When the UBC Investigations Office (the “UBC IO”) receives a report of sexual misconduct (a “Report”) under Policy SC17: Sexual Misconduct (“Sexual Misconduct Policy” or “Policy”), the Director of Investigations (“DOI”) must first determine whether or not UBC has the jurisdiction to investigate.
Q:What is “jurisdiction”
Within the context of the Sexual Misconduct Policy, “jurisdiction” means the scope of UBC’s authority to investigate Reports under this Policy.
Q:When will the UBC IO have the Jurisdiction to Investigate?
UBC will conduct an investigation where the allegations contained in a Report fall within the scope of UBC’s authority to Investigate Reports under the Policy.
UBC’s Jurisdiction to Investigate is determined by the Director of Investigations and is limited by the following:
(1)the allegations must be against an individual who was a Member of the UBC Community at the time of the alleged Sexual Misconduct and at the time the Report is submitted;
(2)the alleged conduct must fall within the definition of Sexual Misconduct; and
(3) the alleged conduct must have occurred in a context that has a real and substantial connection to UBC. Whether a real and substantial connection to UBC exists will be considered on the particular circumstances of each Report.
The Director of Investigations may decline to investigate a Report on the grounds that proceedings would be unfair and result in substantial prejudice to any person due to passage of time, availability of witnesses or evidence, or where proceeding with the complaint is otherwise not practicable.
Q:Who is a “Member of the UBC Community”?
Under the Sexual Misconduct Policy, “Members of the UBC Community” are:
- students, defined as any person, including co-op and exchange students, registered or enrolled in any component of a for-credit academic or training program or course at UBC, or any class of learners designated by resolution of the Senate as students; registrant, defined as any person registered in non-credit educational activities at UBC;
- employees, defined as individuals employed by UBC, including faculty and staff members; emeriti, volunteers engaged in a UBC activity, or other individuals acting on behalf of UBC;
- Teaching Staff Members;
- any individual active on any UBC committee or review panel;
- post-doctoral fellows; and
- anyone contractually obligated to comply with this Policy.
Q:What falls under the definitions of Sexual Misconduct?
The Sexual Misconduct Policy defines “Sexual Misconduct” as any sexual act or act targeting an individual’s sexuality, gender identity or gender expression, whether the act is physical or psychological in nature, that is committed, threatened or attempted against an individual without that individual’s consent.
The following list sets out examples of Sexual Misconduct. The list is not exhaustive and other acts can still be considered Sexual Misconduct under the Policy even if they do not appear in the list below. Sexual Misconduct includes, but is not limited to, the following:
(a) sexual assault;
(b) sexual harassment;
(d) indecent exposure;
(e) voyeurism; and
(f) the distribution of a sexually explicit photograph or recording of an individual to one or more individuals other than the individual in the photograph or recording without the consent of the individual in the photograph or recording.
Q:What kind of allegations of Sexual Misconduct have a “real and substantial connection” to UBC?
UBC takes a principled approach to the question of jurisdiction, with the Sexual Misconduct Policy governing conduct to the extent necessary to protect the integrity and proper functioning of the academic and non-academic activities of the University, the peaceful and safe enjoyment of the University facilities by other members of the University and the public, and the ability of members of the University to participate reasonably in the programs of the University and in activities in or on the University’s premises.
It is also a practical approach in that UBC’s ability to obtain relevant information about incidents that do not have a real and substantial connection to UBC is very limited.
Many factors need to be considered when determining whether a sufficiently strong connection exists between the alleged Sexual Misconduct and UBC such that there is a “real and substantial connection to UBC”, and it is not possible to set out in advance an exhaustive list of all relevant factors that will be considered to determine whether a real and substantial connection to UBC exists. Some factors to be considered in determining whether there is a real and substantial connection to UBC include:
- An incident’s association to UBC and whether the incident impacts UBC’s goal to provide a safe space to live, work and study. Those considerations may include the location of the alleged Sexual Misconduct and whether the alleged conduct occurs in the context of UBC activities.
o For example, if the alleged incident occurred in the context of UBC activities (such as a program’s field trip or an athletic event) that would increase the connection between the alleged conduct and UBC.
o Similarly, if the alleged incident occurred on UBC’s campus that would increase the connection between the alleged conduct and UBC.
o If it happened at a location that is not operated by UBC, it would reduce the connection but there may still be other factors surrounding the alleged incident that would result in a real and substantial connection being found to exist.
- The status of the individuals involved (e.g. are they currently students, is the individual who is alleged to have been subjected to the Sexual Misconduct a member of the UBC community);
- The context of the alleged Sexual Misconduct;
- Whether the alleged conduct could have a significant negative impact on the learning environment relationships;
- Whether the alleged conduct could adversely affect or significantly undermine the confidence of UBC Community Members; and
- Whether UBC has taken jurisdiction over similar allegations of Sexual Misconduct in the past.
None of these circumstances are necessarily determinant on their own. Whether the alleged Sexual Misconduct has a real and substantial connection to UBC is a fact-specific enquiry. All factors must be considered and weighed appropriately by the DOI on a case-by-case basis.
Q:If the DOI determines that there is no jurisdiction to investigate, can the individual directly subjected to the Sexual Misconduct appeal the decision?
The Sexual Misconduct Policy does not include the ability to appeal a decision that determines there is no jurisdiction to investigate. The individual directly subjected to the Sexual Misconduct may pursue processes external to UBC, such as reporting the matter to the police or initiating a civil action against the individual against whom the allegations have been made.
Q:Can the UBC IO investigate a Report made against a member of the Alma Mater Society, Graduate Student Society or UBC Students’ Union Okanagan?
The Alma Mater Society (“AMS”), Graduate Student Society (“GSS”) and UBC Students’ Union Okanagan (“UBCSUO”) are all entities separate and distinct from UBC. The UBC IO does not have the jurisdiction to investigate Reports made against members of these organizations solely on the basis that the individual is a member of that organization; for the UBC IO to have jurisdiction, the individual must fall within one of the categories of a “Member of the UBC Community”. This means that the UBC IO does not have the jurisdiction to investigate an AMS staff member, for example, who is not also a Member of the UBC Community, such as a UBC student, faculty or staff. Each organization has its own bylaws and/or policies governing its members and for addressing allegations of sexual misconduct involving its members.
For more information:
- see the AMS Sexual Violence Policy and Respectful Community and Workplace Policy or contact the AMS directly;
- see the Graduate Student Society Policy Manual or contact the GSS directly; or
- see the UBC Students’ Union Okanagan Regulations or contact the UBCSUO directly.