Proposed revisions to UBC’s sexual misconduct policy are now up for student consultation

UBC Policy SC17 — formerly known as Policy 131, UBC’s standalone sexual misconduct policy — is currently in its one and only phase of consultation for amendments proposed in its first review cycle.

Created in 2017, SC17 is mandated by BC Bill 23: Sexual Violence and Misconduct Policy Act to undergo a review every three years. The review committee met for the first time in September 2019 and has since proposed several amendments to the existing policy.

The amendments are open for feedback until January 31. Submissions made during this period will be reviewed in February and confirmed by the Board of Governors (BoG) in June.

“I would be very surprised if this is perfect,” said Jeanie Malone, Vancouver BoG student representative and chair of the BoG’s People, Community and International (PCI) Committee. “I don’t think we’re going to get there in a first draft and that’s why we have this consultation period.”

According to AMS VP Academic and University Affairs Julia Burnham, the consultation period this January has seen “fantastic” engagement with members of the UBC community.

Burham, who occupies the only student-elected representative seat on the review committee, said that the consultation period’s overlap with Sexual Assault Awareness Month (SAAM) has allowed them to capitalize on the increased awareness and conversation on campus.

But while she was impressed at the amount of conversation and community engagement it elicited, Burnham was one of several others to point out outstanding issues with SC17, as well as concerns about the proposed amendments to the policy.

Language and legibility

In addition to new clauses introduced into the policy, the proposed amendments also include slight changes to wording and language.

Dr. Jonathan Ichikawa, a UBC associate professor of philosophy with research interests in rape culture, believes that some of these changes point to a “weakened commitment” to addressing sexual misconduct at the university.

He cited proposed edits in the ‘Background and Purposes’ paragraph, which suggest changes to the language originally stating that UBC has a “responsibility” to maintain a respectful environment, to it being a “goal” to create one. It was also modified from being UBC’s “duty” to support members of the community impacted by this issue to a “commitment” to do so.

“A responsibility is something you have to do,” Ichikawa said. “A goal is something that you think it'd be nice to do or that you’re trying to do.”

“I think UBC does have a responsibility to maintain a respectful environment. … I don’t know why the policy shouldn’t say so.”

In his analysis of the proposed amendments, he also brought up concerns about the language of the policy when it discusses consent. The new amendments have several additional clauses defining what constitutes consent and when it is appropriate. But he believes they do not possess the coherence required to be properly implemented.

While consent is embedded into the definition of sexual misconduct in the policy, Ichikawa pointed to the proposed amendment 4.1.4 which states that “the initiator of the sexual activity is responsible for obtaining consent.”

“Frankly, I don’t understand what that language is trying to do,” he said.

“But I think what it actually does is get a lot of the cases wrong in important ways. People who initiate sexual interactions can still be victims of sexual violence. If only the initiator is responsible for obtaining consent, then it’s a legitimate defense against sexual misconduct that ‘she started it.’”

Beyond specific wording, Burnham also pointed to another issue with the policy language, namely its legibility for students and survivors. Given that much of the policy was written by legal counsel, she believes the language within SC17 makes it hard for survivors to access the policy.

“It’s really hard to have this lawyered language that is only accessible to such a small population of people who know how to read it and what they're looking for,” said Burnham. “Because before a survivor even goes to a support office, they’re sitting at home trying to read up on different policies and support options and they’re trying to grasp at something to get them through this.”

“If [SC17] was intimidating for me, I can only imagine how much more intimidating it is for people who whose full-time job is not to understand university policy.”

Creating a trauma-informed policy

Among the other amendments, the review committee has also proposed an “immunity” provision in the policy, to ensure that good faith disclosures are not deterred for cases when the incident involves misuse of drugs and alcohol.

“That’s so important, especially with younger students who are living in residence or aren’t legal yet,” said Burnham. “The most important thing is caring for the survivor and … these types of things should never be a barrier for people trying to come forward.”

The committee has also included a new clause whereby if multiple survivors disclose cases against the same perpetrator, UBC can take on the role of main complainant and initiate an institutional investigation against the opposing party, without the consent of survivors.

But according to Burnham, this reflects “anti-sexual violence” motives but not “pro-survivor” ones and raises issues of confidentiality when using survivors’ disclosures.

“[This] is really problematic and not trauma-informed — and it does not require the survivors consent to use their disclosure within this institutional investigation process,” she said.

“So why would anyone want to disclose to UBC if this would always be a potential result of that?”

Burnham also cited the new time-elapsing clause 3.2.1, whereby the director of investigations can decline to investigate a case if they determine enough time has elapsed that “proceeding now would result in substantial prejudice to any person.”

“There really needs to be a set time period ... to include that type of language,” she said.

“This is not reflective of the ways that survivors experienced trauma, where they could wait months or years before feeling comfortable or even wanting to make a report,” Burnham added.

The review committee has proposed the inclusion of a category of “Prohibited Relationships.”

Although it does not propose an outright ban against faculty-student relationships, the amendment prohibits romantic or sexual relationships in which an individual has a supervisory role over a student or holds some degree of influence over the student’s academic advancement.

“The committee definitely recognized the importance of including power imbalances and recognizing that that’s an ongoing problem within academia in general,” said Burnham, “and we wanted to include it in a way that we were able to within the limits of the Conflict of Interest Policy.”

Ichikawa believes it is a “positive step” to create a category of prohibited relationships along these lines.

“I think it is appropriate for certain categories of romantic and sexual relationships to be prohibited,” he said.

But he also mentioned that the language used in the policy lacks clarity and creates ambiguity as to what counts as “influence” or a “supervisory role” over a student.

“I do have concerns about the specification,” he said. “Just which kinds of relationships are prohibited by the policy … I think the language here is quite vague.”

Burnham agreed that the current phrasing of the policy means that evaluations of prohibited relationships would have to be context-specific. She believes that including specific examples — of which there are currently none — would help guide the policy to more clarity in its implementation.

Going forward

Many of the amendments to SC17 also respond to concerns that came out of community consultations planned by the PCI Committee in the summer of 2018.

In a written statement to The Ubyssey, University Counsel Hubert Lai explained that the amount of changes a policy undergoes during the consultation process really depends on the policy in question.

“Some policies attract feedback from dozens of members of the community that result in substantial revisions to the policy. Other policies receive minimal comments and are approved in final form very close the draft submitted for public consultation,” said Lai.

A concern that came out of these consultations was how SC17 stood in relation to other UBC policies and whether it was consistent with the language used in them. Malone said that some of the amendments have been able to “close the gap” between these inconsistencies that were previously identified.

“I do think that there [are] lots of pieces in the policy that are good moves forward,” she said.

This article has been updated to clarify wording in the policy.