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Achieving fairness: Law Professor co-authors guide to campus sexual violence complaints

June 12, 2020 — 

Robson Hall Faculty of Law Professor Karen Busby recently published Achieving Fairness: A Guide to Campus Sexual Violence Complaints (Thomson Reuters/Carswell 2020) together with co-author Joanna Birenbaum, a litigator with Ursel Phillips Fellows Hopkinson LLP in Toronto. Birenbaum specializes in equality and human rights, professional discipline and regulation, administrative/public law, employment law and domestic violence and sexual assault law. Busby has been the Director of the Centre for Human Rights Research at the University of Manitoba for nearly a decade, and is a professor of Constitutional, Administrative, and Reproductive and Sexual Rights Law. 

“Anyone drawn into decision-making on a campus sexual violence complaint faces a steep learning curve,” the book description reads, summarizing that the authors “take readers through the procedural, evidentiary, substantive and discretionary legal issues that can arise when these complaints are made.”

The authors explore the interface between the legislative requirements to adopt stand-alone sexual violence policies and other norms, including common law principles and other legislation especially privacy laws. Their survey of 25 sexual violence policies from across the country reveals widely divergent approaches to issues such as the availability of interim measures; whether to suspend campus proceedings if a criminal charge is laid; complainants’ right to participate in the process; and, privacy issues related to disclosure of the existence of a complaint, investigation and other reports and outcomes, and the right to cross examine.

More fundamentally they explore whether the objectives animating sexual violence policy complaint-based processes may be in conflict. Most would say that these policies should be about challenging gender-based violence, encouraging a culture of response, restoring or creating safety, and ensuring that complainants’ needs are met. These are human rights objectives. But, is discussed throughout the book, especially where these policies are grafted onto student discipline policies and focus on individual wrongdoing, their focus becomes disciplinary. Disciplinary objectives may encourage a culture of denial and focus on the procedural rights of respondents.

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