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In the strictest confidence: reviewing confidentiality clauses with a view to fostering engagement and limiting risk

Included in Discovery: Atlantic Education & the Law – Issue 08


Jacob Zelman

Striking the proper balance

Public discourse around instances of sexual violence is at an all-time high. In the wake of the #MeToo movement there are signs of greater willingness to speak up against sexual violence. With greater public accountability for perpetrators, there may also be increased motive on respondents to “clear their name” based on the stigma that attaches to perpetrators of sexual violence.

Social media often becomes the platform of choice for the complainant, the respondent, or witnesses to an act of sexual violence to provide their explanation of the circumstances behind an allegation of sexual violence. In promising confidentiality, educational institutions are right to limit promises to what they can realistically control.

Even the best drafted sexual violence policy is of limited use if it does not foster engagement in the community it seeks to protect. Confidentiality is vital in order to provide an environment in which victims can report instances of sexual violence, obtain support and ensure reports of sexual violence are dealt with fairly. A well-drafted sexual violence policy:

  1. protects a complainant’s privacy insofar as is possible;
  2. builds confidence through transparency, both in process and outcome;
  3. satisfies requirements of procedural fairness; and
  4. limits institutional risk.

Past practice

Canadian educational institutions have not only been facing mounting political pressure to respond to allegations and findings of sexual violence, but they may also risk complaints and lawsuits by students and employees if they fail to do so. For example, suits have been filed by students who claim that inadequate security provided by the university for places such as residence and laboratories facilitated sexual assaults.1 Actions have also been initiated against educational institutions by students alleging that universities have responded inadequately after acts of sexual violence have been committed.2

In addition to allegations of both inadequate preventative measures to reduce instances of sexual violence and inadequate responses to reports of sexual violence, confidentiality practices employed by educational institutions in the aftermath of sexual violence investigations have also come under particular scrutiny.3

Few practices have received more media criticism than the use of non-disclosure agreements in resolving complaints of sexual violence, particularly complaints of sexual violence involving faculty members. Critics emphasize that the existence of non-disclosure agreements in resolving disputes of this nature could have the effect of allowing perpetrators to move to other institutions where they could offend again. Critics further stress that under the banner of confidentiality, institutions go too far in seeking to protect their reputational interest over the safety interests of students.

Campuses in 2021

Effective confidentiality provisions will address interim measures pending investigation or hearing up to, including and past the point of resolution. Though policies should be drafted thoughtfully to consider a variety of eventualities, there may not be a “boilerplate” approach to every given situation.

There must be rules protecting a complainant’s privacy insofar as is possible. This being said, the degree of procedural fairness owed to respondents involves, among other things: 1) the right to know the case against them; 2) the right to receive any document that will be relied upon in the decision; 3) the right to be judged by an unbiased decision-maker; and 4) the right to be given reasons for the decision.

Victims should be free to tell the story of their own experiences. Victims should, however, be informed that if they so choose to make public statements about an ongoing investigation arising from a complaint of sexual violence, the investigation may be compromised and the victims may be putting themselves at risk of civil lawsuits by those who believe they have been defamed. A well-drafted policy upholds necessities of individual and institutional accountability while balancing the rights of the parties involved.

Addressing instances of sexual violence at educational institutions requires the engagement of that specific institution’s entire community, not only those most vulnerable. A well-crafted policy should attempt to ensure that complainants feel comfortable remaining in the educational institution’s community in the aftermath of a sexual violence investigation.

Confidentiality is key to engagement. For example, in the criminal law context, courts often use initials for the name of an accused if releasing their name will also identify the complainant. Publication bans are also commonly used. Despite concerns of confidentiality, practical limitations exist respecting the level of confidentiality that can be offered by a sexual violence policy. Campuses are often small and closely knit. Educational institutions should at a minimum ensure that the school newspaper and other media do not report on a complainant’s name or identifying information. Any publication of the results of a disciplinary process should only use initials for the complainant. An updated media policy may be required.

Transparency is also critical to engagement. Investigations which lack overall transparency may in fact have a chilling effect on individuals who may seek to come forward with reports of sexual violence.4 The adage “not only must Justice be done; it must also be seen to be done” rings especially true for sexual violence investigations. It is easy to see how objectives of transparency and confidentiality can at times conflict. To build confidence in the process and outcomes of sexual violence investigations, policies should recommend collection, analysis, and public release of data in a manner that does not interfere with confidentiality obligations owed to parties involved in investigations.

Moving forward

Prevailing societal views have become increasingly less tolerant toward acts of sexual violence. Sexual violence is, however, not only a societal issue but specifically an issue facing educational institutions. Acknowledgment by educational institutions of the prevalence of sexual violence, and the development of clear, responsive and transparent policies to address this issue, are crucial to alleviating safety concerns of students as well as liability concerns at an institutional level.

If your institution does not have a current, well-drafted sexual violence policy in place, one should be implemented. Stewart McKelvey can assist with reviewing policies, developing and drafting new policies, and advising on your institution’s responsibilities and potential liabilities. Stewart McKelvey can also provide in-house training for staff as well as legal advice and further ongoing support.


1 Karen Pinchin, “Sex-Assault victim sues Carleton for negligenceMacleans (August 10, 2009), online
2 Kristy Hoffman, “York University fails to support sex assault victims, woman saysCBC News, (March 3, 2015), online
3 Ibid.
4 Leah Hendry, “McGill profs back students on call for investigation into sexual misconduct allegations,CBC News, (April 16, 2018) online

 

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