It is to society's credit that many of the beliefs and myths that characterized our attitude towards sexual misconduct are being abandoned. This progress is beneficial not only to the sensitivity with which we approach complainants, but also to the truth-finding process that follows a sexual misconduct investigation.
However, these beneficial developments must supplement, not replace, the value that the process is fair to the accused person, whom I will refer to hereafter as the respondent. After reviewing UBC's proposed sexual assault policy, my colleague and I found some important areas where the policy lacked fairness for the respondent. We drafted submissions for the university and I would like to summarize some of our submissions in this letter.
The first way the policy could be improved is through giving the respondent the right to produce evidence during the investigation.
The policy currently states, “The investigator may carry out the investigation in any manner they deem appropriate in order to obtain the information required to make the necessary findings of fact.” (section 4.4 of procedure). The subsections then go on to say that the investigator may request information from the respondent (section 4.4.2), but this is left to the investigator's discretion.
This means that the respondent does not even have the right to give their own statement of the events. Without a specific directive to receive evidence from the respondent, the investigator could choose not to permit the respondent to present certain types of evidence or any evidence at all — or the investigator may simply not think to inform the respondent of types of evidence that would assist in the investigation process. The result would be unfair for the individual respondent, but it would also harm the overall truth-seeking process of the investigation by omitting potentially relevant evidence.
Because of this, I would recommend including in the policy a right for the respondent to produce evidence as well as a direction to the investigator to inform them of that right and of the types of evidence that may be relevant.
The second way the policy could be improved is through making it mandatory for the investigator to include an assessment of credibility in their final report.
As the policy is currently worded, section 4.3 of the procedure states that the investigative report — the report in which the investigator summarizes their conclusions of what happened — may include an assessment of credibility. The term credibility refers to whether or not a party is being truthful in the evidence they have provided. For greater certainty and fairness to the respondent, including an assessment of credibility with regard to both the complainant and the respondent in the decision should be mandatory, not discretionary.
Allegations of sexual misconduct are often confirmed in whole or in large part by the testimony/statements of witnesses. It should not be discretionary for the investigator to show their rational process behind determining why one version of events was considered more credible than the other. The investigator could assess the credibility of the parties by referring to supporting evidence in the investigation that supports one side of events or by commenting on the demeanour of witnesses if they are personally interviewed.
The final way that UBC could improve its policy is by permitting the respondent to make submissions to the disciplinary authority regarding what the appropriate discipline should be if they are indeed found to have committed sexual misconduct.
As the policy is currently written, the respondent has no right to make submissions regarding what the proper discipline should be if they are found to have committed sexual misconduct. The investigator simply submits their findings to the disciplinary authority and a decision is made without consulting the respondent.
This omission makes it far less likely that the discipline applied will be fair and appropriate to the circumstances. As the policy is currently written, the disciplinary authority would only have the investigative report to assist in making their decision, which would only include the facts of the offence.
Determining an appropriate disciplinary measure requires more than the facts of the misconduct. Other factors such as the background of the respondent — both socio-economic and their disciplinary history — the remorse the respondent feels for their conduct and the steps taken by the respondent to make amends for their actions should play an important role in determining the disciplinary measures.
For example, a respondent who committed sexual misconduct while intoxicated may have immediately begun counselling for alcohol abuse after recognizing the harm they caused. Such factors would inform the disciplinary authority of whether this person is still a risk to the UBC community. This would then help determine what the primary goal of the discipline should be — deterrence, punishment, re-integration into the community, etc. Identifying these goals would be exceedingly difficult under the policy as it is currently written because the authority would have no knowledge of the context surrounding the misconduct and the respondent.
The solution would be to provide a copy of the investigative report to the respondent upon completion. The respondent should then have a period of time to prepare a statement for the appropriate disciplinary authority regarding what the punishment should be.
In conclusion, I am very pleased to see that UBC is protecting students by moving forward in creating this responsible sexual assault policy. I believe that my aforementioned suggestions would both increase the efficacy of truth-finding in UBC's sexual misconduct investigations and minimize wrongful discipline by ensuring that all parties are informed of the process and given an opportunity to participate in finding the truth.
Jordan Schroeder is a second-year student at the Peter A. Allard School of Law.