The University of Windsor failed to properly resolve a student’s sexual assault complaint through a process she says left her feeling powerless and scared, an Ontario court has ruled.
A university adjudicator unlawfully delegated her appeal to a criminal court instead of issuing a decision under its own campus policies, a divisional court panel of judges said in a decision released in April.
The court set aside the university’s decision, telling the school to revisit the student’s complaint against a male student, using a different adjudicator. Since the court’s ruling, the school has agreed to re-adjudicate the case.
The student, who is protected by a publication ban, spoke exclusively to CBC Windsor, saying she’s relieved by the panel’s decision. However, she calls her experience with the university “terrifying.”
“I felt like my dignity was already stolen and whatever power I had left in me they took that away from me as well,” says the student, who is referred to as Jane Doe.
The panel of judges also raised concerns with the lead investigator’s focus on how she “would expect a sexual assault complainant to act” during the assault. The investigator failed to include in her report the student’s position that she “did not consent and had expressed her lack of consent at several points verbally or by her actions.”
How the complaint process unfolded
According to the court, Doe first filed a complaint with the university on Jan. 13, 2020, saying another student had “penetrated her without consent” in the fall of 2019.
The university’s associate vice-president of student experience (AVPSE) was tasked with investigating, and six months later, according to the court, “concluded, on a balance of probabilities, that the respondent did not sexually assault Ms. Doe.”
Doe appealed, saying the AVPSE made a “serious procedural error” in a decision that was “clearly unreasonable or unsupportable on the evidence,” the judges said.
The matter was passed on to an adjudicator at the school who said the initial investigation “veered into the dangerous territory of assessing how an ordinary victim might react or how a complainant ought to have reacted.”
The AVPSE, in its initial decision, relied heavily on that investigation’s findings. Still, the adjudicator, who was not named in the decision, took no action and said the University of Windsor would wait for the outcome of a criminal trial.
Failing a criminal conviction, the appeal would be dismissed, the adjudicator said.
In their decision, the divisional court judges called this abdication of decision-making both unreasonable and unlawful.
‘Error after error’: student’s lawyer
“I think what we saw here was the university shirking its responsibility under the law to properly address and adjudicate this allegation of sexual assault. Instead what they tried to do was foist this decision on to criminal court, which was completely improper,” said Doe’s lawyer, Gregory Ko, a partner at the Toronto firm Kastner Lam.
“You have error after error that has resulted in an incredibly lengthy and painful process for Jane Doe that’s lasted now 16 months,” said Ko.
In agreeing to re-adjudicate the student’s complaint, the University of Windsor is also reviewing its sexual misconduct policies and procedures.
“This includes the incorporation of enhanced training for internal and external investigators as it relates to the university’s Policy on Sexual Misconduct,” the school said in a statement.
Experts in sex assault prevention, policy weigh in
Experts in sexual assault prevention and policy agree more training is needed to deal with campus complaints.
Barb MacQuarrie led a team of researchers at London’s Western University who developed a program for people dealing with sexual assault cases at Ontario campuses.
She said what Doe went through is “completely unfair.”
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“That is dragging a survivor through a legal process that she shouldn’t have to go through. No survivor of any gender should ever have to go through that kind of extreme effort just to have procedural justice.”
MacQuarrie worries about the ripple effect of Doe’s experience.
“There’s no doubt that these kinds of experiences deter other people from coming forward. Survivors will be paying attention to this whole process.”
She said while the University of Windsor is considered a leader for its work on sexual assault prevention on campus, this decision shows systemic issues still need to be addressed.
Dusty Johnstone, the sexual misconduct response and prevention officer at the University of Windsor, said she was not involved in the investigation or decisions made in relation to Doe’s complaint.
However, she said: “I think that it’s an opportunity for us to look carefully at the procedures and how we, I think, fail to meet the standard that we have outlined in our documents, and to really try to align our policy and our procedures as we move forward.”
Johnstone stressed that sexual assault complaints needed to be handled in a timely manner, something the court makes clear in its decision.
Complaint process ‘oppressive,’ says Doe
Doe said she wants her voice and the voices of others to be heard when universities make policy decisions involving sexual misconduct and the complaint process.
She said it was difficult to come forward because of fears she wouldn’t be believed.
“This process requires a lot of courage and trust. I expect the university to handle these cases seriously and be able to eliminate second victimization. The process that the university has, it’s basically oppressive to these individuals. It oppresses them instead of empowering them.”
A criminal case is expected to begin this summer.
The male student accused in the sexual assault did not enter any evidence during the process.
His lawyer did not respond to a request for comment.