A breakthrough

Student fought 10-year battle for justice after sexual assault

Stephanie Hale felt like she kept hitting dead ends.

After having experienced what she describes as the worst night of her life in 2013, the first-year engineering student at the University of British Columbia Okanagan (UBCO) told a residence adviser that she recently had a traumatic experience and hoped security could conduct wellness checks on her due to her history of self-harm. He said he was a “little uncomfortable” with the request and needed to check with his supervisor, she said.

When she spoke to a counsellor, she says they told her they couldn’t “wave a magic wand” to change what happened in the past and advised Hale to file a police report. She added it would also be a conflict of interest to see Hale because of a client she was already counselling — Hale’s alleged rapist, who she was still attending classes with.

The Star’s policy is not to identify victims of sex assault, but Hale said she wanted her name used.

She asked for help obtaining an exemption from classes to avoid running into him, but says she was told she would have to approach her professors directly and explain the situation.

It was a while before she went back for help. By this point, she had no faith in the institution or the people who were supposed to help her.

“I knew what had happened was wrong,” she said. “And it was really just that simple in my own mind — why couldn’t UBC get that?”

Hale did report the sexual assault to police, but her experience there was no better. She said they dismissed the case as a “he-said, shesaid” due a lack of evidence, despite her still having visible bruises on her thighs weeks after the incident, she said.

Hale’s experience at UBCO would ultimately push her to embark on a 10 year battle for justice and recognition for what she endured. In late August, the B.C. Human Rights Tribunal ordered that the university award Hale $65,000 in damages, lost wages and expenses for failing to properly respond to her sexualassault complaint.

The ruling

Among their findings is that there was no clear mechanism for Hale to report the assault, that the investigation by campus security was incomplete and that the university failed to ensure she had a safe and non-discriminatory environment to return to — or in this instance, ensuring that she was able to return to classes without seeing her alleged rapist.

“The process for addressing the assault was unclear and confusing. The information given to Ms. Hale was incomplete, at times inaccurate, and she was required to undertake significant effort on her own to obtain much of it. This was not reasonable,” the decision reads.

Most notably, the university’s process for handling breaches to its code of conduct — called the Non-Academic Misconduct Process — failed to consider the victim, but was focused on proving the accused’s innocence or guilt.

The problem with that process is it often fails to centre the testimony of the complainant, treats them only as a witness and doesn’t consider the key issues from their point of view or experience.

“UBCO’s response to Ms. Hale’s report of sexual assault amounted to secondary victimization … By treating her as an outsider with minimal information and support, the (process) exacerbated the impacts of the assault and worsened Ms. Hale’s disabilities,” it added.

At one point, the university argued the case should be dismissed and argued they weren’t liable for the alleged assault or its fallout because it happened in a dorm room, which they didn’t consider school property. The tribunal rejected that argument.

The ruling notes that after Hale told multiple university officials that she had been raped, it took three years for UBCO to inform her of the complaint process.

The long, drawn-out process took a further toll on Hale’s mental health. The tribunal decision notes how the stress of the process retriggered Hale’s PTSD and caused her to experience nightmares, panic attacks, dissociation and vomiting. She eventually slipped back into self-harm, as she had feared.

“It used to just destroy me whenever they would do something to put me down, or silence me, or send an email just not answering my questions or just not even respond to me,” Hale said, adding that her experience with UBCO through the tribunal experience showed it was one more area they weren’t taking her seriously.

“Trying to do that in the legal arena where I’ve never done that dance before, and they’ve clearly done this dance many times, it was really hard to stay ahead of them,” she added.

UBCO created a new Sexual Misconduct Policy in 2017 after the province introduced legislation requiring all post-secondary institutions to do so.

In a statement to the Star, UBCO said their new policy established three new offices to address sexual violence on campuses to provide resources and support for people who have experienced sexual or gender-based violence. They added their investigators are trained in a trauma-informed approach.

The university is reviewing the tribunal’s ruling to determine their next steps, they said.

“UBCO treats allegations of sexual misconduct and supports for survivors very seriously and has taken a number of crucial steps since 2017 to provide prevention services, support to survivors and an investigative framework to address allegations of sexual misconduct,” they said.

The precedent

Legal experts say the decision is a major win for sexual-assault survivors that sets a new precedent for damages paid by post-secondary institutions for responding inappropriately to complaints of sexual misconduct.

Clea Parfitt, Hale’s lawyer, said the ruling exposes a major flaw in how sexual-misconduct allegations are handled, not only in post-secondary institutions but also most workplaces; allegations are investigated using a disciplinary model concerned with determining if the accused is innocent or guilty, but fails to properly consider the impact of that process on the complainant.

The Human Rights Tribunal’s ruling is very clearly a repudiation of that approach, Parfitt said.

“It says it in a very clear way how you respond to these matters can itself be a form of discrimination … In other words, their failure to deal with it effectively itself created enormous harm rippling outwards,” Parfitt said.

“This is extremely consequential for not only probably every university in the country, but also many, many service providers and employers who all rely on an investigative process that’s fundamentally a disciplinary process about the person whose actions are in question,” she added.

Mandi Gray, an advocate, sociologist and author of “Suing for Silence: Sexual Violence and Defamation Law,” said the ruling could serve as a useful tool for the next person who is forced to go through the process and puts the onus on institutions to treat survivors as more than just witnesses.

“I think that’s what’s important — there is legal precedent now that is telling universities to take this seriously,” Gray said.

The case is also notable because she believes it’s the first time a sexual-assault complainant in Canada has refused a settlement from a post-secondary institution, went public and won.

“To the best of my knowledge, there’s been no public decision of campus sexual violence in a Human Rights Tribunal in Canada,” Gray said.

The ruling further stands out because there is “enormous pressure” on complainants to settle, said Joanna Birenbaum, a Toronto-based lawyer and leading expert on gender-based violence.

“The time and emotional, psychological and legal resources to litigate a case to conclusion can be enormous. While the impact of the decision may be invisible to the public, it could have a significant effect on access to justice for complainants who file claims. In other words, this award should increase the dollar value of settlements in these cases,” she said.

Hale’s case was specific to how UBCO handled her complaint from 2016 onward. But there are others who say their inappropriate response and failure to act on disclosures of sexual misconduct is part of a long-standing pattern.

Glynnis Kirchmeier, a graduate student at UBCO from 2011 to 2013, is spearheading a case that contends there is a track record of UBCO not taking complaints about sexual misconduct seriously, especially when the report comes from a witness rather than the victim.

In 2014, Kirchmeier said she notified university staff after witnessing a male individual sexually harassing other students. But because she wasn’t the person who got harassed, she says her report was dismissed.

“Watching someone commit sexual harassment, and then being told you have no standing to report that, you basically don’t have an interest and this isn’t a safety issue — That was utterly demoralizing and angering,” Kirchmeier said.

She said she later learned the individual she witnessed behaving inappropriately would go on to assault other women and was eventually expelled for his conduct.

Kirchmeier is being represented by Parfitt, who is also Hale’s lawyer. She said one of the primary issues that motivated her to launch this lawsuit on behalf of others was “the baseline assumption that the complainants have no rights or interest in the process.”

In both Kirchmeier and Hale’s cases, they argued the university failed them because they didn’t feel they had a safe environment to return to after making their complaint. The case is ongoing and expected to resume in December. None of the allegations have been proven before the tribunal.

“We’re really trying to get a sense of how broad the harm is when the university doesn’t do the right thing,” Parfitt said. “When that doesn’t happen, the harm actually is to everyone in an environment, not just to the person who is directly impacted.”

A blueprint for addressing gender-based violence

One of the tribunal’s key points is the importance of trauma-informed policies when addressing reports of sexual misconduct, said Anoodth Naushan, project director of Courage To Act, a national project that has created blueprint recommendations for preventing and addressing gender-based violence on campuses.

“Survivors always tell us about how navigating this process can be so re-traumatizing, and at times, perhaps even worse than the actual violence they were subjected to,” Naushan said.

For Hale, the ruling provides some level of validation in that it creates a public record of what she went through. She also hopes it sends a message to other post-secondary institutions, but is not sure if it will be the impetus for systemic change.

“In terms of like the bigger picture, it might be cynical of me to say, I can’t see that yet,” she said.

She characterized the $65,000 in damages as a “drop in the bucket” for UBCO, but said she hopes the public reprimand will have a ripple effect.

Hale is now in her second year of a joint civil engineering technology diploma/degree at a different school. She’s most glad she can focus on her studies now, as well as her mental health.

“I am no longer in a place where I feel like I need to prove my own worth to exist,” Hale said.

She’s looking forward to closing a chapter that has consumed her entire adult life — the alleged assault happened when she was 18. She’ll be 30 next year.

“I haven’t met a version of myself as an adult that hasn’t been dealing with this,” Hale said. “And I’m really excited to do that.”