Students say university’s limited jurisdiction deprived them of recourse on campus
This story contains discussion of sexualized violence, including physical abuse and sexual assault.
She met him in a typical way. They matched on a dating app, the sparks fizzled, and they later re-connected through mutual friends. They shared a major and had some classes in common so they naturally grew closer as time wore on. But as they did, he began physically abusing her.
It’s nearing the end of the summer, and Holly* is telling me her story over Zoom. In a few weeks, she’ll be returning to classes. The situation is causing her anxiety — she can’t shake the thought that she might run into the student that she alleges abused her. Holly’s name has been kept anonymous to protect her.
I talked to Holly again later on in the fall. She is still a UVic student, but so is he.
“For the first two days of class … I had to leave all my classes to cry a couple times just because I was so scared he was going to walk in,” she said.
Holly has recounted her story to the Saanich Police Department (Saanich PD) and UVic’s Equity and Human Rights Office (EQHR). She says she has connected with other women who say they’ve been hurt by the same man, like Maddy*, whose name has also been changed out of concern for safety.
Despite months of encouraging other women to come forward and jumping through legal hoops, the man Holly and Maddy allege assaulted them still attends his classes at UVic every day and has yet to be convicted on any related charges.
Holly began hanging out with him in January 2020. When the pandemic hit, they became even closer. She says he became one of her closest friends and confidants. He knew about her struggles with mental health and that she was recovering from self-harm. He began texting Holly sexual things in August.
From approximately September 2020 to January 2021, they would hang out about three times a week. Holly describes his behaviour as violent. She alleges that he would punch her while wearing large metal rings and strangle her unconscious, including to the point that she had a seizure. Holly also alleges that he sexually assaulted her while she was unconscious. She says she has developed acute traumatic stress disorder from these incidents.
In February 2021, Holly spoke to some other women who had experiences with the same man and started to perceive the relationship as abusive. She contacted the police during that same time.
In October, Saanich PD informed her that their report on her case was going to be sent to Crown Counsel. A month later, Holly learned that the Crown decided not to press charges from her case.
Maddy met the same man in August 2020 by matching with him on Tinder. After texting for a bit, they ended up hanging out one time. She alleges he sexually assaulted her.
“I kind of pushed it away when it first happened,” she said. “He did take advantage of me … he barely knew who [I was].”
Maddy says her mental health has worsened and she finds normal activities exhausting.
Maddy didn’t feel ready to report right away but she did have a rape kit created. She officially reported the assault to police in February. However, her case didn’t go to court — the Crown decided not to press charges after two separate investigations.
Though Holly and Maddy’s experiences are different in many ways, they were both UVic students when they met the man they allege assaulted them and want to ensure other students are not put at risk. They disclosed their experiences to EQHR, but they said EQHR has told them that their cases fall out of EQHR’s jurisdiction.
UVic’s EQHR oversees the university’s Sexualized Violence Prevention and Response Policy (SVPRP). The policy guides what the office is able to do, and what they aren’t.
When a person discloses an instance of sexualized violence to EQHR, they typically meet with someone and discuss their options. This process is intended to be survivor-centred and can lead to safety planning or referrals to support services. In some cases, it will ultimately lead to an investigation.
The investigation stage is important. Without an investigation, EQHR is limited in their ability to reprimand any member of the university community that has allegedly harmed someone.
Holly and Maddy want themselves and others to be safe at UVic which, in their view, would require knowing that the man they allege abused them is no longer on campus. But this isn’t a step EQHR is able to take. Even though Holly, Maddy, and their alleged abuser are all UVic students, their cases fall outside of EQHR’s jurisdiction.
The SVPRP states that EQHR can only investigate incidents perpetrated by a member of the university community that occurred on campus, on property controlled and used by the university, or while engaged in a university activity like a co-op placement or online meeting. They can also investigate incidents where the perpetrator had a power relationship with the survivor, like being their professor or boss.
Leah Shumka is the acting associate director of conflict engagement and investigations at EQHR. One of her responsibilities is to lead the team that works in the sexualized violence resource office.
“In our office, we try to offer survivors whatever options and supports we can,” Shumka said. “While there are sometimes limitations in what we can do … this is due to policy and legal limitations that we have to abide by. If anything we are looking for more opportunities to support survivors.”
Shumka adds that EQHR can be a place for support for those people involved in incidents outside their jurisdiction as they can refer them to resources like counselling, facilitate academic concessions or course changes, or begin a Voluntary Resolution Process. A Voluntary Resolution Process is essentially a facilitated discussion that both parties agree to participate in and that does not result in any determination of whether the policy has been breached. But they can’t initiate investigations for these cases.
Holly and Maddy’s cases are connected to UVic in many ways, but the actual incidents that they allege occured did not take place occur on campus, on university property, through a university-affiliated activity, or with someone who was in a position of power over them — the incidents allegedly occurred in private residences between students. They don’t fall under EQHR’s jurisdiction.
Both Holly and Maddy were UVic students at the time of these incidents. The man they alleged abused them was and is still a UVic student. Holly shared classes with him, which allowed them to get closer.
“He is targeting students on campus and then bringing them off campus,” Holly said.
Holly and Maddy want to see the man they allege assaulted them removed from the university. Under EQHR’s policy, it is possible for an investigation to result in the president deciding to expel a student who has violated the SVPRP.
There are other options, too. The university can suspend a student or mandate that they take sexualized violence training. UVic can bar them from certain areas on campus. But without an investigation, UVic cannot make any of these options available.
“Whether or not a student is engaged in a process through EQHR, if they come forward and disclose we can support them in identifying alternatives to being in a class with a student,” Shumka said. “We cannot move the person identified to have caused harm, if there has not been an investigation where they have been found to breach the policy.”
The investigation process, when it does happen, generally takes three months. At the end of the investigation, the parties involved are given a copy of the report compiled by a third-party investigator. This report is also given to the university’s president, who ultimately decides if any sanctions are necessary based on the report’s recommendations. At the end of this process, the person or people that came forward do not get to know what the president decided to do. The consequences are considered private information and protected by privacy policies.
Holly says this detail has prevented other women who allege they’ve been harmed by the same man from coming forward. Once they have re-told their story and gone through a three-month investigation, they won’t be able to know what consequences resulted. Holly says she has spoken to other women and encouraged them to come forward but they don’t want to engage in the process if they’ll never know the result. But without incidents that fall within EQHR’s jurisdiction, Holly says she has been told an investigation into the man she alleges assaulted her is unlikely.
Maddy echoed the same sentiments.
“We’ve all got tired of fighting the system,” she said. “We can’t just avoid the problem and think that it’s not going to affect us … because we could run into him.”
Maddy is not a UVic student at this time. But she still worries about seeing him in the community. She has changed her appearance and moved houses out of fear.
Holly feels like leaving UVic is her only option if she wants to avoid him. So far, Holly has been able to structure her classes so that he isn’t in any of them.
Without many options for recourse through UVic, Holly and Maddy have turned their attention towards the criminal justice system.
For Maddy, the experience of having the charges on her case dropped is still a raw memory.
Maddy went to the police to allege that she was sexually assaulted by the same man who Holly alleges abused her. Unlike Holly, Maddy had more physical evidence on her side in the form of a rape kit.
However, Crown Counsel has declined twice to press charges on her case, meaning that they will not be moving forward with criminal charges. Essentially, the case was dropped.
In B.C., the police do not determine whether a particular sexual assault case goes to court. That decision is made by the Crown assigned to any given file. The Crown Counsel will then run the case through a two-question test: Is there a substantial likelihood of conviction? Is there public interest in proceeding with this case? Proceeding on public interest alone is rare. So if the Crown feels like there isn’t enough in that file to win in court, they are unlikely to take on the case.
It can be difficult to determine how prevalent sexual assaults are because they are often not reported to the police: Statistics Canada found that only five per cent of sexual assaults are reported. But even when they are reported, convictions can be rare.
A Statistics Canada report looked at police-reported sexual assaults in Canada from 2009 to 2014. Of cases that were reported to police, 41 per cent resulted in a criminal charge.
Some cases don’t make it past a police investigation at all. Sometimes, this is because the police believe no crime has been committed. In 2017, the Globe and Mail studied some of these “unfounded” cases to show how they affect Canada’s crime statistics.
While this isn’t what happened to Holly or Maddy, including unfounded data shows they aren’t alone in their experience is of having no charges laid after filing a sexual assault report. The Globe used more recent Statistics Canada data which stated that 44 per cent of cases resulted in a charge. When they factored in cases deemed unfounded to this data, that number dropped to 34 per cent.
This isn’t necessarily due to false reports. Estimates cited by the Globe suggest that false reports comprise between two and eight per cent of assaults reported to the police.
A more recent Statistics Canada report found that percentages of cases deemed unfounded dropped after the Globe’s investigation. But this didn’t equate to a rise in convictions. Instead, the report insinuated that more cases are being classified as founded by police. In other words, not as many cases are getting dismissed as unfounded, but more are going unsolved.
For Holly, the word “unfounded” is unfamiliar. The police never said it to her, as far as she remembers. Holly says the police have been helpful, caring, and acted in a very trauma-informed way when she approached them about her case.
Saanich PD provided the Martlet with their data on sexual assault cases in 2021. From the start of the year until Nov. 25, 63 sexual assaults were reported to Saanich PD. Of those 63, 16 (25 per cent) resulted in a suspect being charged. For the remaining 47 cases, Saanich PD recommended charges for four cases that the Crown declined, 15 remain under investigation or without an identified suspect, and 28 had insufficient evidence to proceed. Sometimes an investigation may be deemed as having insufficient evidence to proceed if a survivor comes forward and then later decides not to proceed with a criminal investigation.
“While we believe the accounts of survivors reporting sexualized violence, it can [often be] difficult to form grounds to recommend a criminal charge,” a media representative for Saanich PD said.
#MeToo and the law
Elizabete Costa practices criminal law in Victoria. Before shifting to private practice, she spent 17 years as Crown Counsel for the government. She has a particular interest in sexual harassment and the #MeToo movement and takes on clients in both the civil and criminal side of this area of law.
One of the key questions in a sexual assault case is whether consent was established. Under Canadian law, a person cannot consent to sexual acts while unconscious or being physically harmed — both of which Holly alleges she experienced.
Holly and Maddy’s stories seem to have all the markers of a strong case: Maddy completed a rape kit, there is some photographic evidence of bruising, and multiple women have come forward against the same alleged perpetrator. The Crown decided not to pursue charges in both Maddy’s and Holly’s cases.
When Crown Counsel is considering whether to take on a given case, they will weigh all the evidence they have from the police. During this process, they can consider evidence that is inadmissible in court but might help them gauge whether taking on the case has a substantial likelihood of conviction. Although someone’s sexual history or previous text messages aren’t admissible in court, they can lead the crown to question a person’s credibility.
In most sexual assault cases, there also isn’t a lot of evidence. The victim says they were assaulted and the defendant may argue, via their lawyer, that they had consent.
“You’re coming down to a credibility battle,” Costa said. “The crown is also supposed to be concerned with the presumption of innocence of the person they’re charging or not charging.”
Costa also cautions her clients to not discuss the details of their cases with other survivors. In the #MeToo era, sharing stories of sexual assault has become more common. Sharing these stories can also be a source of support for survivors. In the eyes of the law, however, it can hurt their cases because the Crown or defense could assume that survivors’ stories have influenced each other. This is known as contamination of evidence.
“In terms of discussing details with each other, all that is going to do is weaken each person’s story,” Costa says. “It dilutes the strength of each person’s claim.”
With the police and EQHR, Holly and Maddy were both told to encourage more people to come forward. This strength in numbers can be beneficial, but it can also be harmful because the Crown may have seen them discussing the details of their cases as contaminating evidence.
After the Crown has decided not to take a case, survivors have a few options. Costa says they can commence a civil suit for damages, ask police to meet with the Crown, or ask for the case to be re-evaluated by a different Crown.
Maddy and Holly were able to meet with the Crown Counsel assigned to Maddy’s case after it was struck down. Maddy remembers being told that previous text messages may have led the man she alleges assaulted her to think that he had consent. Under a new change to the criminal code, evidence about past sexual history is not admissable. But things like this can still lead the Crown to decide not to take a particular case forward.
Holly and Maddy have had their lives altered since August 2020. Both of them reported to EQHR and the police and encouraged other women to do the same. So far, this hasn’t led to any criminal charges or discipline from the university.
At the time of writing, Holly and Maddy think there won’t be any ramifications or punishment from the university as a result of their allegations.
“The gist I got from everything with EQHR was that they really don’t have any power,” Holly said.
In EQHR’s latest annual report, it shows how many people come forward with allegations of sexualized violence at UVic.
From May 2018 to August 2019, 57 people disclosed an incident to EQHR. These incidents ranged from sexual looks and inappropriate jokes to non-consensual sexual acts. 79 per cent of the survivors were students and the remaining 20 per cent were staff and faculty. 89 per cent of the survivors identified as females.
37 per cent of the disclosures were found to be outside of EQHR’s jurisdiction.
This means that of those 57, 35 cases were in their jurisdiction and 21 were not. Before an investigation can begin, a report has to be made. Only 10 cases moved forward to this step, with five resulting in completed investigations. Of the other five cases that were reported but not investigated, one was ended early on the request of the survivor and the other four finished with a community accountability process that all parties agreed on.
Maddy says she has become disillusioned with the systems that she once believed could support survivors.
“He is just going to school … and acting like nothing has happened when he has ruined all of our lives.”
*Editor’s note on anonymity: Holly and Maddy’s names have been changed to protect their identities, out of concern for their safety, and due to the personal and traumatic nature of this story. The decision to not change their genders was intentional — the vast majority of survivors of sexual assault are women.
The man that allegedly assaulted Holly and Maddy is also left unnamed in this article. The decision to not name him was made in consultation with Holly and Maddy. To our knowledge, the man in question has not been charged or been found to have breached the university’s sexualized violence policy. As journalists, we have to be cautious of the risks we take on when publishing information that may damage a person’s reputation and has not been proven in court. This is, in part, due to defamation law and the growing amount of cases against journalists and survivors associated with articles about sexualized violence in the #MeToo era.