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What is consent? Not silence. Not drunk. Not what she did last time

Consent for sexual activity must be informed, freely given, unambiguous, active and ongoing, says a sweeping policy on sexual misconduct approved last night by Algoma University's board of governors.

Consent for sexual activity must be informed, freely given, unambiguous, active and ongoing, says a sweeping policy on sexual misconduct approved last night by Algoma University's board of governors.

The policy, which applies to all members of the university community including students, professors, support staff, administrators, governors, visitors and guests, states that nonverbal communication is not a reliable indicator of consent.

It addresses other issues including nonconsensual posting of photographs and "creeping" on Facebook, Twitter and other social media sites.

Everyone who has experienced sexual misconduct has a right to be believed and treated with compassion, dignity and respect, the policy says.

President Craig Chamberlin said that sexual misconduct has been flagged across Canada as one of the most significant issues for university students.

The following are excerpts from the new sexual misconduct policy:

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SEXUAL MISCONDUCT POLICY
 
Purpose

All members of the Algoma University community have the right to work and study in an environment that is free from any form of sexual misconduct.

The purpose of this document is to:

  • Define and prohibit sexual misconduct; 
  • Promote a safer campus environment in relation to sexual misconduct, both through regulation and through education; 
  • Provide a swift, coordinated, consistent, fair and transparent response to disclosures and allegations of sexual misconduct; and
  • Ensure everyone is aware of the support services and resources available to members of the University community who may be directly or indirectly affected by sexual misconduct.

Scope

This policy applies to all members of the university community: students, staff, faculty, administration, members of the board of governors, visitors and guests.

Supports provided under this policy are available to all members of the university community whether the event occurred on or off-campus.

Definition

Sexual misconduct consists of a range of behaviours that vary in severity.

The term includes, but is not limited to, sexual harassment, sexual assault, the threat of sexual assault, criminal harassment (including stalking and cyber harassment) and relationship violence.

Policy

Sexual misconduct violates our institutional values, in particular, the right of all individuals to be treated with dignity and respect.

Algoma University has zero tolerance for sexual misconduct and is therefore committed to:

  • Ensuring that those who disclose experiences of sexual misconduct of any kind are treated with dignity and respect;
  • Assisting those who have experienced sexual misconduct in obtaining counselling and medical care (if required), whether on or off campus;
  • Providing those who have experienced sexual misconduct with comprehensive information about reporting options;
  • Ensuring on-campus (internal) investigation procedures are available in the case of sexual misconduct;
  • Providing those who experience sexual misconduct with appropriate academic and other accommodation; 
  • Providing statistical information to the university community...
  • Educating and training the university community about responding to the disclosure of sexual misconduct;
  • Providing education and information to students, faculty and staff about how to identify situations that involve, or could progress into, sexual misconduct and about how to reduce and prevent these forms of violence and harassment; and
  • Working closely with student groups on sexual misconduct prevention.

DEFINITIONS

Sexual harassment

Sexual harassment Is defined in the code as a course of vexatious comment or conduct of a sexual nature that is known or ought reasonably to be have been known to be unwelcome.
 
Sexual harassment can include, but is not limited to:
  • Unwelcome sexual advances;
  • Unwanted attention that is or feels sexual in nature;
  • Implied or express rewards or benefits for sexual favour and implied or express threats if sexual favours are denied;
  • Requests for sexual favours;
  • Verbal or non-verbal or physical conduct of a sexual nature;
  • Indecent exposure (prohibited under section 173 of the Criminal Code of Canada);
  • Voyeurism (prohibited under section 162 of the Criminal Code of Canada);
  • Unwelcome remarks and/or vexatious comments about someone’s sexuality, appearance and bodily presentation, gender or gender expression;
  • Attempts to extort sexual favors;
  • Inappropriate touching;
  • Repeated and vulgar sexual comments;
  • Display of pornographic and/or suggestive calendars, signs, posters and/or photographs; and
  • Non-consensual posting of pictures, aggressive comments or stereotypes and slurs on social media, including, but not limited to: email, Facebook, Twitter.
  • Non-consensual sending of images and jokes.

All forms of sexual harassment and sex-based harassment are serious offences because these actions create a hostile, intimidating or offensive working and learning environment.

Stalking

Stalking is a form of criminal harassment prohibited by the Criminal Code of Canada, section 264.

It involves behaviours that occur on more than one occasion and which collectively instill fear in the target or threaten the 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 and pursuit;
  • Sending unsolicited gifts (romantic, bizarre, sinister or sexualized);
  • ‘Creeping’ via social media/cyber-stalking; and
  • Uttering threats.

Sexual assault

Sexual assault is prohibited by section 271 of the Criminal Code of Canada. Sexual assault is sexual touching of another person with any object or body part that is without consent or by force.

Any sexual activity without consent is sexual assault under the Criminal Code.

Sexual assault can occur if the alleged assailant is a married spouse, an intimate or dating partner, a friend or acquaintance, a known person in a position of authority, or a complete stranger.

Consent

Under section 273.1 of the Criminal Code of Canada, consent is the voluntary agreement to engage in the sexual activity in question.
 
This means that there must be an understandable exchange of affirmative words which indicates a willingness to participate in mutually agreed upon sexual activity.
 
Consent must be informed, freely given and active, and ongoing.
 
It is the responsibility of the initiator of sexual activity to obtain clear and affirmative responses at all stages of sexual engagement.
 
Relying on non-verbal communication can lead to miscommunication about intent and it is important each participant clarifies their willingness to continue at each progression of sexual activity to ensure active and ongoing consent.
 
Further, impaired judgement that leads an assailant to think or believe there was consent is no excuse.
 
People often do not fully understand consent and can feel that the line between consensual sexual acts and sexual assault can be unclear.
 
This is particularly true when an acquaintance or friend is the perpetrator.
 
Consent:
  • Is not silence or the absence of ‘no’;
  • Is never assumed or implied;
  • Cannot be given by someone who is incapacitated by alcohol or drugs or who is unconscious;
  • Can never be obtained through threats, coercion or other pressure tactics; 
  • Can be revoked at any time, whatever other sexual activities have taken place; 
  • Cannot be obtained if the initiator abuses a position of trust, power or authority;
  • Cannot be assumed from previous consent to similar activities; and 
  • Is active and ongoing.

Incapacitation

Incapacitation s a state in which someone cannot make rational decisions because the individual lacks the capacity to give consent (to understand the ‘who, what, when, where and why’ of their sexual interaction).

Sexual activity with someone who one knows to be, or based on circumstances should reasonably have known to be, mentally or physically incapacitated (by drug or alcohol use, unconsciousness or a blackout) constitutes sexual assault.

Evidence of incapacitation may include:

  • Slurred speech;
  • Bloodshot eyes;
  • The smell of alcohol on one’s breath;
  • Shakiness;
  • Vomiting;
  • Confusion about self/surroundings etc.;
  • Unusual/strange behavior and/or state of emotional distress; and/or
  • Unconsciousness.

If there is evidence of any of the above, the initiator of sexual activity should always err on the side of assuming a party to be incapacitated, rather than risking committing sexual assault.

Force

In the context of sexual misconduct, force is the use of physical violence and/or imposing on and/or restricting someone physically to gain sexual access to that person.

Force also includes threats of harm to self or others, intimidation and or coercion to overcome resistance.

Coercion

Coercion, in the context of sexual misconduct, 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.

Bystander intervention

Safe and positive options that may be carried out by an individual or individuals aka a bystander to prevent harm or intervene when there is a risk of dating violence, domestic violence, sexual assault, or stalking.

Bystander intervention includes recognizing situations of potential harm, understanding institutional structures and cultural conditions that facilitate violence, overcoming barriers to intervening, identifying safe and effective intervention options, and taking action to intervene.

Algoma University's commitment

Algoma University recognizes the challenges faced by those who have experienced sexual misconduct, but urges individuals to make use of the supports available under this policy.

All those who have experienced sexual misconduct have a right to:

  • Be believed, and treated with compassion, dignity and respect;
  • Be informed about on-campus and off-campus (community) services and resources;
  • Decide whether to report the incident to the campus response team, campus security, and/or the local police;
  • A fair and unbiased on-campus investigation with the full cooperation of the institution;
  • Be provided with assistance in formulating a safety plan;
  • Be provided with necessary appropriate accommodations to prevent further unwanted contact with the alleged perpetrator if the perpetrator is a member of the campus community; and
  • Choose amongst these supports, selecting all, some or none of the above options.

Individuals who wait to initiate a complaint must understand that in the absence of an investigation and/or a finding of wrongdoing, there may be a limit to the scope of possible accommodations.

Algoma University reserves the right to initiate an internal investigation and/or inform the local police of the need for a criminal investigation, even without the consent of the individual who experienced sexual misconduct, when the safety of the university community is believed to be at risk or to comply with any legal requirements it may have. The individual will be advised of the disclosure.

Confidentiality

Confidentiality is particularly important to those who have disclosed sexual misconduct.

If the individual seeks accommodation, all involved staff will protect the confidentiality of all those involved.

When sexual misconduct is disclosed, the confidentiality of all parties must be protected Individuals who experience sexual misconduct should be aware that filing an incident report with campus security or university staff is confidential and does not necessarily lead to a criminal investigation.

If an investigation is carried out, the names of those involved will not be released except as required to conduct the investigation and as required by law.

At the completion of the investigation, the name of an individual determined to be in violation of the sexual misconduct policy may be released by the university as part of any disciplinary outcome.

The public accusation of sexual misconduct without engaging appropriate procedures for adjudication of the complaint is a violation of community standards, privacy and due process.

Confidentiality cannot be assured in the following circumstances:

  • An individual is at imminent risk of self-harm;
  • An individual is at imminent risk of harming others; and/or
  • There are reasonable grounds to believe that others in the university or wider community may be at risk of harm.

In such circumstances, information would only be shared with necessary services to prevent harm.

The name of the person who has experienced sexual misconduct would not be released to the public.

Prevention and training

Members of the university community are encouraged to contribute to the prevention of, intervention in, and effective response to, sexual misconduct.

All members of the university community may play a role in building a safe and just educational environment by learning about sexual assault through educational programs including:

  • Educational sessions for new students during orientation;
  • Specific training for the campus response team, residence advisors, security and campus bar staff
  • On-line training modules for administration, board of governors, staff and faculty;
  • On-line training modules for students;
  • Peer support training provided by qualified off-campus personnel;
  • Modelling healthy and respectful behaviour in personal and professional relationships;
  • Speaking out against behaviour that encourages sexual misconduct and assault, such as sexism, ableism, racism, homophobia and transphobia;
  • Speaking out against behaviour which discourages reporting, such as racism and sexism, the perpetuation of rape myths and blaming of the person who has experienced sexual misconduct, and joking about sexual misconduct and gender inequality;
  • Developing the skills necessary to be an effective and supportive ally to those who have experienced sexual misconduct; \
  • Intervening in situations that could lead to sexual misconduct when safe to do so; and
  • Bystander training - interrupting sexual misconduct when it is safe to do so.

Campus security, student services and residence life staff will take part in mandatory annual training to effectively report and investigate incidents and provide support to individuals who have experienced sexual misconduct.

Local agencies are consulted and collaborate in all training programs.

Working with staff in student housing services, student government, campus security, health and safety and human rights and equity office, the director of ancillary and student services has responsibility for ensuring ongoing awareness programs are offered on campus.

The director will complete an annual report that summarizes sexual misconduct incidents, completed training and recommendations for improved services to students.

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David Helwig

About the Author: David Helwig

David Helwig's journalism career spans seven decades beginning in the 1960s. His work has been recognized with national and international awards.
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