After a process that spanned two years, today the Board of Governors officially approved Policy 131, UBC’s new “Sexual Assault and Other Sexual Misconduct” policy. This policy marks important steps forward for the way that UBC handles these sensitive cases.
We’ve broken down the most important aspects of this policy — a brief history of its creation, how consultation was incorporated throughout its lengthy creation and an unpacking of its contents, section by section.
This is by no means an exhaustive review, and the full document as well as previous drafts of the policy can be found online.
Spurred by history
After a string of highly publicized sexual assaults and a human rights complaint, UBC came under intense scrutiny for the way in which it handled such cases. In November of 2015, CBC’s Fifth Estate released an in-depth investigation into the way the administration addressed multiple instances of sexual misconduct by the same PhD student, Dmitry Mordvinov.
Students and the public complained that the way cases were addressed was confusing, and that processing times were lengthy. Glynnis Kirchmeier, a UBC alumnus who filed a human rights complaint against the university for its handling of sexual assault, referenced “22 months of speaking to 10 employees from four offices within the university” in a 2015 interview.
According to a Board of Governors document reported on by The Ubyssey in 2015, over a year and a half UBC received 273 files with only six being referred for formal investigation under Policy 3, UBC’s general discrimination policy.
UBC then launched a comprehensive, independent review, the results of which came out in 2016, which found unnecessary delays and unclear policies on reporting sexual assaults within UBC’s policy structure. The report’s findings were less about the mishandling of the cases and more about how UBC’s policies didn’t work effectively together.
UBC’s president at the time, Martha Piper, pledged that the university would “begin a discussion” on a separate policy to deal with instances of sexual assault. Soon after, the province mandated that all BC post-secondary institutions have a stand-alone sexual assault policy in place with the passage of Bill 23 on May 19, 2016, which will come into effect next month.
The community voice: consultation leads to extreme changes between drafts
On June 14, 2016, the first draft of the sexual assault policy was brought in front of the Board of Governors, after which it was released to the public for a lengthy consultation period that lasted through the summer and fall. Over 160 responses were received by email, through a confidential website set up by UBC Equity & Inclusion, and at consultation sessions.
The AMS and the GSS were heavily involved in the process, gathering feedback independently from their respective communities. In September of 2016, the AMS introduced new coffee cup sleeves to Uppercase, which acted as “only the first step” of a campaign to push changes to the policy draft that included extensive marketing and consultation.
Many in the UBC community were largely dissatisfied with the first draft, partially due to the fact that the policy was given to the Board before the government introduced Bill 23. Since that bill mandated some key aspects and definitions to be within the policy, UBC’s original draft lacked some of those necessary materials.
Consultation was extended an extra month, and in December it was announced that the final release of the policy would be postponed to allow for a second round of public consultation on the second draft to allow for feedback on the “significant changes” between versions.
In late October of 2016, a steering committee on sexual assault was created, whose aim it was to “converge” the community’s consultation into the policy draft.
The process hit a bump when the sole Indigenous member on the committee, Daniel Justice, the chair of the First Nations Studies program, resigned in mid-January. His resignation was a direct result of John Furlong’s re-invitation to speak at UBC’s annual breakfast for athletes after allegations against him for the abuse of Indigenous children during his time teaching resurfaced.
The second draft of the policy was released in a Board of Governors meeting on February 14, and underwent another round of community consultation that lasted a month and resulted in 44 feedback submissions.
According to the Board document on the policy, there were “two significant changes” from the first draft to the second: the approval of the creation and staffing of a Sexual Violence Prevention and Response Office on the UBC Vancouver and UBC Okanagan campuses, and the creation of a Director of Investigations role on each campus. This approval did not automatically create this Office and this role — both are works in progress (see section 2 for explanations of these).
As noted by the Board document, no significant changes were made to the procedures section of the policy from the first to the second draft.
A lot of the feedback was slotted for future release: according to the Board document, a “significant portion of [the consultation] was requests for further information and details that would be appropriate for inclusion in additional supporting materials but not for inclusion in the policy itself.”
According to Sara-Jane Finlay, UBC VP Equity and Inclusion and one of two heads of the steering committee, those supporting materials are still being worked on and will be released soon.
“That’s where the expertise [of the new Sexual Violence Prevention and Response Office] will be absolutely essential. So rather than us doing it and not getting it exactly right, we want to wait so we can have the experts in to help us,” she said.
Breaking it down: the new policy
The policy begins with its principles and commitments section: “UBC will not tolerate sexual assault or any other sexual misconduct.” The rest of the section details UBC’s commitment to what they outline as a very diverse community.
“I see [this section] as the key accountability measures [on sexual assault],” said Finlay. “This is what we aspire to. This is the standard that we are laying out for ourselves as what we are going to do and how we are going to do it.”
Section 1.3 commits UBC to “providing comprehensive and inclusive Sexual Misconduct education,” as well as “support services” — initiatives that Finlay sees as being realized through the creation of the new Sexual Violence Prevention and Response Office.
The university also outlined its commitment to respect the rights of those who disclose sexual misconduct to make their own decisions, including whether or not to pursue external action.
In its actions as an institution and not a law-enforcement agency, UBC’s investigative process is governed by administrative law. Whereas the actions that survivors choose to pursue with UBC and the criminal or civil processes may influence each other, they are wholly separate, and survivors can choose to pursue either avenue or both.
As noted in section 4.5, in the case of external investigation UBC may choose to suspend its own process — only after consultation with the complainant — to prevent the university from impeding on a criminal investigation (which could have far more serious results that UBC could not implement, such as jail time).
In this section, UBC also talks about the commitment to a “trauma-centred approach.”
“Having an understanding of that, of the impacts of a trauma from a sexual misconduct is on the survivor, is really important to understanding how a survivor can talk about what happened to them,” said Finlay.
She noted that the university wants to recognize the varied and understandable ways that a survivor might respond to trauma, and incorporate that into the system.
This section mandates the creation of the Sexual Violence Prevention and Response Office, meant to act as “a single point of contact and liaison” for members of the UBC community. The office will receive disclosures, receive or assist with reports and provide information and referrals.
Many of the complaints regarding UBC’s previous dealings with sexual misconduct survivors centred around the university’s lack of an organized system, so this office hopes to function as an umbrella under which all programs will be organized.
This is the first time that UBC will have a distinct and separate investigative process for sexual misconduct. Previously, Policy 3 dealt with “sexual harassment” — that section will remain in Policy 3, but will only govern incidences that fall under “harassment” (discrimination based on gender) and not “misconduct.”
“[These definitions] were covered under this umbrella term in Policy 3, but Policy 131 really gives far more details and far more information about what sexual misconduct might look like,” says Finlay, describing the broader term from the new policy which explicitly includes sexual assault, stalking and indecent exposure.
The full definition of how UBC will define sexual misconduct under Policy 131 can be found in section 8.1.
The section concludes with a note on annually reporting the statistics of disclosures and investigations, the names of which will be numerically based in order to protect the confidentiality of those involved, according to Finlay. The only time that confidentiality would be broken is if there is a “risk of a significant harm to anyone’s health or safety.”
Sections 3 and 4
Section three concerns disclosures, and opens by stating that “the decision to disclose and the decision to report are separate decisions.” As defined by the policy, disclosing means telling a member of the Sexual Violence Prevention and Response Office about an incident, for example to seek support services.
Reporting means filing an official report with the Office, which then initiates an investigation (neither of which are spurred by simply disclosing). Anyone can make a report against a member of the UBC community.
The Office will aim to help survivors with a variety of accommodations and support services based on their situation, regardless of whether or not an investigation has concluded or whether the survivor has chosen to file an official report.
“Disclosing is really about getting support, it’s not about entering into some university process,” said Finlay. “That’s the choice the survivor gets to make.”
When a report is made, it will be submitted to the “director of investigations.” The structure of the investigative side of the Office has this director as the head of operations, with externally contracted “investigators” working on cases that are approved by the director. At least at the onset of this policy’s implementation, according to Finlay, keeping investigators at “arm’s length” from the university will be key.
Before moving forward with a case, the director of investigations will determine whether there is a “jurisdiction to investigate.” This is a key definition of Policy 131, and one that is not outlined in detail. It is defined under section 8.6 as “the legal authority to investigate,” with a few clauses in place, including that the “alleged conduct must have a real and substantial connection to UBC.”
Finlay notes that a clarification of this jurisdiction, and what a “real and substantial connection” would look like, will be outlined in a supporting document to be released soon — jurisdiction is a rather overarching concept that can include the parties involved, location, time, and other situational factors. Many respondents to consultation requested nuanced clarification on this point.
The director of investigations will also decide whether the case will fall under the jurisdiction of Policy 3 or Policy 131 — most likely Policy 131, since it encompasses all sexual misconduct, whereas Policy 3 just deals with harassment based on gender.
Students that wish to disclose or report can expect to deal closely with only a single person in the Office, which is key to UBC’s trauma-centred approach. That person would receive the individual coming into the Office for any guidance, support or assistance that the individual needs, and would coordinate with the investigator should one be assigned to the report.
Sections 5, 6 and 7
Individuals can make disclosures anonymously or on behalf of another person. However, reports cannot be filed anonymously in order to preserve UBC’s commitment to due process and fair procedure, since part of that procedure includes the right of the person that has been accused to know both the name of the person and what the nature of the report is.
Section six mandates that in the case of a real or apparent conflict of interest of an investigator, the individual will not continue with the case.
Bill 23 mandates the post-secondary institutions to review their policies every three years. Section seven commits UBC to reviewing Policy 131 at least once every three years, “in consultation with students and other members of the UBC community.”
According to Finlay, it’s important to UBC to have the policy under near-constant scrutiny, especially in its early years.
“We are aware that this is an area where there’s all new kinds of conversation and development in the way in which people are dealing with sexual assault, and so we want to make sure that our policy is staying consistent with the current and best practices,” said Finlay.
This section outlines many key definitions, including the exact parameters of “sexual misconduct,” “consent” and “members of the UBC community” as they pertain to the policy, among others.
Moving forward: the implementation of Policy 131
Under Bill 23, UBC needs to have this policy in effect by May 19.
While this marks a significant step forward in the way that the university will deal with sexual misconduct on campus, the Board noted that this policy is a work in progress that goes beyond review once every three years.
While any disclosure or report made after the implementation date will be dealt with under the new policy, the Sexual Violence Prevention and Response Office is still hiring, and its physical location is still to come.