Proposed Act steps up post-secondary institutions’ obligations in sexual misconduct incidents

The recently proposed Sexual Violence and Misconduct Policy Act will, if passed into law, impose a number of obligations on post-secondary institutions in British Columbia to implement policies for dealing with sexual assaults involving students.

Sexual assaults on university campuses have received much attention in the media in the last several months.The Sexual Violence and Misconduct Policy Act (Bill 23 – 2016; the “Act”), will also expand reporting requirements regarding sexual misconduct and give the minister additional powers to obligate the institution to conduct a survey among students on behalf of the ministry to examine the effectiveness of the school’s policy.

Expanded Sexual Assault Reporting Procedures and Student Consultation
Under the proposed Act, post-secondary institutions will be required to establish and implement a sexual misconduct policy that includes both prevention measures and response procedures. It is proposed that these will include processes for making and responding to complaints of sexual misconduct involving students, and guidance on producing reports for such incidents. The Act would require that this policy be publically available on the institution’s website.

The proposed Act also requires the post-secondary institution to consult with students and other designated persons when creating its first sexual misconduct policy, and again during policy reviews which are required at least once every three years. Institutions that already have a sexual assault policy that complies with the Act would not be required to draft a new policy, but would still be subject to reporting requirements.

The current Act also stipulates that the president of the post-secondary institution must report to the governing body on the implementation of its sexual misconduct policy.

Ministry may compel Institution to conduct Student Surveys
Under the provisions, the minister may also direct a post-secondary institution to conduct a survey to review the effectiveness of its sexual misconduct policy, which the post-secondary institution will be required to submit to the ministry. The Act would also give the ministry the power to direct that the survey be conducted in a certain fashion and include certain questions to be answered by the student body.

Intention to distress required for photographs or videos to be considered misconduct
Notably, given the definition of “sexual misconduct”, the distribution of sexually explicit photographs or videos of a person without that person’s consent will not be considered sexual misconduct unless it can be shown that the photos or videos were distributed with the intention of distressing the person in the photograph or video. This onerous provision could give rise to a number of potential controversies as well as administrative issues. It will be interesting to see whether the definition of “sexual misconduct” is changed to remove this requirement as the Act passes through the various stages before coming into force.

Interestingly, the Bill does not currently include any penalties or remedies for the breach of its conditions. However, the Act also in its current form provides immunity to board members or anyone acting under their direction in exercising or intending to exercise their powers under this or any other enactment. While this provision does not apply to anyone acting in bad faith, the immunity conferred in this clause, combined with the Act’s silence as to any remedies for its breach, could likely be of some concern to stakeholders.

The Bill recently underwent its second reading and is not proposed to come into force until one year after it receives royal assent.

UPDATE: the Bill received Royal Assent on May 19, 2016 and will come into force a year after that.

EKB’s Regulatory & Administrative team will monitor the progress of this bill in order to keep you informed.

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