Written by: Deborah Eerkes

Q: Shouldn’t my institution require a complaint in order to act when someone discloses sexual violence?

A: It is relatively common for Post-Secondary Institutions (PSIs) to rely on their complaints processes as their primary response to gender-based violence (GBV). Doing so, they have argued, allows them to track the number of “proven” incidents and to impose discipline on those who committed harm. Unfortunately, this approach is based on a number of assumptions that tend to create more barriers for survivors and cause more harm for everyone involved.

These assumptions originate from the belief that incidents of GBV are isolated, that they are the result of a bad person doing a bad thing, and that if that person is removed, safety and balance will be restored. This bears an uncanny resemblance to elements in the criminal legal system, including the notion that a person who causes harm must be held accountable by/to the institution (or the Crown) rather than to the person they harmed, and a belief that punishing the accused is the only reasonable response.

Another feature of the criminal legal system imported by PSIs is the belief that they are unable to act on GBV without a formal complaint. This has not served us well. The reality is that sexual violence is vastly under-reported to law enforcement, and only a tiny fraction of those reports result in conviction or incarceration. Rape myths and bias continue to plague criminal legal systems, from the moment the police receive a report right through the investigation, referral for prosecution, trial, and judicial decisions.

When PSIs adopt these elements from criminal legal systems, they can and should expect similar results. If the PSI’s aim is to respond to all GBV (as in the “zero-tolerance” approach), prevent GBV, track the incidence of GBV on campus – or any combination thereof – a reliance on complaints alone is unlikely to achieve any of those things.

Fortunately, a change is underway in the world of criminal law, but these shifts occur at a glacial pace in systems that are steeped in history and tradition. One only need consider the many less-than-successful attempts to address sexual violence in the military to know how challenging a culture change can be. PSIs are similar in this respect - change can be painfully slow.

Consider also that PSIs and the criminal legal system are simply designed to do different things. PSIs are educational institutions with an obligation to provide a safe environment conducive to teaching and learning. Students attend with an aim to get an education; instructors, professors, and researchers aim to give them the best education possible; and administrative and support staff keep the trains running on time and systems in place to make sure they are all able to do that.

When a survivor reports to the police, they are doing so specifically so that the police will investigate their allegation and the courts will respond with appropriate punishment. They may also have the desire to bring the violence out into the open for public scrutiny. Those are functions of the criminal legal system, and survivors may choose to report for those purposes, despite knowing that it will be difficult and possibly traumatizing.

When a survivor discloses an experience of GBV to their PSI, their needs may have nothing to do with punishing a person who has caused them harm or making the matter public. Moreover, PSIs are unable to carry out the functions of the criminal legal system. The most severe punishment a PSI can impose is to sever its relationship with the respondent, and PSIs are bound by privacy law that prevents any public scrutiny of individual cases of campus GBV.

Many survivors turn to their PSIs for help because GBV interferes with their ability to get an education or do their job. They may be asking the PSI to address a direct barrier to access, such as having to attend class with, work with, or live in the same community with the person who harmed them. They might be suffering from trauma and unable to complete their coursework on schedule. They might be experiencing financial, social, physical and/or psychological effects as a direct result of the GBV that impair their ability to continue.

Where a survivor, whether student or employee, is only seeking support and flexibility, an investigation to determine whether the incident actually happened not only fails to meet that survivor’s needs, it adds another layer of preventable harm.

A survivor-driven response means listening to survivors when they ask for help, implementing trauma-informed responses, and not steering them toward a dehumanizing process that may be more likely to meet the needs of the institution than those of the survivor.

Of course, PSIs are also subject to regulatory frameworks, some of which might require an investigation. Where that is the case, the onus is on the PSI, not the survivor, to do the work without waiting for a complaint. Once the PSI has knowledge of GBV, there is a positive obligation to restore the working or learning environment to one that is safe and violence-free, whether that means identifying the culprit and imposing discipline or engaging in preventative measures to ensure it can’t happen again.

However, especially where a survivor has not made a complaint and the institution initiates the complaint process, all investigators, decision-makers, and others should remember and take into account the experience of all parties involved, using trauma-informed practices and reducing harm wherever possible as they progress through a disciplinary or other accountability process.(You can find strategies for trauma-informed and harm reducing practices in complaints processes in Section 3 of the the Comprehensive Guide to Campus Gender-Based Violence Complaints. The entire Guide is freely available on the Courage to Act Knowledge Centre.)

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Suggested Reference : Eerkes, D. (2022, June). Simple Questions with Complicated Answers Part 4: Shouldn’t my Institution Require a Complaint in Order to Act When Someone Discloses Sexual Violence? Courage to Act. www.couragetoact.ca/blog/simple-questions-part-4.