Appendix 2: Sexual Assault/Sexual Abuse

List of 7 items.

• Definitions

  Abuse: Under the CYFSA, “abuse” means “a state or condition of being physically harmed, sexually molested or sexually exploited.” For the purposes of these policies, “abuse” also refers to serious psychological maltreatment.
  
  

  Criminal offences under the Criminal Code of Canada: All these offences may be committed by persons of any gender and against victims of any gender.
  
  

  Sexual interference and invitation to touching are both offences which victimize children under 16. Generally, sexual interference involves an adult touching a child (with the adult’s own body or with an object, directly or indirectly) for a sexual purpose. Invitation to touching generally involves an adult inducing a child to touch them. It is no defence that the child purportedly consented to such activity.
  
  

  Sexual exploitation is similar conduct done for a sexual purpose that is committed by a person who is in a position of trust or authority towards a young person. In the Criminal Code, a young person is defined as a person between 16 and 18 years old, but similar conduct involving persons younger than 16 would also be considered sexual exploitation for purposes of these protocols. Again, it is no defence that the young person purportedly consented to the activity.
  
  

  Teachers and other school employees and volunteers will almost inevitably be regarded as being in positions of trust or authority respecting students with whom they interrelate.
  
  

  Indecent act and sexual exposure criminalize indecent acts or the exposure of private parts, even absent any suggested or actual physical contact between the perpetrator and another person.
  
  

  Sexual assault is, in essence, an assault committed in circumstances of a sexual nature such as to violate the sexual integrity of its victim. The determination of whether an assault is committed in circumstances of a sexual nature is objective. A sexual motive, while relevant, is not required. There is no consent where a teacher induces a student to engage in sexual activity by abusing their position of trust, power or authority. There is also no consent where the student submits or does not resist by reason of the exercise of authority by the teacher. Again, where the complainant is a child under 16 years old, it is no defence, in any event, that the child purportedly consented to the activity.
  
  

  Assault is an intentional touching or application of force, done without valid consent and with knowledge, recklessness or wilful blindness as to the victim’s lack of consent. An assault may be committed in circumstances of a sexual nature (see “sexual assault” above) or otherwise (for example, a beating or violent swarming). Assault also includes an attempt or threat, by act or gesture, to apply force to another person, if the perpetrator has, or causes that other person to reasonably believe that they have the present ability to effect their purpose.
  
  

  Sexual misconduct: Sexual misconduct is offensive conduct of a sexual nature which may affect the personal integrity or security of any student or the school environment. Sexual misconduct by teachers, school employees and volunteers includes, but is not limited to:

  • Sexual abuse: Conduct which would amount to sexual interference, an invitation to sexual touching, sexual exploitation, sexual exploitation of a person with a disability, an indecent act or exposure or a sexual assault, or other crime which may affect the sexual integrity of any student or the school environment
  • Sexual relationships: Any sexual relationship with a student or a former student under the age of 18 and any conduct directed to establishing such a relationship. Examples of prohibited conduct are intimate letters from teacher to student; personal telephone calls; sexting or texting; email sent or received on a personal account; sexualized dialogue through the internet; suggestive comments to students; and dating students.

• Principles

  Children have the right to be protected from neglect and abuse. In this context, the term “children” generally refers to those under the age of 18 for whom there are specific statutory reporting obligations. However, students of all ages have the right to be protected from abuse or assault.
  
  

  Addressing child neglect and child abuse is a responsibility shared by many professionals including educators and child protection workers. Child neglect or abuse must be reported forthwith in accordance with the CYFSA. The obligation to report is fully articulated in the School’s Policy on Reporting Abuse and Neglect of Students.
  
  

  The children’s aid societies and/or the police have prime responsibility for the investigation of allegations of child abuse and neglect. This means that any internal investigation will generally be deferred or modified, pending the completion of a related children’s aid or police investigation. The School will work cooperatively with the appropriate children’s aid society and police and will share all information relevant to an investigation, to the extent permitted by law.
  
  

  All members of a family are affected by abuse or assault and will be treated by professionals in a manner that is sensitive to their needs. The investigation will also be conducted in a manner that recognizes that students may be re-victimized by the investigation process itself. Investigations must be child-sensitive and fair to all affected parties, including the alleged perpetrator.
  
  

  Parents and guardians are encouraged to work in partnership with the School to develop and maintain a safe school environment, recognizing that the implementation of these procedures must be an ongoing process involving all partners within the broader educational community.

• Receiving a Complaint and Reporting Procedures

  An initial disclosure of alleged abuse or assault must be first received and responded to appropriately, without minimizing or discounting truthful disclosures. Some basic “dos and don’ts” for receiving a student’s disclosure include the following:

  
  

  Do	Don't
  Listen to the student.	Do not lead or suggest answers to the student.
  Tell the student who must be notified.	Do not promise the student not to tell anyone.
  Reassure the student that the conduct described is not the student’s fault and that the student has done the right thing by disclosing.	Do not criticize the student for how or when disclosure has been made.
  Speak to the student in a private and safe space.	Do not bring the suspected perpetrator in to confront the student.
  Determine the immediate safety needs of the student, involving the student in this decision.	Do not return the student to a risk-laden situation.

• When the Complainant is Under 18 Years of Age

  If the complainant is under 18 years of age, the School will notify the student’s parent or guardian.
  
  

  Where an employee or volunteer of the School has reasonable grounds to suspect that a student under the age of 18 is in need of protection as defined by the CYFSA, they have a duty under that Act to forthwith report those suspicions and the information on which they are based directly to a Children’s Aid Society. A child who is reasonably believed to have suffered sexual assault or abuse, resulting from the actions of a person having charge of the student, is likely to be considered a child in need of protection. The obligation to report to a children’s aid society is fully articulated in the School’s Policy on Reporting Abuse and Neglect of Students.
  
  

  Where a student enrolled at the School is suspected to be a victim of assault or abuse, the Social Worker and Head of School or designate and Executive Director of Crescent Student Services must also be immediately notified. The suspecting person making the report shall document and maintain all details in writing. The report should include identification of the individual(s) involved and a clear factual description of the incident(s) including times, dates, places and names of witnesses, if any.
  
  

  The School will ensure that support structures are in place for students who disclose alleged abuse or assault. These support structures shall include the following:

  • The School will consult with the Children’s Aid Society to determine the appropriateness and timing of informing parents that the student has disclosed alleged abuse or assault.
  • Support persons, such as the School Social Worker, should be permitted to be present during interviews of students with School staff, children’s aid societies, or the police.
  • The School staff member should be available to remain with students who have disclosed abuse until the Children’s Aid Society or police investigators interview these students, if the interviewing is imminent, or if the student is otherwise in need of support.

  A support person may be the school employee or volunteer to whom initial disclosure was made, a designated case coordinator, social worker, student services worker or another person. The support person should generally be an adult person of the student’s choosing.
  
  

  A case coordinator will be designated who will be specially trained and will assist any school employee or volunteer in fulfilling the obligation to report, may be responsible for ensuring that support structures are in place for students, and may act as liaison with the Children’s Aid Society and police. The coordinator will be an individual who is comfortable with the issues involved and who is well acquainted with these procedures and related protocols. The coordinator may be the School Social Worker or another appropriate individual who meets the preceding criteria, with support from the School Social Worker as needed.
  
  

  The School will facilitate access to professional counselling, such as the School Social Worker or referred service, or therapy for students who disclose abuse or assault in the school setting, at the earliest opportunity following disclosure. Counselling or therapy should remain available throughout any investigation and legal process and as required thereafter. In some circumstances, such counselling will extend to family members.
  
  

  Any individual who has reported abuse or assault, whether a School employee, volunteer or student, must not be required, other than as may be necessary in legal proceedings, to confront the suspected or accused person directly.

• When the Alleged Perpetrator is a School Employee or Volunteer

  Where a School employee or volunteer is suspected of conduct which may constitute abuse or assault of a student at the school, an individual making a report to the children’s aid society shall notify the Head of School or manager who supervises the alleged perpetrator or designate of this report. Where the Head of School or manager is suspected of such conduct, the Headmaster shall be notified of the report. Where the Headmaster is suspected of such conduct, the Chair of the Board of Governors shall be notified of the report.
  
  

  The subject matter of a complaint should not be discussed with the alleged perpetrator until specific instructions are received from the investigating police or the children’s aid society. This procedure is designed to secure the safety of any complainant/student or witnesses, to ensure that the rights of the complainant and the alleged perpetrator are protected, and to prevent possible destruction of evidence.
  
  

  Further, an employee who makes an adverse report about another employee respecting suspected physical or sexual abuse or assault of a student by that other employee need not provide them with a copy of the report or any information about the report.
  
  

  The School is obligated to address the interim status of employees and volunteers against whom allegations of abuse or assault have been made, pending a determination as to whether the abuse or assault occurred. In this regard, the paramount consideration must be the safety and security of the alleged victims, particularly where they are students. However, the decision as to interim status must also reflect a consistency of approach, procedural fairness to affected employees and volunteers, recognition that no findings of abuse or assault have been made and sensitivity to the impact of allegations upon the affected employees and volunteers.
  
  

  Generally, where abuse or assault has been alleged against employees or volunteers, those individuals should be removed from the classroom or from situations involving unsupervised access to students, pending determination as to whether abuse or assault occurred. Such an approach demonstrates consistency and ultimately promotes not only the safety and security of the alleged victims but also fairness to the affected employees or volunteers. This decision is to be made by the Headmaster in consultation with People and Culture who may seek advice from the police/ legal counsel and/or the Children’s Aid Society in this regard. Removal is mandated when the School becomes aware that an employee has been charged with or convicted of an offence under the Criminal Code involving sexual conduct and minors, or of any other offence under the Criminal Code that in the opinion of the School indicates that students may be at risk.
  
  

  Depending on the circumstances, removal may involve reassignment to other duties, suspension, or in some circumstances, immediate termination.
  
  

  An employee or volunteer’s reassignment or employment status should generally be revisited upon completion of any police or Children’s Aid investigation after any criminal charges are laid, after any criminal case is completed, and upon completion of any internal investigation.
  
  

  Alleged victims and alleged perpetrators are entitled to have the allegations addressed as discreetly as circumstances permit and, where information pertaining to the allegations is disseminated, the status of the allegations as allegations only should be articulated.
  
  

  Where abuse or assault is alleged, it should be investigated by the police, together with the Children’s Aid Society if the allegations fall within the society’s mandate. Generally, any internal investigation should be deferred pending the conclusion of any ongoing or contemplated police investigation or resolution of any criminal charges. All instances of sexual assault, physical assault, and criminal harassment require police notification. Threats and other incidents may be reported to police on a discretionary basis, depending on the circumstances.
  
  

  Once any investigation by police or the Children’s Aid Society is complete, the School will conduct an internal investigation or may choose to retain an independent third party to conduct the investigation if appropriate in the circumstances.
  
  

  This decision will be made at the discretion of the Headmaster. The investigation will proceed as follows:

  • The investigator should meet with the complainant. During the course of this interview, the investigator should listen carefully, ask specific questions to elicit details, find out about the nature of the relationship with the alleged perpetrator (the “respondent”), ask about witnesses, and ask what the complainant would like to have happen.
  • The investigator should meet with the respondent. The respondent should be told the identity of the complainant and presented with the facts. The respondent should be asked for a specific response to each allegation, including the nature of the relationship, and whether there were any witnesses. The investigator should remain neutral and reserve judgment until all facts have been collected.
  • The investigator should interview each witness mentioned by the parties. These witnesses should be interviewed separately. The investigator should determine whether these individuals were actually present at the time of the alleged behaviour, or whether they simply heard about the incident afterwards. Each witness should be informed of the importance of confidentiality.

  Based on the information received, the School, in consultation with legal counsel, should determine whether or not the incident warrants disciplinary, remedial, or other steps. The seriousness of the incident must be determined and appropriate action taken.
  
  Any internal investigation conducted by the School and any resulting disciplinary proceedings should be informed by the desirability of:

  • Avoiding or reducing trauma to the student through unnecessary or inappropriate questioning;
  • Respecting the confidentiality and privacy interests of all affected parties, to the extent possible;
  • Ensuring fairness to the School employee or volunteer against whom a complaint has been made;
  • Ensuring an accurate and objective determination, free from stereotypical notions about sexual misconduct;
  • students or teachers.

  Where practicable, any internal investigation should be conducted by individuals with appropriate training and skills respecting abuse cases and, where applicable, sexual abuse or assault cases. An outside investigator may be retained to conduct such an investigation, at the School’s discretion.
  
  

  A criminal conviction or finding of guilt will justify disciplinary action, up to and including termination for cause. The same outcome may also result following an internal investigation even where there is no criminal conviction, since criminal charges involve a different onus of proof and different rules of admissibility.
  
  

  The School shall promptly notify the Ontario College of Teachers in writing when it becomes aware that a member who is or has been employed by the School:

  • has been charged with or convicted of an offence under the Criminal Code involving sexual conduct and minors; or
  • has been charged with or convicted of an offence under the Criminal Code that in the School’s opinion indicates that students may be at risk of harm or injury; or
  • has resigned or terminated their employment with the School, during an investigation into allegations that the member engaged in physical or sexual abuse or assault.

  The School shall promptly notify the Ontario College of Teachers in writing and no later than 30 days from when it has dismissed, suspended or imposed restrictions on a member in its employ for engaging in abuse or assault, and provide the reasons for such action.
  
  

  The School shall promptly notify the Ontario College of Teachers in writing where, in the opinion of the School, the conduct or actions of a member who is or has been employed by the School, should be reviewed by a committee of the Ontario College of Teachers. One example of such conduct is that which, if proven, amounts to offensive conduct of a sexual nature that may affect the personal integrity or security of any student or the school environment.

  Where a current or former employee or volunteer is not a member of the Ontario College of Teachers, the School shall promptly notify any applicable licensing body in writing of the circumstances set out above.

• When the Alleged Victim is 18 Years of Age or Over

  The CYFSA defines “child” as a person under the age of 18 years. Nonetheless, students of all ages have the right to be protected from abuse and assault. the School retains the obligation to endeavour to prevent such conduct from occurring or reoccurring.
  
  

  Where an employee or volunteer of the School has reasonable grounds to suspect that a student 18 years of age or over has suffered or is at risk of likely suffering sexual assault or abuse, resulting from the actions of a person having charge of the student, they shall forthwith report those suspicions and the information on which they are based directly to the police.
  
  

  Such employees or volunteers should also notify the person who supervises the alleged perpetrator or designate of this report. Where the Head of School or manager is suspected of such conduct, the Headmaster shall be notified of the report. Where the Headmaster is suspected of such conduct, the Chair of the Board of Governors shall be notified of the report.
  
  

  Given the age of the complainant/student, after a report has been made to the police, the parents should not be notified of the complaint or allegations unless specific consent has been obtained from the student. Even where consent has been obtained from the student, where practicable, school personnel should consult with the police before informing parents that a report has been made. Otherwise, the procedures set out above generally apply, with appropriate modification to reflect the age of the complainant and the involvement of police, rather than the Children’s Aid Society.
  
  

  If the alleged perpetrator has access to children under 18 years of age, the statutory reporting obligation to a Children’s Aid Society will also be triggered regardless of the fact that the particular student suspected to have been abused is 18 years of age or over.

• When the Alleged Perpetrator is a Student

  The Young Offenders Act and Criminal Code of Canada contemplate that a young person may be prosecuted for offences committed after they have attained the age of 12 years. This means that, in some circumstances, a student may be criminally responsible for sexual abuse, assault, or related offences.
  
  

  Where a student is alleged to have sexually abused or assaulted another student, the procedures outlined above for reporting to a children’s aid society and/or the police apply with appropriate modification.
  
  

  If the alleged perpetrator is under 18 years of age, the School will notify the student’s parent or guardian.
  
  

  The Head of School and Headmaster will review the available information to determine whether the student who is alleged to have abused or assaulted another student may remain in school pending investigation of the matter. Advice from the Children’s Aid Society and/or police/legal counsel may be sought in this regard.
  
  

  A decision to permit the student to remain in school may be made if it is determined by the Headmaster after consultation with the Head of School and affected parties, that the student’s continued presence in the school is unlikely to be detrimental to the physical or mental well-being of the alleged victims or witnesses or other students and the student’s continued presence is in their best interests. Reasonable conditions may be imposed upon the student to permit their continued presence.
  
  

  Where a student is charged with the sexual abuse or assault of another student, the Headmaster and Head of School, after consultation with the police and the children’s aid society, will immediately remove the alleged offender from the school until the investigation is completed or the charge has been disposed of or a decision is made by the School. Upon the conclusion of the matter, the placement of the student will be determined by the Headmaster and Head of School. It is important that issues of confidentiality be addressed in such cases, as in all cases of allegations of abuse, to protect the rights of all involved to a fair and impartial investigation and determination of the allegations.