Chapter VI: Policies and Protocols
Policies and protocols represent important tools for the prevention and early identification of sexual misconduct, and for protecting those already victimized by such misconduct. For example, a school board policy on how complaints of sexual abuse should be acted upon that is clear, fair and known to all is likely to help protect children, ensure fairness to the affected teacher, provide assurance to the community and enhance the school environment. The absence of such a policy often produces uneven or inappropriate treatment of students and teachers, unnecessary uncertainty, speculation, gossip and innuendo, heightened trauma to the interested parties, particularly children and, overall, a process that is seen to be arbitrary and unfair.
Existing school board policies and protocols across the province respecting sexual misconduct by teachers are varied. A number of school boards have skeletal or no related policies in place. Some boards are in the process of developing policies. Some school boards, particularly small boards, revealed that they lacked the resources to develop extensive policies. By way of contrast, some boards have obviously put considerable time and effort into policy development. These boards have protocols in place that address, sometimes in exemplary fashion, some of the issues raised in the Report. However, few boards have a comprehensive and complete set of policies.
While local circumstances and resources justify some differences in policies and protocols, basic school board policies across the province are fragmented and uneven. School boards often act in isolation and have had limited opportunity to share or draw upon the experiences of other boards. There is an absence of direction at the provincial level, which has contributed to a somewhat unsatisfactory state of affairs in some school districts.
Existing school board policies often demonstrate deficiencies. Some important topics are not dealt with adequately or at all. For example, a number of school boards have policies on student misbehaviour but no policies on teacher misbehaviour. A sizable number of boards acknowledged that they have no protocols on how to deal with complaints or disclosures of teacher sexual misconduct. A comparison of school board protocols demonstrates significant differences in their interpretations of legislation that has province-wide application. Some of these differences result in significantly divergent practices regarding the duty to report sexual abuse, to inform the suspected teacher and to investigate alleged abuse internally. Some policies need to be updated, in any event, to reflect recent amendments to the Child and Family Services Act.
Having identified significant deficiencies and inconsistencies in existing policies and protocols, the Report makes recommendations for change. These are contained in recommendations 49 to 101. The components of suggested policies and protocols are also summarized in a detailed checklist, with supporting commentary, which follows Chapter VI. Only highlights of these extensive recommendations are contained in this Executive Summary.
The finest policies and protocols are less likely to be created or, if created, adhered to fully by individual school boards unless there is a recognition that sexual misconduct by teachers is a concern worth addressing. Some school boards believe that sexual misconduct by school employees is not an issue in their jurisdiction and that they need not worry about it. These boards expressed the belief that it does not occur in their schools and, should it occur, they would recognize it immediately.
Unfortunately, communities cannot be inoculated against the problem of sexual misconduct by remoteness, social class, size or religious beliefs. A complacent "it can't happen here" attitude might make undetected abuse almost inevitable. Such an attitude can colour how sexual misconduct complaints are viewed and evaluated and, thereby, place students at greater risk. Placing students at risk is particularly likely if such attitudes prevent or inhibit the development of preventative measures and protocols to address suspected cases. Often, boards with more extensive policies and protocols, such as the Huron-Superior Catholic District School Board, have already experienced high profile abuse cases involving their staff. Such cases focus attention on the problem and the need to address it.
Recommendations 49 to 51 suggest that all school boards in Ontario should establish, and promote adherence to, policies and protocols pertaining to sexual misconduct by teachers, other staff and volunteers. Given the shared responsibility and necessary interaction between school boards, children's aid societies and police for the reporting and investigation of sexual abuse, protocols should also be developed cooperatively between school boards, local police forces, and children's aid societies. Finally, all policies and protocols should be regularly reviewed and updated to reflect changes to existing laws or to accommodate improvements which flow from the implementation of these policies.
Through survey responses and consultation with school boards and other stakeholders, the review identified problem areas that school boards need to address in developing policies and protocols regarding sexual misconduct. Though the stakeholders sometimes had very different views on how these areas should be addressed, the following represent the most prominent problem areas that were identified: defining boundaries of behaviour; screening of applicants for teaching positions; hiring practices, including reference checks with past employers; responding to complaints; reporting suspected misconduct; duties to students as complainants; documenting complaints or suspicions; disclosure to the Ontario College of Teachers; and resignations of teachers.
To address these and other issues, the Report identifies both prevention strategies, which are designed to reduce the likelihood that sexual misconduct will occur or re-occur, and intervention strategies which are designed to encourage disclosures of true sexual misconduct, and the responses to complaints or suspicions of sexual misconduct that best protect students, while treating suspected teachers fairly. Of course, prevention and intervention strategies often overlap.
Prevention strategies are twofold: (i) education and training on what constitutes sexual misconduct and how it can be identified and prevented; and (ii) ensuring, so far as possible, that sexual perpetrators do not enter the profession and that, when discovered, they are not permitted to continue to teach or move from school to school. This strategy involves adherence to policies and protocols that ensure that new teachers or those seeking to transfer to another school, are fully screened. It requires prospective employers to have access to accurate and complete information about the applicant. Both strategies are enhanced by clear and unequivocal policy statements that reflect no tolerance for sexual misconduct and that define the boundaries of acceptable behaviour.
(ii) Education and training
To combat sexual misconduct effectively, education and training needs to be directed to (i) prospective teachers; (ii) current teachers, volunteers and other school staff; and (iii) students and parents. Recommendations 52 to 60 address education and training and include the following:
- students at faculties of education should be fully educated on sexual misconduct policies and protocols and on their professional and ethical duties
- teachers, principals, vice-principals and other school staff and certain designated volunteers should receive ongoing in-service training on sexual misconduct policies and protocols and on their professional and ethical duties;
- topics of education should include: board policies and protocols regarding sexual misconduct; what constitutes sexual misconduct; boundaries between acceptable and unacceptable interaction with students; recognition of the early warning signs of sexual misconduct; issues surrounding student disclosure of sexual misconduct; protecting a student from further potential harm; documenting disclosures; duty to report sexual abuse under the Child and Family Services Act and the duty to protect students from other forms of sexual misconduct; the procedures that follow initial disclosure, including those applicable to a teacher suspected of misconduct; the avoidance of stereotypical notions about sexual misconduct, its perpetrators and its victims;
- students in elementary and secondary schools should receive age-appropriate education on sexual misconduct;
- strategies should be developed to make information and education regarding sexual misconduct available to parents.
(iii) Screening of Teaching Applicants and Reference Checks
Adequate screening of potential employees represents an important strategy for preventing sexual misconduct. A criminal record check, while one component of an effective screening strategy, is not sufficient. The most meaningful screening process entails a detailed application form, a thorough interviewing process, and verification, including reference checks that involve a full and candid exchange between the prospective and former employers. Recommendations 62 to 69 all address the screening of teachers and include these features to be incorporated into school board policies and protocols:
- a criminal and disciplinary record check should be performed with respect to every applicant for a teaching position, and other staff positions that involve exposure to children;
- the screening process for these applicants should generally entail a detailed application form, in-depth personal interviews, and verification of references through direct contact with the references;
- no offer of employment should be made by a school board until a full investigation has been conducted;
- volunteers who are endowed with exceptional levels of trust involving frequent, lengthy and unsupervised contact with students should be screened in a manner consistent with their voluntary status.
These recommendations also detail the kinds of inquiries that should be made through the application form, interviews with the applicant and through direct contact with references to address concerns about sexual misconduct.
(iv) Codes of Conduct
In Chapter IV, the Report earlier recommended that codes of conduct for teachers, other school staff and volunteers be included in school board policies and protocols. These codes of conduct should incorporate the minimum standards of conduct that apply across Ontario (and as may be reflected in the College's Code of Ethics), but may impose higher standards of conduct to address local concerns and circumstances. In Chapter VI, recommendations 70 and 71 specify what such codes of conduct should state, together with commentary and examples for inclusion in school board policies.
Intervention Strategies: Responding to Complaints or Suspicions
(i) Receiving a Sexual Misconduct Complaint
The Report recognizes that the emotional impact of sexual misconduct may depend in large measure on how the complaint is first received. Because school boards cannot control how, when, and to whom students make such disclosure, they must ensure that all board employees are prepared to respond appropriately upon receiving disclosure of alleged sexual misconduct. Recommendations 72 and 73 suggest that all board employees receive training on how to detect the warning signs of sexual misconduct and, further, how to respond to disclosures of sexual misconduct. The Report recommends that school board policies contain "dos and don'ts" to guide employees in such situations.
(ii) Reporting Sexual Abuse, Harassment and Other Misconduct
School board policies and protocols should define the reporting obligations of staff and volunteers. Recommendations 74 to 81 specify what policies and protocols should state, together with commentary for inclusion in such policies. Important distinctions are drawn between the reporting of sexual abuse and other sexual misconduct or inappropriate behaviour that can be addressed informally. Distinctions are also drawn based upon the age of the student involved. Policies must also provide for a "reporting chain" within the board to ensure that the appropriate officials are informed of complaints. Recommendation 80 specifically states that section 18(1)(b) of the regulation under the Teaching Profession Act has no application to reports of sexual misconduct. Recommendation 81 suggests that policies should specifically protect anyone from threats or reprisals for disclosing, reporting or otherwise providing information with respect to alleged sexual misconduct.
Students who disclose sexual abuse have immediate needs, while awaiting formal investigation by a children's aid society and/or the police. Recommendation 77 outlines some of these needs that should be addressed by school boards in their own policies and through joint protocols with police and children's aid societies. These include if, how and when the student's parents should be contacted.
(iii) Reporting to the College of Teachers
Chapter IV earlier recommended an amendment to the Ontario College of Teachers Act, 1996 to better address the obligations of school boards to disclose suspected sexual misconduct of teachers to the College. Whether or not these amendments are made, school boards are entitled to create protocols that impose a higher obligation upon themselves, consistent with the protection of their students and the public interest. The Report recommends protocols that articulate disclosure obligations consistent with the boards' responsibility for student safety. Recommendations 82 to 83 address these issues.
(iv) Investigating Allegations of Sexual Misconduct
Any investigation of sexual abuse will be conducted by the police and/or the local children's aid society. These investigations should be governed by joint protocols between police, children's aid societies and school boards. School board investigations may be conducted into sexual misconduct or other unacceptable behaviour unrelated to abuse which need not be reported to the children's aid society or to the police. As well, school boards will generally need to evaluate how to proceed after the children's aid society or the police have declined to conduct an investigation, have completed an investigation or after criminal proceedings have taken place.
The desirability of minimizing the number of instances where victims of sexual misconduct should be obliged to testify or recount their own victimization should figure prominently in the development of protocols on how allegations of sexual misconduct are to be investigated and by whom. Such protocols should minimize the number of times that an alleged victim is required to be interviewed by the various agencies involved before criminal or administrative proceedings are commenced. This objective is best achieved by inter-agency cooperation from the earliest stages of the investigation.
School boards should recognize that the police and children's aid societies, jointly, are better equipped to investigate alleged sexual abuse. An outside investigation also protects a school board from allegations of bias. However, where allegations do not raise concerns of sexual abuse, and a board is obligated to conduct its own investigation, it should again adopt a strategy designed to reduce the number of times an alleged victim is interviewed. Any internal investigation should be conducted by school staff with appropriate training and skills.
Recommendations 84 to 86 suggest, in some detail, the components of school board and interagency protocols on investigating sexual misconduct.
(v) Duties to Students as Complainants: Support Structures
School boards must recognize the tremendous vulnerability of students who disclose sexual misconduct by a teacher or other person in authority. Recommendations 87 to 91 are designed to ensure that school board policies specifically provide for support structures for students who disclose sexual misconduct. These structures contemplate support persons for student complainants, the availability of ongoing counselling and therapy, the designation of school board employees to facilitate support for students and express recognition that a student who has reported sexual misconduct must not be required, other than as may be necessary in legal proceedings, to confront the suspected or accused person directly.
(vi) Actions Respecting the Suspected Employee or Volunteer
Practices vary between school boards on how employees are dealt with, pending internal or external investigations or legal proceedings. School board policies should specifically address the actions to be taken, pending a determination whether sexual misconduct has occurred. Recommendations 92 to 95 address these issues. Where a formal investigation of sexual abuse or harassment is to occur, school employees or volunteers should generally be removed from the classroom pending a determination whether sexual misconduct has occurred. This protects both students and teachers. A range of options, including suspension or re-assignment to non-classroom duties can be addressed.
An acquittal in criminal proceedings does not preclude subsequent disciplinary proceedings. This reflects the higher standard of proof in criminal cases and the fact that non-criminal behaviour may nonetheless constitute sexual misconduct. However, misunderstandings as to the meaning and effect of acquittals persist. Recommendation 95 addresses this issue.
(vii) Communications Subsequent to Disclosure
Where school staff have been accused of sexual misconduct, particularly abuse of multiple students, other students , school staff, parents and the community may be deeply shaken. As well, speculation, gossip and innuendo may circulate, adversely affecting both the students and school staff directly involved. Effective communication can avoid or reduce the adverse effects upon the school and its community and promote fairness to all parties. A communication plan, such as that suggested in recommendation 96, avoids or reduces the adverse effects upon the school and its community and promotes fairness to all parties. The plan should address the privacy rights of all affected parties, the need for factual accuracy, fairness to all parties, and the desirability of affirming or supporting students who disclose sexual misconduct while maintaining the presumption of innocence.
Barriers to full disclosure
The evidence presented to the review established that certain barriers may prevent prospective employers from obtaining full and accurate information from employment references:
(a) material facts have never been documented or documentation has not been retained;
(b) the former employer perceives, incorrectly, that privacy legislation prevents disclosure of material facts; or
(c) the former employer was a party to a settlement with the teacher that compels non-disclosure or limited disclosure of material facts to a prospective employer.
Recommendations 97 to 98 address the making and retention of records pertaining to complaints of sexual misconduct committed by school employees and volunteers. Measures are suggested to ensure that the confidentiality interests of students or informants are preserved, to the fullest extent possible. The destruction of documentation is specifically addressed in recommendation 97.4.
While the Report does not embark on an exhaustive analysis of the relevant privacy legislation, it concludes, contrary to what some believe, that the Ontario or Municipal Freedom of Information and Privacy Acts do not apply to or limit the disclosure of, information contained in a teacher's personnel file to another school or school board considering the teacher's application for employment. (Otherwise, a legislative amendment is called for.) Full disclosure is precisely what is contemplated by reference checks. Misleading disclosure or non-disclosure of material information about the teacher entirely undermines the verification process and potentially places students at risk.
The review received extensive evidence about settlements negotiated between school boards and teachers' unions to resolve sexual misconduct cases. A teacher may agree to resign, and the board may agree to provide a neutral letter of reference or to not disclose the allegations that brought about the teacher's resignation. While the benefits of such an agreement to the parties involved are apparent, such agreements seriously undermine the ability of another school board to protect its students from sexual misconduct through adequate screening procedures. Recommendation 98 suggests that no resignation of a school employee should be secured by agreement not to disclose facts relating to allegations of sexual misconduct to a prospective employer. Distinctions are drawn between unfounded allegations and unsubstantiated or unproven allegations.
Financial and Other Resources
Many of the recommendations contained in the Report have financial implications. Many interested parties, particularly school boards, made their financial concerns known during the review. In large part, these concerns form part of the very public debate over the adequacy of public funds allocated by the provincial government to education. While a determination of that issue it is well beyond the scope of the review's mandate, the Report emphasizes that the safety of our children must be one of Ontario's highest priorities.
It is the Government of Ontario which bears the responsibility of ensuring that financial and other resources are available to achieve the important objectives of protecting our children and ensuring a school environment free from violence, abuse, harassment, and discrimination. Recommendations 61 and 99 specifically address the need for adequate financial resources.
How to Develop Policies and Protocols on Sexual Misconduct
This Report is designed to facilitate the development of new or modified policies on sexual misconduct by school employees and volunteers. Chapter VI ends with an extensive checklist of topics that should or might be addressed in such policies. Brief commentary is provided to many of these topics. Recommendations 100 and 101 suggest that the development of school board policies and protocols on sexual misconduct by school employees and volunteers should, at least in part, be informed by this checklist of topics. Further, such policies and protocols should be the subject of periodic review by the Ministry of Education, in cooperation with Ontario school boards.
Some school boards are to be commended for their commitment to addressing the problem of sexual misconduct by school employees and school volunteers. One school board has indicated that its existing policies have been informed by changes in the duty of the board and its employees to detect and report abuse and neglect, by the possibility of stricter civil liability for harm inflicted by employees or volunteers, and by the convening of this review. Hopefully, this Report will motivate other school boards to develop meaningful new policies on sexual misconduct or to significantly revise existing policies.
The recent amendments to the Child and Family Services Act provide further impetus for reform. These amendments will require immediate revisions in policies and procedures and in the training of school staff. As well, it is anticipated that many new teachers will be hired in the next year or two. All of this makes reform timely and important.
School boards should not feel wed to existing policies or protocols. Variations in protocols between different school boards is to be expected. What might be appropriate for Toronto may not be appropriate for rural, northern or smaller communities.
Policies and protocols to identify and prevent sexual misconduct by teachers and others may, and, indeed should, be established within larger initiatives to create a school environment free from violence, abuse, harassment and discrimination. These initiatives could address student-to-student or student-and-teacher activities, as well as a wide range of conduct, including physical abuse and harassment unrelated to sexual misconduct. The integration of policies and protocols on sexual misconduct with other policies can be accomplished in a variety of acceptable ways. Similarly, sexual abuse as well as other sexual misconduct can be addressed in one document or in two. What is important is that all kinds of sexual misconduct be addressed. The development of policies that ignore sexual harassment short of abuse would be misguided.
The process of developing policies is enhanced by close collaboration with many stakeholders. Policy development planning committees or task groups addressing these issues may draw upon trustees, directors of education, superintendents, principals, teachers and their association representatives, school advisory councils, community groups and parents, students, survivors' groups, aboriginal groups and resource centres, police, children's aid societies, legal counsel, experts in child sexual and physical abuse and in the special needs of children with disabilities. The process itself is a valuable one. The partnerships and discussions that will evolve at meetings build consensus and ultimate acceptance of the new policies. Indeed, the recommendations and the checklist attached to this chapter already reflect the views of many stakeholders.