6 Things to know about non-academic misconduct complaints about sexual assault
- Kate Mitchell
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- The Student Code of Conduct prohibits sexual violence against “a member of the University community”. This includes sexual violence against students, staff, faculty, visitors, and volunteers. Sexual violence is defined in the Policy on Sexual Violence Involving Queen’s University Students as
“any sexual act or act targeting a person’s sexuality, gender identity or gender expression, whether the act is physical or psychological in nature, that is committed, threatened or attempted against a person without the person’s Consent, and includes things such as: Sexual Assault; Sexual Harassment; stalking; indecent exposure; voyeurism; and, sexual exploitation.”
- The Policy on Sexual Violence prohibits a broad range of conduct, including actions that may not violate the Criminal Code. The Policy on Sexual Violence prohibits sexual harassment for example, but some types of sexual harassment in the Policy may not amount to breaches of the Criminal Code. The Policy also prohibits sexual assault, which is “any form of sexual contact without Consent” (with no apparent defence of honest but mistaken belief). The Policy sets out a specific definition for Consent:
Consent: means an active, direct, voluntary and conscious choice and agreement to engage in sexual activity. For additional clarity:
(i) a person who is “Incapacitated” due to the consumption of drugs or alcohol or due to some other reason cannot give Consent;
(ii) a person who has been threatened or coerced into engaging in sexual activity is not Consenting to it;
(iii) the fact that Consent was given in the past to a sexual, dating or intimate partner does not mean that Consent can be assumed to be given for any future sexual activity;
(iv) consent may be compromised where individuals are in a position of power, trust or authority over the person whose Consent is required;
(v) consent, once given, is revocable, at any time;
(vi) consent cannot be given on behalf of another person; and
(vii) consent is active and not passive or silent.
- Non-academic misconduct is separate from the criminal process. A complainant may choose to make a non-academic misconduct complaint to the university and/or a criminal complaint to the police. There is no statute of limitations on sexual assault, so a criminal complaint can still be made after a non-academic misconduct complaint has been dealt with.
- Respondents have the right to know the allegations and respond, and they also have the right to get a lawyer. The complaint process is somewhat different for students versus employees, but in both cases a complaint is made, an investigation takes place, and the matter gets referred to a decision-maker. A hearing will be scheduled (if the matter is not informally resolved), and the respondent is given notice of the hearing and disclosure of the evidence gathered during the investigation. The hearing then takes place. The Adjudicator decides whether the complaint is affirmed or denied, and (if affirmed) what the sanction will be. Sanctions range from a reprimand to expulsion.
- Complainants can choose whether they want to participate in the investigation or proceedings. If they choose not to, then it may be harder for the complaint to be proven. If they do give evidence at the hearing, then the respondent has an opportunity to cross-examine the complainant.
- Interim measures might be put in place until the complaint is resolved. These include moving a student from a class or residence, imposing a no-contact directive, or suspending certain privileges.
Sexual assault non-academic misconduct complaints are serious. If the respondent is criminally charged for the same conduct, then evidence given and admissions made by the respondent during the non-academic misconduct process may have impacts at trial. Borys Law has experience with sexual assault non-academic misconduct complaints, so contact us today for more information.