Simple Questions with Complicated Answers Part 9

Written by: Deborah Eerkes

Q: We should have zero tolerance for sexual violence - why can’t we just automatically expel or fire those who do it?

A: Zero tolerance policies typically include commitments both to address every single incident of sexual violence (SV) and to meet them with the most severe form of discipline. For post-secondary institutions (PSIs), that means termination or expulsion. I have never been a proponent of zero tolerance policies for a number of reasons:

Most sexual violence is not reported
According to a 2020 study, only 8% of women and 6% of men who experienced sexual assault, and 9% of women and 4% of men who had experienced unwanted sexualized behaviours, disclosed their experience to someone associated with support services or administration at their institution. (Note that this study did not include other genders.)
Not all SV warrants the highest forms of punishment
Campus SV policies include a wide range of prohibited conduct, including verbal, online and physical behaviours. The inclusion of so-called ‘lower level’ forms of SV is a preventative measure, aiming to address SV before it escalates to its most extreme. Especially in post-secondary environments, educational responses can be far more appropriate; the most severe discipline would be unreasonable in those cases.
Punitive action is rarely preventative
Punishing individual acts does not prevent SV. In many cases, it is a response to something that happened in the past, and does nothing to change the conditions in which the SV occurred or prevent SV in the future. Additionally, confidential campus processes cannot function to set an example for others.
In fact, treating members of our communities as disposable, even when they’ve caused harm, perpetuates resentment and cements harmful attitudes around SV. Even when a PSI has removed a person who has caused harm to make its own community safer (and sometimes they need to do that!), that person is still in the world, potentially now filled with frustration or resentment at being removed from what is likely a significant part of their life.
PSI processes should be survivor-centered
Zero tolerance is not, in any sense of the term, survivor-driven or survivor-centered. Instead, it requires all survivors to enter a potentially humiliating and retraumatizing process of investigation and hearing(s).
Discipline doesn’t always feel like justice
Not all survivors are seeking to have the person who harmed them disciplined at all, least of all with the most severe form of punishment. For some, justice takes the form of an acknowledgement of the harm they experienced, or behavioural change, education, or some of the other benefits associated with a restorative process. Zero tolerance policies do not meet any of these needs.
Zero tolerance policies decrease disclosures
Where survivors are seeking something other than the usual disciplinary response - and let me emphasize that this is the case most of the time - zero tolerance policies create a significant barrier to reporting. The objective might be to eradicate SV; however, the reality is that if PSI systems designed to respond to GBV do not encourage and support survivors in coming forward, GBV will continue unaddressed. In other words, zero tolerance policies do the opposite of what they are intended to do, and ultimately allow SV to continue unchecked. PSIs should be doing everything they can to remove barriers to coming forward, not erecting new ones.
Procedural fairness demands discretion, not automatic outcomes
The most severe sanctions require the highest level of procedural fairness, that is, those measures that arise from the right to be heard and the right to an impartial decision-maker. It also requires that outcomes be reasonable, proportionate and commensurate with the act and the harm caused. Automatic removal from the institution for SV policy violations fetters the discretion of decision-makers and increases the risk of appeals, grievances and judicial review.
Zero tolerance policies are based on the premise that SV is an individual issue
This is the “bad apple” theory: you restore the safety and harmony of the community by removing the person who did harm. If this actually worked, we would have solved the problem of campus SV decades ago. Like broader society, our campuses are steeped in attitudes, myths and misconceptions that tolerate or perpetuate SV. Oppressive systems - like racism, misogyny, sexism, ableism, colonialism, and heterosexism - lay the foundation for SV and continue to exist despite removing a person who caused harm.

If not that, then what?

I’ve spent significant time making the case that zero-tolerance policies are not helpful. So how can PSIs take SV seriously, and be seen to be doing so? Applying sanctions is often seen as a way to hold an individual accountable for their actions, but it is far from the only way. In fact, an individual can face serious sanctions or outcomes without ever admitting or taking responsibility for what they did. PSIs can begin to broaden their view of accountability to acknowledge the complexity of the issue, and work toward eradicating some of the root causes.

Interpersonal accountability

Instead of individual punishment, PSI processes should make space for true accountability, for taking responsibility for one’s actions, taking steps to change one’s behaviour, make amends wherever possible, and make positive contributions to the community as an ally with a newfound understanding of GBV. I will not claim that every person who caused harm will do this, but current complaint processes tend to force respondents into defensive mode which, by its nature, is not conducive to restorative or other community-based forms of accountability. The risks are simply too high for an individual to be able to admit and acknowledge the harm they caused, and that is often what a survivor needs to hear.

Institutional accountability

Many survivors report their experiences with the stated aim of ensuring that no one else will have to experience what they went through, in other words, they want prevention as a response, something discipline cannot do. Rape culture persists on campuses and beyond, and feeds the environment that permits SV/GBV. Institutional policies, procedures and protocols tend to rely on the simplest fixes and rarely include the kind of nuanced and comprehensive approach that prevents future GBV. In addition, overpromising (making an institutional commitment to eradicate SV) and under-delivering (which is inevitable when the commitment is unrealistic) can lead to institutional betrayal. By shining light onto the educational environment and the elements within it that may be contributing to the problem, PSIs can take the burden of preventing SV off of the shoulders of survivors. They can do so by assessing both the impact of past SV and the risk factors for future SV.

Corrective action

To borrow a term from occupational health and safety, a PSI should view SGBV as a hazard to psychological and social safety on campus and commit to corrective action. In some cases, corrective action would focus on an individual’s behaviour and require performance management, course correction, or discipline. More importantly, though, corrective action can be a broader examination of the social setting and physical environment. Think about this (non-exhaustive) list of potential questions to address a department rife with gossip:

How formal or informal is the teaching relationship?
How comfortable do students/faculty feel in addressing sexist language or humour?
What power structures exist that might make specific populations (e.g. graduate students) more vulnerable to harassment and violence?
Are there physical spaces in which GBV can easily occur undetected?
Do people know where to seek help if a disclosure arises in that department/unit?
Is there racist, sexist or misogynistic graffiti in the area?
How is the institutional policy regarding student/instructor relationships communicated?

Note that this approach does not require the PSI to establish whether or not the rumours are true or put pressure on survivors to come forward with a complaint.This part is important and bears repeating: you don’t have to prove something happened in the past to prevent it from happening in the future.

In addition to correcting individual behaviour, corrective action can take the form of policy change, awareness campaigns, specific training, program implementation and alterations to the physical environment, all with the goal of creating an educational environment that is hostile to - not supportive of - GBV.

The focus on accountability (both interpersonal and institutional) is not a quick fix. In fact, it might very well be more expensive, labour-intensive and time-consuming than the current reliance on complaint processes to address GBV. But it also offers something that investigations and discipline never could: long term improvement and GBV prevention. It may be more difficult in the short run, but ultimately, if it’s done carefully and in a trauma-informed way, promises more humane solutions and greater safety.

To be clear, I do not advocate relegating complaint processes to the dustbin. PSIs will always need tools like that to address recalcitrant individuals; however, if the goal is to prevent GBV, to provide equitable, harassment-free access to the educational environment, to be survivor-centred and trauma-informed, there are far better ways to do so than a zero-tolerance policy.

On a personal note: this is my last instalment of the Simple Questions with Complicated Answers blog series. I want to thank Possibility Seeds for sharing this space with me - it has been a genuine privilege!

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Suggested Reference : Eerkes, D. (2023, April). Simple Questions with Complicated Answers Part 9. Courage to Act. www.couragetoact.ca/blog/simple-questions-9.