As a result of Bill 132 coming into force one year ago, colleges and universities in Ontario now have stand-alone policies on sexual violence that outline their institutional responses to addressing complaints of sexual violence. In addition to the availability of a formal investigation, the majority of these policies also make reference to the possibility of “alternative resolution” or “informal resolution”, which a Complainant or Respondent may request at any time before an investigation is completed. Certainly, having options and being able to make choices is integral to the healing process for victims of sexual violence.
Informal resolution can mean any number of approaches to addressing the harmful conduct, such as:
- Letter of apology from the Respondent;
- Impact statement or letter from the Complainant;
- Training or coaching programs; and
- Restorative Justice.
What is Restorative Justice and what can it offer Complainants and Respondents who have experienced harassment or sexual violence? Restorative Justice acknowledges that harmful conduct is a violation of interpersonal relationships, not just laws or policies. Restorative approaches to harm focus on holding the wrongdoer to account for his/her actions while providing an opportunity for all others affected by the harm to address their needs as well. Restorative Justice is based on respect, compassion, and inclusivity, and provides an opportunity for all affected parties to heal and move forward in their relationships.
Universities and colleges are ideal settings for Restorative Justice. In such small communities, the impact of interpersonal harms like sexual harassment or violence almost inevitably extends beyond the Respondent-Complainant relationship. For example, sexual harassment in a student residence can create a climate of fear or uncertainty in the entire residence. The ripple effects may also be felt by other intramural groups to which the Complainant or Respondent belong, such as sports leagues and faculties, not to mention social groups.
Restorative approaches were created precisely to deal with small communities where Respondents and Complainants must find a way to live together after harm has been done. The ultimate goal of any restorative process is to re-establish a safe and respectful environment for all community members. This is particularly relevant for small campus communities where the Complainant will repeatedly encounter the Respondent.
The “circle” is a popular Restorative Justice format that has consistently produced successful results over hundreds of years. A circle is a community conference led by a trained facilitator. By design, a circle provides optimal conditions for participants to have difficult conversations about the harm done and the impact of the harm on all involved—including on the Respondent—so that all parties can redefine their relationships and reclaim their lives. Circle participants must therefore work collaboratively to understand why the Respondent committed the harm, and fully appreciate how the Complainant and community are impacted. They must determine how best to move forward and, ideally, repair the community. Usually, a written resolution will be agreed to by all the circle participants, and retained by the appropriate coordinator for a certain amount of time.
It is challenging for participants to achieve this level of meaningful dialogue. Therefore, there are three fundamental pre-requisites for participating in a circle:
- The Complainant must elect or agree to pursue a restorative approach. The circle can occur without their attendance, but not without their consent.
- The Respondent must agree to engage, and must admit responsibility for the harm done for the circle to be effective.
- All other participants must also attend on a strictly voluntary basis. Unlike mediation, which is sometimes mandatory, restorative circles must be completely voluntary to be effective.
While restorative approaches are ideal in a campus setting, their specific application to campus sexual assault poses some challenges. If the Complainant elects the restorative option and the Respondent agrees, additional considerations would be required to ensure the safety of both parties. This would involve a comprehensive screening process to determine how to conduct a circle in a way that is appropriate for the Complainant, in terms of his or her emotional and physical safety. While these precautions are necessary, Dr. Jo-Anne Wemmers points out that studies show that victims tend to consider circle conferencing an empowering experience, rather than a traumatizing one.
One well-known example of Restorative Justice in a university context took place in 2015 at the Dalhousie University Faculty of Dentistry. There, male students in the dentistry program made sexually violent comments on Facebook about their female classmates. In the face of great resistance from fellow students and other stakeholders, the female students opted for a Restorative Justice process to address the behaviour, rather than simply expelling the students. The process involved a robust and formal investigation in addition to circle conferencing. As the final report describes, the process examined the Facebook incident and the broader cultural and social context that contributed to it. During circles, the female students shared the impact the Facebook comments had on them with the male students and other community members. For their part, the male students accepted responsibility for their actions, listened, and learned from the women, and presented their own findings to the Faculty. In the end, participants arrived at a plan to ensure this behaviour would not happen again. The program was widely considered a success and cemented Dalhousie’s reputation as a leader in the field.
When a Complainant or Respondent elects informal resolution as a way to address a complaint of harassment or sexual violence, a Restorative Justice approach is worthy of consideration, particularly in the post-secondary context.
About the Author Veronica Howard conducts workplace investigations, assessments and reviews. She delivers workplace investigation and human rights training to help clients understand their legal obligations in the workplace. She is also a trained restorative circle facilitator.