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03/30/2019 08:00 EDT | Updated 04/11/2019 10:59 EDT

Universities 'Acting Like Church Did Decades Ago' On Sexual Misconduct Secrecy

Despite provincial legislation meant to spur change, university secrecy around allegations and investigations is hampering those efforts, experts say.

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The University of Windsor is alleged to have signed a non-disclosure agreement in relation to an investigation into sexual misconduct allegations.

Universities across Ontario have bolstered student supports in recent years to prevent sexual assault on campus, but behind closed doors they continue to foster a culture of secrecy that's stifling real change, experts say.

Students who report instances of sexual misconduct by other students or professors are sometimes required to sign non-disclosure agreements — often referred to as gag orders — as part of their settlement, said Susan Vella, a Toronto lawyer who represents sexual misconduct survivors in civil litigation cases. The gag order prevents students from speaking publicly about the abuse.

"Some universities are requesting broad-ranging non-disclosure agreements, and that's the disturbing thing. It's another form of coercive control over the survivor," said Vella. "They're acting like the church did decades ago," referring to the systemic coverup of Catholic clergy members sexually abusing vulnerable parishioners.

It reminds me of priests moving from one parish to another.Lynne Hanson, Queen's University

Non-disclosure agreements and the resulting silence perpetuates a culture of sexual violence, Vella said. "Students don't come forward because they don't think anyone else has come forward, which makes it harder to break the silence. When you have a culture of silence, it instills in survivors a fear of coming forward."

Watch: Are non-disclosure agreements fair? Story continues below

Universities also sign non-disclosure agreements when reaching settlements with accused professors, who then go on to work at other universities that are not made aware of prior accusations or investigations.

"It reminds me of priests moving from one parish to another," said Lynne Hanson, a Queen's University law professor. "A university just wants the person to go away."

It's been two and a half years since the province passed legislation that requires universities and colleges set up sexual violence policies, and collect information about the prevalence of sexual assault on campus. Post-secondary institutions had come under fire for how they handled sexual assault investigations.

HuffPost Canada spoke to seven experts, including lawyers and professors, who all said that while university culture around sexual assault has improved compared to decades ago, significantly more needs to be done to understand the extent of the problem, protect students and empower survivors.

Adrian Wyld/The Canadian Press
The Carleton University campus is seen here on Oct. 25, 2017 in Ottawa.

"I think many of us thought things were better," said Diana Majury, a law professor at Carleton University for the past 30 years. "But we have now managed to push it behind closed doors. I don't have any idea of how bad it is here. We're not talking about it."

Last year, while on the promotion committee, Majury said she tried to have a discussion with her colleagues about a professor seeking tenure, who she had reason to believe had been secretly disciplined for sexual misconduct. She wanted the committee to decide if this information was relevant and sought out more details, confidentially, from administration. She was voted down.

"It was shocking to me my colleagues weren't willing to have a discussion about this," Majury said. "It's creating a chilly climate. People are afraid to talk about these issues."

A recent survey done for the Ontario government found that only 22 per cent of university student respondents said they strongly agreed they had knowledge of sexual violence supports, services and reporting procedures.

More than 63 per cent of respondents disclosed they had experienced sexual harassment, 23 per cent had experienced stalking and 23 per cent experienced a non-consensual sexual experience.

Julie Macfarlane/Supplied
University of Windsor Prof. Julie Macfarlane is being sued for defamation.

University of Windsor professor Julie Macfarlane has refused to stay quiet about a former colleague who she said sexually harassed a student. The allegations surfaced in 2013 when a student approached Macfarlane and other staff and claimed she had been sexually harassed for more than a year.

Research co-ordinator Sue Rice told HuffPost the student confided in her as well. "The culture had been at the school for a while. It didn't come as a shock," said Rice, who stopped working at the University of Windsor in 2015 when her contract ended. The student declined comment to HuffPost.

Macfarlane believes the allegations resulted in the colleague leaving his tenured professor position in 2015.

I couldn't possibly not tell them that these are the circumstances.Julie Macfarlane

In 2016, she said she was contacted by a senior lecturer at a university, where the former colleague had applied for a position. The lecturer was seeking more information about the man's departure from Windsor.

Macfarlane told him what she knew about the allegations. "I couldn't possibly not tell them that these are the circumstances," she said in an interview.

In 2017, Macfarlane said the student who originally brought forward some of the complaints reached out to her, concerned about that the man was now working at an Ontario law firm. She told HuffPost that she spoke with partners at the company because of concern over the safety of their female employees and for their reputation.

Now, she's being sued for defamation by her former colleague.

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Macfarlane told HuffPost Canada that she believes that the University of Windsor, as part of a settlement with the professor and likely to avoid expensive arbitration, signed a non-disclosure agreement and has remained silent about the allegations ever since.

The University of Windsor did not comment about its use of non-disclosure agreements or the allegations made about the former professor. The school did state it is a "leader in the development and implementation of programs to reduce the incidence of sexual violence on campuses and to provide sexual assault resistance education."

Macfarlane has gained support from colleagues and universities across Canada, and launched a GoFundMe page to pay her legal fees. The University of Windsor said it is working with Macfarlane to "resolve the issues."

Watch: What you can do to better help survivors of sexual assault. Story continues below.

University of Ottawa Prof. Martha Jackman, co-chair of the National Association of Women and the Law, sent a strongly worded letter to the University of Windsor to "protest the failure to support (Macfarlane) against the meritless defamation lawsuit." It's also signed by 30 other professors from more than a dozen universities.

"I really hope the university is considering the impacts of this beyond its reputation," Jackman said.

Hanson, from Queen's, said that while defamation is relatively easy to prove, she thinks Macfarlane has a strong defence of qualified privilege, that when asked for her opinion "she had a moral and social duty to report." Qualified privilege will only work if she can prove she didn't seek out his employers to defame him.

If she can prove she attempted to get information from both sides before giving these references, that could also help her case, Hanson said.

Where do NDAs fit in #MeToo?

There's a growing global movement against NDAs in cases of sexual misconduct allegations.

Sixteen U.S. states have recently introduced formal legislation restricting their use. The U.K. is also in the process of putting similar limitations in place.

The Ontario government didn't comment when asked if it is considering limiting the use of NDAs at universities. It did say it is requiring post-secondary institutions to have a task force devoted to tackling sexual violence and to review their sexual violence policies by September.

Andrew Francis Wallace/Getty Images
Merrilee Fullerton, Ontario Minister of Training, Colleges and Universities, speaks at a news conference on Nov. 22, 2018. She recently announced she's doubling the province's investment in the Women's Campus Safety Grant for the current school year.

"Our post-secondary institutions have a responsibility to protect students and must do everything possible to ensure campuses are free from sexual violence," said spokewoman Tanya Blazina, at the Ministry of Training, Colleges and Universities.

Confidentiality during a university investigation is important so that external pressures do not influence what complainants, respondents or witnesses say, and to protect them from being unfairly ostracized, said Karen Busby, a University of Manitoba law professor.

And then if a university finds the respondent should be dismissed, they likely face a costly arbitration process, including victims having to testify, that can often be avoided altogether by signing a non-disclosure agreement.

"It's never a slam dunk they're going to win," Busby said. "The university has to ask, what's the best choice for us right now? Do they risk hundreds of thousands of dollars of legal fees, and putting women on the stand, until the whole matter is decided. Or do they say the only thing between us and the settlement is a non-disclosure agreement, which means he's gone?"

Watch: Former assistant to Harvey Weinstein lambasts company non-disclosure agreement. Story continues below.

The experts HuffPost Canada spoke to agree that something needs to change — whether it's getting universities to annually report more publicly what types of investigations have taken place, and their outcomes, or changing laws to require they disclose investigations to future employers. Perhaps they hand the matter over to police, who do a more conclusive criminal investigation in the public interest, said Hanson.

Attitudes need to change, too, said Majury, from Carleton.

"I'm not sure what I think about how public these investigations should be, but I'm not sure why we're so protective of people if they've been found to do something wrong. There's lots of thinking and research and discussion that needs to be done, but there's even resistance to that."

EDITOR'S NOTE: This story has been updated to respect the ongoing legal proceedings involving Julie Macfarlane.