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Most reported cases of sexual misconduct on university campuses follow a common narrative: a male professor engages in sexual misconduct with female student. This scenario pits sexual violence advocates against institutions and engages the media. But what happens when the narrative changes?
Consider a typical case at Brock University. An investigation found that one of Brock’s male professors engaged in sexual harassment by making unwelcome sexual advances and sexual comments, and inappropriately touching one of his female graduate students. The professor was suspended for just over three months without pay, and an additional six months with pay. The summer before he was to return to work, his courses were cancelled because of safety concerns among staff and students, as well as negative media attention. He grieved this cancellation. An Arbitrator upheld his grievance and allowed the professor to teach in the following term. The media attention around this case continues unabated. Over 1500 people have signed an online petition demanding that this professor be terminated.
Now consider an atypical case at the University of British Columbia. UBC received an anonymous package containing information about one of its academic advisor’s activities on a “gay app for chat, dating, and social networking.” His profile stated that he was a UBC employee and included the following description:
[He] was 53 years old and…was a ‘Geek, Daddy, Discrete, Guy Next Door’…he was into ‘Geeks, College, Twinks, Discrete’; described his sex preferences and safety practices; and said that he was looking for ‘beer drinking buds, cyclists, sons wanting a dad, passionate bottoms’; and that his kinks included ‘dad/son role play’
The academic advisor was confronted with this information in a disciplinary meeting. The academic advisor acknowledged that he had engaged in consensual sexual encounters with students, but never with a student with whom he had an advisory relationship. He said that he would also never act as an advisor to someone with whom he had a sexual encounter. In the meeting he was asked whether he had sex with “underage” students, which he denied.
Shortly after this meeting, he was terminated for cause.
UBC claimed that the academic advisor violated its conflict of interest policy by engaging in consensual sexual encounters with students when those students could have used his services (students were not limited to using the services of this specific academic advisor). When this case was brought before the British Columbia Human Rights Tribunal, the Tribunal Member found that the academic advisor was terminated based on legitimate concerns about his potential abuse of power arising from consensual sexual relationships with students. The Tribunal Member summarily denied that his termination was in any way related to his sexual orientation.
The media had no interest in this academic advisor’s case. There were no petitions by advocates for those who had consensual sex with this academic advisor, whose trust in UBC’s academic advisory services was potentially broken.
When a case of sexual misconduct does not neatly fit into a conventional narrative, it poses a challenge to employers, investigators and decision-makers: can they understand both the context and the ethics of the unfamiliar behaviour at issue? If they cannot meet this challenge, they may overstate the harm, or potential for harm, from the unconventional sexual behaviour. This could occur out of an abundance of caution to mitigate their lack of understanding or deep-seated unconscious bias. In the UBC case, there also appeared to be conscious bias insofar as the employer reified the stereotypical association between homosexuality and paedophilia – the academic advisor was specifically asked whether he had sexual encounters with underage men. Ultimately, the result is an adverse effect on certain people solely because they do not engage in heteronormative sexual activity. Comparing the Brock and UBC cases based on the harm that occurred in each case sheds light on this adverse effect.
In the Brock case the harm that occurred was both proven and significant. A female graduate student was sexually harassed at the hands of her supervising professor. The professor’s colleagues and potential students expressed concerns about their safety upon his return to campus. Despite this proven harm and the intense media scrutiny, which caused additional reputational harm, Brock allowed this professor to return to campus to teach.
In the UBC case, the harm that occurred was speculative and the potential impact on a student was minimal. A student could seek advice from an academic advisor with whom he had a brief, consensual, anonymous sexual encounter, which could undermine his sense of trust with that academic advisor, but the student would also not be obligated to use that academic advisor’s services. This inchoate harm led to a for-cause termination.
While one can debate the challenges of terminating a tenured professor as opposed to an academic advisor, this much is true: investigating and disciplining unconventional sexual misconduct carries an enhanced risk of making a decision that is discriminatory. It should be done by someone who can recognize their bias and not overcompensate for the alleged harm because they are unfamiliar with the sexual behaviour at issue. Ultimately, they must understand that sex is not more harmful just because it’s different.