When universities silence those they are supposed to protect.

Nina Russell, News Editor

As soon as she heard the allegations, University of Windsor Law professor Julie Macfarlane felt as though she had to speak up. In 2013, Macfarlane learned of a fellow professor who had allegedly pursued predatory relationships with certain groups of students while alienating others. Yet, it wasn’t until early 2015 that the professor was terminated from his position at the university.

Over the course of the 15-month investigation, which Macfarlane called “absolutely abhorrent,” the university convinced all parties involved to sign a non-disclosure agreement (NDA), which ensured that the conditions of the accused professor’s termination would be kept private. Macfarlane, who was aware of the allegations and the conditions of her colleague’s termination, but was not herself privy to the investigation, would not know that those involved signed an NDA until several months later, when she began to hear about the accused professor’s job applications to other universities from colleagues who wondered about the forms.

“[Other universities] were very puzzled about this paperwork that he had, which is typical of an NDA,” Macfarlane said in an interview with The McGill Tribune. “It basically said, ‘I had a tenured position at the University of Windsor with the Faculty of Law, but I just up and left,’ because that's what the NDA does. It doesn't give any reasons [for his leaving], and people were suspicious of this.”

Macfarlane described the circumstances of the former professor’s termination to her colleagues, and revealed the allegations of sexual misconduct against him. And when he was hired by a law school in Trinidad, she was contacted by his new employers who wondered why he had been fired. It took some time before Macfarlane next heard from her former colleague.

“What happened next [in 2017], was that the former faculty member sued me personally for defamation,” Macfarlane said.

Macfarlane is still locked in a legal battle with her former colleague, who has not issued public comment on the matter. The University of Windsor, which has proof of the conditions of the professor’s termination, holds the key to Macfarlane’s acquittal.

“They have the documentation that shows that he was, in fact, terminated for misconduct, but they are refusing to [show] it,” Macfarlane said. “They are hiding behind me, and it's really shocking. Because what it implies is that anybody like me, who's [a] professor, who gets asked about somebody who was accused of sexual misconduct and is given an NDA, is susceptible to being personally sued.”

Both NDAs and defamation lawsuits in response to sexual assault allegations have gained attention as a mechanism for silencing victims in the #MeToo era. On May 29, the state of New Jersey banned the use of NDAs in workplace contracts, while Arizona, Washington, and California have passed bills limiting their power in sexual assault cases.

However, Canada still seems to be waiting for its own reckoning. Macfarlane’s is only one of four ongoing cases of university professors suing their accusers for defamation after accusations of sexual assault. These cases commonly make use of NDAs to help protect both the reputation of the university and professors involved. The others, at Yukon College, the University of British Columbia (UBC) , and McGill have remained in deadlock since the lawsuits were initially filed, leaving accusers and their supporters in legal limbo.

The most high-profile of these cases is that of Steven Galloway at UBC. In 2015, Galloway was suspended without pay after sexual misconduct allegations were made against him. Months later, he was fired, provoking backlash from a number of prominent Canadian literary figures. Margaret Atwood and Michael Ondaatje, among others, signed an open letter arguing that Galloway had not received due process. Galloway later admitted to an extramarital affair with one of his students, though he maintained that it was consensual, and his case was eventually dismissed by a B.C. judge. During the summer of 2018, he was awarded $167, 000 from UBC in arbitration, based on the claim that firing him had ruined his reputation.

“You come out of it having received a judgement that you didn’t do these things, and that is still not good enough,” Galloway said in an interview with Macleans. “There is no possibility of innocence.”

As part of his monetary award, he is not allowed to discuss the details of the arbitration.

In October of 2018, Galloway sued 24 former colleagues and students for defamation, one of whom was named solely because of a tweet she had posted accusing Galloway of rape.

Mandi Gray, one of the defendants named in the lawsuit, is a doctoral student and activist at York University. She says that the suit in which she is involved is still in its very early stages, and it is another example of the growing trend of defamation lawsuits in sexual assault cases.

“It’s very much about controlling the narrative,” Mandi said. “I don’t think anything I said was defamatory. I think [the lawsuit] was more [...] about punishment.”

Around the same time that Galloway filed his lawsuit, a student at Yukon College published a Facebook post accusing criminology professor Charles Stuart of sexual misconduct, though the post did not mention him by name. Even after his firing, Stuart insists that his encounter with the student was consensual, and he has since filed a lawsuit seeking damages for defamation against the student.

In most of these cases, allegations proceeded through formal university mechanisms before being brought to court. However, Mandi believes that universities are often more interested in protecting their own reputation than achieving justice. Universities commonly use NDAs as a mechanism for avoiding having to answer to the public, as they prevent allegations from leaving the small circle of those involved.

“[Desire to protect] reputation [and] branding of the university far exceeds, from what I’ve seen, the actual desire to protect students and university community members,” Mandi said.

Things are no different at McGill. In July 2018, Ahmed Ibrahim, a professor in the Islamic Studies department at McGill, sued Sarah Abdelshamy, a student, and Pasha Khan, a teaching assistant, for $600, 000 in damages for defamation after allegations were made that he had engaged in a relationship with a student from 2014 to 2017. Ibrahim claims that the two defendants have since become involved in an ongoing effort to have him terminated.

After months of protest led to the revision of McGill’s sexual violence policy , there is still no blanket ban on professor-student relationships. Instead, these relationships are regulated by a separate document, titled “Regulation on Conflict of Interest ,” which only bans them if the staff member has supervisory or evaluatory responsibility over the student. During the revision process, Angela Campbell, Associate Provost (Equity and Academic Policies), argued that a total ban would constitute an illegal violation of individual freedoms, based on the findings of a working group at Concordia University.

Julius Grey, a prominent human rights and constitutional lawyer at the Montreal firm Grey and Casgrain and former Students’ Society of McGill University president, is representing Ibrahim in his suit against Khan and Abdelshamy. Julius, who sparked controversy at Concordia in February for defending Ibrahim when he spoke at a panel discussion on sexual violence, is an outspoken sceptic of the #MeToo movement.

While Julius is generally wary of defamation suits, he worries that the #MeToo movement has threatened the accused’s right to due process. He disagreed with Mandi’s claim that an increase in defamation suits will lead to a decrease in the number of students reporting. He said that in order for a defamation lawsuit to be successful, the claim must be “intentionally false or in bad faith”—defamation cannot be proved solely through the acquittal of the accused.

“In the case where there is a deliberate and malevolent accusation—and that does happen—there must exist a remedy for the accused,” Julius wrote in an email to the Tribune. “This should not be a disincentive to any honest person wishing to file a complaint and one hopes that legitimate complaints will not be deterred.”

With regard to NDAs, Julius cited their frequency in civil suits of all kinds.

“It is part of our custom that if you settle, you have to agree to silence,” Julius wrote. “It is also clear that in sexual matters, both parties might want anonymity for various reasons—privacy, fear of being sued, fear of discipline, etc.”

However, the chorus of voices advocating against NDAs is growing louder. In addition to Macfarlane and Mandi, who advocate against the silencing of survivors through NDAs, defamation lawsuits, and unnavigable reporting procedures, more and more women are beginning to speak out despite the constraints they face. Connor Spencer, the national chair for Students For Consent Culture Canada, agreed with Macfarlane and Mandi that this is just the start.

“In Canada, it's just that we haven't had conversations about [NDAs],” Spencer said. “I would argue that it's still very fresh. So I think the advantage of post secondary institutions [is that they] have a lot of student leaders and student activists. And so now that we [are having these conversations], we're able to actually flesh out what they mean.”

While these cases refer specifically to sexual assault allegations against professors, reporting fellow students is often equally as isolating to the victim. According to an Australian survey, one in five university students reported experiencing some form of sexual harassment during their time in university. LGBTQ+ students were also more likely than their heterosexual counterparts to report sexual assault. In the general population, up to 83 per cent of assaults go unreported.

Spencer added that she would like to see an increase in institutional courage, referring to the idea that institutions, such as universities, should challenge norms surrounding sexual violence that preserve reputation above all else.

“The entire culture around complaints, complaint systems, harassment, assault, [and] violence on campus is largely mitigated by this conversation around legal responsibility, rather than [the] moral responsibility of the institution,” Spencer said. “And so what we really need to be doing is pushing this cultural shift toward the moral responsibility of the institution, which is namely to make sure harm does not befall its employees or students, which, arguably, many institutions across the country are failing at right now.”

When institutions fail to exhibit courage, victims are often left with a sense of ‘institutional betrayal,’ a term coined by University of Oregon professor Jennifer Freyd for when institutions fail to protect those who are dependent on them. This often adds to the trauma that survivors have already experienced, and it leaves other survivors without the confidence that the university has their best interests at heart when they come forward with their own allegations.

A 2014 study at the University of Kentucky found that undergraduates who had experienced sexual assault during their first semester were more likely to leave with lower GPAs at the end of the semester compared to their counterparts who had not experienced sexual assault.

This may be a result of the strain and stress of reporting. Even those who are found to be guilty are not severely punished. Mandi says that reporting processes are often so complex that students will either end up dropping their complaint or dropping out of university entirely.

“A lot of the folks who I’ve talked to said [the university] just made it so impossible,” Mandi said. “So they just [drop] the complaint, drop out of university, [and] transfer [to a new] university, or they graduate, so there’s never any resolution.”

According to Mandi and Spencer, it is common for students who report sexual misconduct to universities to feel as though their well-being is not prioritized by university administrations. However, Campbell pointed to the resources that McGill offers for survivors of sexual misconduct and stated that, in the case of lawsuits, decisions are made on a case-by-case basis.

“McGill is committed to supporting survivors in all cases and does so primarily through the Office for Sexual Violence Response, Support and Education,” Campbell wrote in an email to the Tribune. “The University would not typically represent a student who is the subject of a lawsuit by another member of the University community, although such determinations are made case by case.”

While defendants are still waiting for their lawsuits to progress, increasing activism and awareness around NDAs and their implications for survivors gives Spencer optimism.

“Grassroots mobilization needs to be the face [of our activism], but it can't be the only tool in our toolbox,” Spencer said. “There are also things like lawsuits, education, and direct action that we can be using. And we need to use all of them in order to actually engage different parts of the community, and specifically the McGill community.”

A previous version of this article incorrectly stated that Macfarlane reached out to her former colleague's new employers. In fact, the new employers reached out to Macfarlane for more information. The Tribune regrets this error.