to deal with misconduct of this sort. Criminal charges are another matter entirely.
There is also the question of legal jeopardy. If a student is investigated on campus for sexual misconduct and expelled, that individual has recourse to the courts.
If it were found, in such an event, that the university had erred and the student was innocent, hefty financial damages would certainly be awarded.
The legislation is still only a framework. The ministry intends to fill out the specifics through regulations yet to be drafted.
These regulations must communicate, in no uncertain terms, that sexual misconduct will not be permitted. But they must also preserve the assurance of due process and the right to trial before a court of law, in circumstances where criminal misconduct is alleged.
Students are entitled to a university environment that is free of sexual violence. They are also entitled to an environment that safeguards their basic rights.
Some redrafting is needed to ensure that both of these goals are met.
