4000-3-9 Sexual Assault & Sexual Violence Policy & Protocol

Policy

1. Sexual violence is unacceptable and will not be tolerated. Lambton College is committed to confronting and preventing sexual violence and creating a safe space for anyone in our college community who has been affected by sexual violence. The College is committed to providing a safe and positive space where members of the college community feel able to work, learn and express themselves in an environment free from sexual violence.
2. All reported incidents of sexual violence will be investigated to the best of the administration’s ability and in a manner that ensures due process. One purpose of this policy is to make individuals feel comfortable about making a report in good faith about sexual violence that they have experienced or witnessed.
3. It is recognized that sexual violence can occur between individuals regardless of sexual orientation, gender, gender identity or relationship status as articulated in the Ontario Human Rights Code. It is also recognized that individuals who have experienced sexual violence may experience emotional, academic or other difficulties.
4. The College is committed to:
   1. assisting those who have been affected by sexual violence by providing choices, with detailed information and support, such as provision of and/or referral to counselling and medical care, information about legal options, and appropriate academic and other accommodation;
   2. ensuring that those who disclose that they have experienced sexual violence are believed, and that their right to dignity and respect is protected throughout the process of disclosure, investigation and institutional response;
   3. eliminating harmful attitudes and behaviours that reinforce that the person who experienced sexual violence is to blame for what happened; this includes protecting the complainant from irrelevant questions such as those relating to past sexual history or sexual expression;
   4. treating with compassion individuals who disclose sexual violence, recognizing that they are the final decision-makers about their own best interests;
   5. ensuring that on-campus (internal) investigation procedures are available for cases of sexual violence, even when the individual chooses not to make a report to the police;
   6. engaging in appropriate procedures for investigation and adjudication of a complaint that are in accordance with College policies, standards and applicable collective agreements, and ensure fairness and due process;
   7. ensuring coordination and communication among the various departments who are most likely to be involved in the response to sexual violence on campus;
   8. engaging in public education and prevention activities;
   9. providing information to the college community about our sexual violence policy and protocol;
   10. providing appropriate education and training to the college community about responding to the disclosure of sexual violence;
   11. contributing to the creation of a campus atmosphere in which sexual violence is not tolerated;
   12. monitoring and updating our policy and protocol to ensure that they remain effective and in line with other existing policies and best practices.

Reporting and Responding to Sexual Violence

1. Members of the college community should immediately report sexual violence incidents they witness or have knowledge of, or where they have reason to believe that sexual violence has occurred or may occur. Members who have experienced sexual violence are encouraged to come forward to report as soon as they are able to do so.
2. Persons in a position of authority, including persons directing the activities of others, shall take immediate action to respond to or to prevent sexual violence.
3. Where the College becomes aware of an incident of sexual violence by a member of the college community or against a member of the college community, that occurs on or off College property, and that poses a risk to the safety of members of the college community, the College shall take all reasonable steps to ensure the safety of the college community.

Complaint Process and Investigations

1. A complaint of any kind of sexual violence can be filed under this Policy by any member of the college community and any other individual to whom this policy applies.
2. Procedural Fairness: Except as otherwise stated in this Protocol, the College provides those whose rights, privileges, or interests may be affected by a decision with notice of the decision to be made, disclosure of facts relevant to the decision and an opportunity to be heard. The College may decide how it meets these obligations in different circumstances and will do so with a view of providing a fair process, making a sound decision, and preserving the dignity of survivors. The College has the right to withhold disclosure early on in its process to obtain a person's independent recollection of events.
3. Support and Representation: Complainants and respondents may attend meetings with a single (non-participating) support person. The College considers requests to attend meetings with additional support persons and with legal or other representation on a case-by-case basis, with a view to promoting a fair and expeditious process. The College may still question and expect direct answers from an individual who is represented.
4. If an individual(s) files a complaint or report on sexual violence and in the process of supplying information reveals a breach of College policy (e.g. Student Discipline policy), no action will be taken by the College respecting those breaches. For example, the inappropriate use of alcohol or drugs, or having unauthorized guests within a residence room. Additionally, reporting an incident of sexual violence will not impact the Study Permit status for an international student.
5. Notwithstanding, the College reserves the right, in exceptional circumstances, such as  especially egregious breaches of policy (e.g. physical violence) or breaches that have caused the College to initiate policy-breach actions prior to the receipt of the complaint or report, to address the reported breaches of policy.
6. The College reserves the right in all cases and notwithstanding the immediately following statement, on the basis of information and comment provided to it, to undertake and institute interim measures to ensure the safety of the College community or any members of it, or to meet the demonstrated needs of the complainant, for the duration of the investigation when, in its judgment, there is a need to do so.  For example, a respondent may be moved from a complainant's residence, restricted from entering certain parts of campus and/or restricted from attending class. The College will also take steps to minimize the impact of interim measures on respondents. While interim measures are not, nor intended to be, disciplinary, non-compliance may be considered a violation of the student code of conduct. The College may impose interim measures immediately, without a hearing. Respondents may ask the College to review a decision to impose interim measures, but only to address the impact of the imposed measure and the preference for other alternatives. 

Right to Withdraw a Complaint

1. A complainant has the right to withdraw a complaint at any stage of the process. However, the College may continue to act on the issue identified in the complaint in order to comply with its obligation under this policy or its legal obligations.

Protection from Reprisals, Retaliation or Threats

1. It is contrary to this Policy for anyone to retaliate, engage in reprisals, or threaten to retaliate against a complainant or other individual for:
   1. having pursued rights under this Policy or the Ontario Human Rights Code;
   2. having participated or co-operated in an investigation under this Policy or the Ontario Human Rights Code; or
   3. having been associated with someone who has pursued rights under this Policy or the Ontario Human Rights Code.

The College takes reasonable steps to protect persons from reprisals, retaliation or threats. This may entail, for example, advising individuals in writing of their duty to refrain from committing a reprisal and sanctioning individuals for a breach of this duty. The College may also address the potential for reprisals by providing an accommodation appropriate in the circumstances.

Unsubstantiated or Vexatious Complaints

1. If a person discloses or files a sexual violence complaint that is not supported by evidence gathered during an investigation, the complaint will be dismissed.
2. A disclosure or complaint that is found, following investigation, to be frivolous, vexatious or in bad faith or made purposely to annoy, embarrass, or harm the respondent, may result in sanctions or discipline against the complainant.

Confidentiality

1. Confidentiality is particularly important to those individuals who have disclosed sexual violence. The confidentiality of all persons involved in a report of sexual violence must be strictly observed, and the College will exercise care to protect and respect the confidentiality of all persons, including the complainant, respondent and witnesses by restricting routine access to information to individuals with a need for such access and by providing education and training to those who are regularly involved in the administration of reports and complaints. 
2. Notwithstanding the above statement, confidentiality cannot be assured if an individual is at imminent risk of self-harm; an individual is at imminent risk of harming another; or there are reasonable grounds to believe that others in the College or wider community may be at risk of harm.
3. In such circumstances as described above, the information will only be shared with the services or authorities necessary to prevent harm, including the College Threat Assessment Team. The name of the assaulted individual will not be released to the public by the College.
4. Where the College becomes aware of an allegation of sexual violence by a member of the college community against another member of the college community, the College may have an obligation to take steps to ensure that the matter is dealt with in order to comply with legal obligations or its policies to investigate such allegations. In such cases, certain College administrators may be informed about the reported incident on a “need-to-know” and confidential basis, but without necessarily disclosing the identities of the persons involved.
5. Information about the number of times supports, services, and accommodations relating to sexual violence are requested and obtained by students will be provided to the Ministry and the Lambton College Board of Governors in accordance with government regulations. There will be no identifying information included in these reports. The College will use this data in order to develop proactive sexual violence prevention measures.
   

Sexual Misconduct by Employees toward Students

1. As defined within Bill 26, Strengthening Post-Secondary Institutions and Students Act, Sexual Misconduct means, in relation to a student of an institution:
   1. Physical sexual relations with the student, touching of a sexual nature of the student or behaviour or remarks of a sexual nature toward the student by an employee of the institution where,
      1. The act constitutes an offense under the Criminal Code (Canada)
      2. The act infringes the right of the student under the Humans Rights Code to be free from a sexual solicitation or advance, or
      3. The act constitutes sexual misconduct as defined within this policy
   2. Any conduct by an employee of the institution that infringes the right of the student under the Human Rights Code to be free from a reprisal or threat of reprisal for the rejection of a sexual solicitation or advance.
2. Sexual Misconduct as defined above is grounds for discharge or discipline, examples of which are included within the Employee Discipline (3000-2-3) policy. The employee is not entitled to notice of termination or any compensation or restitution as a result of the discharge or disciplinary measure.
3. If an employee commits an act of sexual misconduct as defined above and the employee is discharged for that act, or the employee resigns from their employment, Lambton College will not subsequently re-employee the individual.
4. An agreement between Lambton College and any person entered into after the date in which the Act comes into force, will not contain any term that prohibits Lambton College or any person related to Lambton College from disclosing that an allegation or complaint of sexual misconduct has been made toward a student.
5. Notwithstanding the above statement, the College may enter into an agreement described above at the complainant’s request, provided that:
   1. The complainant had reasonable opportunity to receive independent legal advice
   2. There have been no undue attempts to influence the complainant with respect to the request
   3. The agreement includes an opportunity for the student to decide to waive their own confidentiality in the future and the process for doing so; and
   4. The agreement is of a set and limited duration.

Definitions

Sexual assault

Sexual assault is a criminal offense under the Criminal Code of Canada and is any type of unwanted sexual act done by one person to another that violates the sexual integrity of the victim and involves a range of behaviours from any unwanted touching to penetration. Sexual assault is characterized by a broad range of behaviours that involve the use of force, threats, or control towards a person, which make that person feel uncomfortable, distressed, frightened, or threatened, or that are carried out in circumstances in which the person has not freely agreed or consented, or is incapable of consenting.

Sexual violence

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 sexual assault, sexual harassment, stalking, indecent exposure, voyeurism and sexual exploitation.

Consent

The voluntary and explicit agreement to engage in the sexual activity in question. It is the act of willingly agreeing to engage in specific sexual activity, and requires that a person be able to freely choose between two options: yes or no. For consent, there must be an understandable exchange of affirmative words that indicates a willingness to participate in mutually agreed upon sexual activity. Further:

• Silence or non-communication must never be interpreted as consent and a person in a state of diminished judgment cannot consent.
• A person does not give consent if they are incapable of understanding the risks and consequences of a sexual act or the ability to understand that they can refuse, by virtue of, for example, intoxication, being drugged, being asleep or being unconscious.
• A person may be unable to give consent if they have a mental disability preventing them from fully understanding the sexual activity.
• A person is incapable of giving consent to a person in a position of trust, power or authority over him/her, such as, a faculty member in a relationship with a student whom they teach, an administrator in a relationship with an individual who reports to him/her.
• A person who has been threatened or coerced (i.e. is not agreeing voluntarily) to engage in the sexual activity is not consenting to it.
• The fact that consent was given in the past to a sexual activity or dating relationship does not mean that consent is deemed to exist for all future sexual activity.
• A person can withdraw consent at any time during the course of a sexual activity.
• Consent cannot be given on behalf of another person.

It is the responsibility of the initiator of sexual activity to ensure clear and affirmative responses are communicated at all stages of sexual activity.

It is also the responsibility of each party to know if the person they are engaging with sexually is a minor.

The Criminal Code defines “consent” as follows:

Consent: The voluntary agreement to engage in the sexual activity in question. No consent is obtained, where:

• the agreement is expressed by the words or conduct of a person other than the complainant;
• the complainant is incapable of consenting to the activity;
• the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
• the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
• the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

Other Relevant Terms

Acquaintance sexual assault

Sexual contact that is forced, manipulated, or coerced by a partner, friend or acquaintance.

Age of consent for sexual activity

The age of consent is the age at which a person can legally consent to sexual activity. In Canada, children under 12 can never legally consent to sexual acts. Sixteen is the legal age of consent for sexual acts. There are variations on the age of consent for adolescents who are close in age between the ages of 12 and 16. Twelve and 13 year-olds can consent to have sex with other youth who are less than two years older than themselves. Youth who are 14 and 15 years old may consent to sexual involvement that is mutual with a person who is less than 5 years older. Youths 16 and 17 years old may legally consent to sexual acts with someone who is not in a position of trust or authority.

Coercion

In the context of sexual violence, coercion is unreasonable and persistent pressure for sexual activity. Coercion is the use of emotional manipulation, blackmail, threats to family or friends, or the promise of rewards or special treatment, to persuade someone to do something they do not wish to do, such as being sexual or performing particular sexual acts.

Drug-facilitated sexual assault

The use of alcohol and/or drugs (prescription or non-prescription) by a perpetrator to control, overpower or subdue a victim for purposes of sexual assault.

Stalking

A form of criminal harassment prohibited by the Criminal Code of Canada. It involves behaviours that occur on more than one occasion and which collectively instill fear in the victim or threaten the victim/target’s safety or mental health. Stalking can also include threats of harm to the target’s friends and/or family. These behaviours include, but are not limited to non-consensual communications (face-to-face, phone, email, social media); threatening or obscene gestures; surveillance; sending unsolicited gifts; “creeping” via social media/cyber-stalking; and uttering threats.

Survivor

Some who have experienced sexual violence may choose to identify as a survivor. Individuals might be more familiar with the term "victim". We use the term "survivor" throughout this policy where relevant because some who have experienced sexual assault believe they have overcome the violent experience and do not wish to identify with the victimization. It is the prerogative of the person who has experienced these circumstances to determine how they wish to identify.

Disclosure

When someone affected by sexual violence tells a member of the College community about an incident of sexual assault or violence that has occurred on or off campus.

Report

When someone affected by sexual violence, a witness, or a community member that has received a disclosure, reports the incident according to their college's reporting procedures.

Formal Complaint

When a survivor of sexual violence requests a formal investigation to resolve a complaint of sexual violence.

References to Other Policies or Legal Requirements

• Student Rights & Responsibilities & Discipline (2000-5-1)
• Assessing, Addressing & Serving the High-Risk Student (2000-5-2)
• Employee Discipline (3000-2-3)
• Assessing & Addressing Violence (4000-3-4)
• Respectful College Community (4000-5-3)
• Confidentiality & Privacy of Information & Records (2000-7-1)