Simple Questions with Complicated Answers Part 6: How can a PSI apply conditions or restrictions to someone they haven’t even investigated?

Written by: Deborah Eerkes

Q: How can a PSI apply conditions or restrictions to someone they haven’t even investigated?

A: Repeat after me: Reasonable concern calls for reasonable action. (A special thank you to Dr. André Costopoulos for making this our mantra in the Office of the Dean of Students at the University of Alberta.)

Often called interim measures, or the even better emerging term immediate measures, these conditions or restrictions are not sanctions that require an investigation and finding of policy violation. Rather, they are applied to a respondent when you receive a disclosure with reasonably credible information that 1) if true, would constitute a policy violation, and 2) gives rise to a reasonable concern about the negative impact that person may have on the discloser or the learning/working environment.

Immediate measures are also distinct from accommodations - otherwise known as modifications, adjustments, or considerations - which are more typically provided to a survivor, on request and with their consent. Immediate measures will only ever be applied to the respondent. They may have a number of purposes, including to:

Ensure the discloser’s safety or the safety of the learning/working environment
Remove or reduce any barriers to the learning/working environment the discloser is experiencing as a result of the behaviour
Discourage or prevent retaliation
Prevent further harm, and/or
Protect the integrity of an investigation where a complaint has been initiated

To be clear, immediate measures should never be applied with the purpose of holding someone accountable or punishing bad behaviour. That’s what sanctions or discipline are intended to do, and that requires an investigation and finding of responsibility for a policy violation. Immediate measures are precautionary, not disciplinary. They can not create a disciplinary record, nor can they be interpreted as evidence that a person has committed misconduct. In addition, they should:

Only constrain or inhibit an individual’s privileges, not their rights.
Be based on the needs of the person harmed and their right to a campus environment free from harassment or violence.
Have a rational connection to the objective. If the problem is unwanted sexually-charged text messages, make the solution something that addresses that problem, such as a no-contact order.
Be creative. Don’t rely on a static set of measures or previous cases. Each situation is unique, involves different people, and needs solutions that address the specific problem.
Be flexible, taking into account both the effectiveness and the impact of the measures on the respondent. Be prepared to adjust the measures as circumstances change.
Have a time limit, either when they will expire (e.g. at the conclusion of an investigation or at the end of an academic term) or a date by which you will review them to ensure they are still necessary and meeting their purpose. Then either revise, revoke or renew them as circumstances require.
Be minimally restrictive to meet the goal. In other words, they have to be reasonable, justifiable and relevant to the circumstances.

Fortunately, many respondents need only to be alerted to the effect of their behaviour on others in order to agree to voluntary measures. Where you have to apply (involuntary) immediate measures to a respondent, even though they do not affect the respondent’s rights, they do require a minimal level of procedural fairness. Recall that basic procedural fairness means a person affected by a decision has a right to know who has made allegations, the nature of the conduct alleged, and to have an impartial decision-maker.

There may be times where immediate measures will have unintended consequences for a respondent. Where, for example, safety concerns demand that a student respondent be removed from campus, it is possible to mitigate the consequences to ensure that the measures are not disciplinary, or unnecessarily punitive, by finding a way for a student to continue with their classes in an alternative format. In the case of an employee, it almost certainly means leave with pay. But consider going a step further, and put in place supports and resources for any respondent to be able to successfully comply with the measures and change their behaviour in the future. Where possible, make the measures conducive to receiving therapeutic support or establish a circle of support and accountability (COSA) adapted for the campus context.

There will be a very small number of cases in which, no matter how much support you provide, the respondent will not comply with the measures. Be ready with a plan to address the breaches in a justifiable and proportionate way. Where the breach increases your safety concern, you might adjust the measures to be more restrictive. Where it appears to be wilful misconduct, you might initiate a disciplinary process.

Thoughtful and intentional immediate measures are an excellent, survivor-driven tool. We know that most survivors choose not to use the campus complaint processes for many reasons: they want to avoid what could be a gruelling process; they don’t want to subject the person who harmed them to discipline; they are afraid of negative social consequences or retaliation; they don’t regard the conduct as serious enough; or they are holding onto self-blaming myths. Regardless of their reasons, it is reasonable to believe that all survivors want the behaviour to stop and/or not to be repeated, and they want to feel safe as they go about their campus activities. Immediate measures have the potential to meet those objectives without requiring a complaint.

As always, we don’t want to lose track of the possibility that there may be trauma involved in these situations. A trauma-informed approach includes:

Clear and ongoing communication with the parties, including regular check-ins and a designated contact person in case circumstances change.
Careful expectation management, especially when a survivor comes with prior trauma and may be reacting to a context broader than just the conduct at hand. The goals of the measures should always be clearly articulated and address the specific alleged conduct.
Communicating the measures to both parties in writing, using plain language.
Not reading too much into or making assumptions about a party’s behaviour when discussing the matter with you. Trauma can suppress or intensify emotional reactions.
Voice, choice and agency for the survivor through discussions about their needs and what measures may meet those needs, helping them to understand the limitations you may face.

Like any campus complaint process, immediate measures are confidential and, with only a few exceptions, can only be disclosed for the purpose of administering the measures, in which case you communicate only the specific information necessary and only to those with a legitimate need to know. A trauma-informed approach also means making it clear to the parties that the institution will undertake this communication, and will be responsible for addressing any non-compliance so that the survivor doesn’t feel like the burden of holding the respondent accountable rests with them.

You can read more about procedurally fair, trauma-informed interim measures to reduce harm in Chapter 8, Section 3 of the Comprehensive Guide to Campus GBV Complaints on the Courage to Act Knowledge Centre, or watch our Deep Dive webinar on interim measures.

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Suggested Reference : Eerkes, D. (2022, December). Simple Questions with Complicated Answers Part 6: How Can a PSI Apply Conditions or Restrictions to Someone They Haven’t Even Investigated? Courage to Act. www.couragetoact.ca/blog/simple-questions-6.