Just as good teachers always try to apply what they learn to their daily teaching, the province’s teaching profession is trying to apply what has been learned from recent high-profile cases of sexual misconduct to the collective understanding and practices of Ontario educators.
On February 8th, representatives from a broad range of stakeholders – teachers’ federations, principals, directors of education, parent groups, chiefs of police, children’s aid societies and others – met in the Council chamber to discuss proposals by the College for far-reaching changes to laws and regulations regarding professional conduct and the safety of children in schools. The changes are designed to provide teachers with greater clarity and better processes for dealing with sexual misconduct by colleagues.
One case in particular helped to highlight needed changes. The provincial government appointed retired judge Sydney L. Robins to conduct a review of sexual misconduct in the teaching profession following the criminal conviction of former Sault Ste. Marie teacher Ken DeLuca for sexually assaulting 13 female students over a 21-year period from the late 1970s to the early 1990s.
Robins was asked to examine this specific case and "make recommendations regarding protocols, policies and procedures to effectively identify and prevent sexual assault, harassment, and violence." His final report, called Protecting Our Students: A review to identify and prevent sexual misconduct in Ontario schools, was published in April 2000. The executive summary and recommendations of the Robins report are available online at www.attorneygeneral.jus.gov.on.ca/html/robins/robinsrvw.htm .
The review resulted in 101 recommendations for the government of Ontario, school boards, the Ontario College of Teachers, the judiciary and the federal government. Thirty-six of these relate directly to the College’s duty to regulate the teaching profession and address discipline issues, and seven more relate to the College’s responsibility for accrediting teacher education programs.
Since it was published, six committees of the College Council have examined various aspects of the report and its recommendations. The College has conducted wide-ranging research that included obtaining legal opinions about how the recommendations would impact the rights of a member of the College facing a disciplinary hearing.
PROBLEM IS REAL
Robins writes, "While we do not have precise statistics on the extent of teacher sexual misconduct, a review of the reported criminal cases, the disciplinary and labour arbitration board decisions and media accounts makes it abundantly clear that a significant number of teachers have engaged in sexual misconduct in one form or another. Moreover, it can be concluded beyond question that many other incidents of teacher sexual misconduct have occurred."
Since 1997, the College’s Discipline Committee has completed hearings on a total of 59 cases of professional misconduct. Forty-two of these have involved sexual misconduct with students.
College Registrar Joe Atkinson says, "We are long past the point of debating whether or not sexual misconduct by teachers is a real problem. It is not endemic, but it is real.
"Sexual misconduct in any part of society is unacceptable and is all the more unacceptable in a profession that is in such a unique position of trust. No profession is immune, and we, as teachers, must do everything we can to prevent and eradicate this behaviour. We’re going to work with our provincial and local partners to make changes and ensure our kids are safe at school."
The Robins report proposes four general ways to identify and prevent sexual misconduct in our schools:
1. Create a clearer, broader definition of sexual misconduct to spell out what is prohibited and to ensure some types of sexual abuse are not trivialized.
2. Create clearer policies, protocols and procedures for teachers, school boards, children’s aid societies, police services and the College of Teachers. When teachers suspect sexual misconduct is occurring, they need to know how to respond and whom to notify.
3. Educate the public and professionals about the phenomenon. This includes identifying potential warning signs of sexual misconduct in schools, such as "grooming" behaviour by sexual predators. This would also include dispelling "speculative myths, stereotypes and generalized assumptions" about sexual misconduct. These misconceptions can block proper understanding and impede a prompt response by teachers and other authorities.
4. Accommodate and support vulnerable witnesses during investigations and disciplinary hearings. This means creating a climate in which victims are not afraid to disclose misconduct. This must be done in a way that respects the right of the accused to due process and a fair hearing.
EMPHASIS ON CONDUCT
Currently, the College’s definition of professional misconduct includes "Abusing a student physically, sexually, verbally, psychologically or emotionally." This definition is found in the Professional Misconduct Regulation 437/97, made under the Ontario College of Teachers Act. This is the only specific reference to sexual misconduct in the College’s act, regulations or bylaws.
Professional misconduct also includes "Failing to comply with the member’s duty under the Child and Family Services Act" (CFSA). This law makes it an offence to abuse a child, or to permit a child to suffer abuse by failing to care and provide for or supervise and protect them adequately. For the purposes of the CFSA, "abuse" is defined as "a state or condition of being physically harmed, sexually molested or sexually exploited."
Robins is concerned that the term "sexual abuse" is not clear enough. For example, some people may wrongly interpret it to include only intrusive, physical contact. He also believes this term places emphasis, inappropriately, on the impact of harmful activity on the victim, rather than on the conduct of the perpetrator. Robins wants it made clear that some conduct is unacceptable, regardless of whether the victim bears evidence of physical or emotional scars.
Teachers hold a position of public trust and moral authority over students, unlike a private relationship between adults. This means some conduct between a teacher and a student is prohibited because it breaches this public trust. Robins believes the obligation of a teacher to maintain a higher standard of conduct than other citizens must be spelled out in a broader, clearer definition of professional misconduct.
Professional misconduct for members of the College would explicitly include the concept "sexual misconduct." He proposes to define it as "offensive conduct of a sexual nature which may affect the personal integrity or security of any student or the school environment." Robins adds that sexual misconduct would include, but not be limited to, three concepts.
"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 personal integrity or security of any student or the school environment.
"Sexual harassment"– objectionable comments or conduct of a sexual nature that may affect a student’s personal integrity or security or the school environment. These may not be overtly sexual but nonetheless demean or cause personal embarrassment to a student, based upon a student’s gender.
"Sexual relationships"– any sexual relationship with a student, or with a former student under the age of 18, and any conduct directed to establishing such a relationship.
Robins constructed these definitions by referring to existing laws and considering the specific context of the teaching profession.
The definition of sexual abuse, for example, is based on the existing Criminal Code. It applies to a teacher’s own students, other students or children, or even to adults whether students or not, if the behaviour may affect the personal integrity or security of any student or the school environment.
Robins provides the following examples: touching a student for sexual gratification; inviting a student to touch the teacher for sexual gratification; a sexual relationship with a student; exposure of genitals to a student for sexual purposes; any touching of a student that violates that student’s sexual integrity, whether sexually motivated or not.
The concept of sexual harassment is drawn from the existing Ontario Human Rights Code, but goes further when applied to a teacher. In a teacher-student relationship, the question of whether conduct is or is not unwelcome is irrelevant. It is no defence to argue that a student welcomed, "asked for", consented, or failed to object to harassing behaviour. The teacher, not the student, bears responsibility for the teacher’s conduct.
Robins notes that a single event may constitute harassment, and sexual harassment includes reprisals or threatened reprisals for rejecting sexual advances. He provides the following examples: gender-related comments about a student’s physical attributes; unwelcome or gratuitous physical contact; suggestive or offensive remarks or innuendoes about students of a specific sex; propositions of physical intimacy; gender-related verbal abuse, threats or taunting; leering; bragging about sexual prowess; requests for dates or sexual favours; offensive jokes or comments of a sexual nature about a student; displays of sexually offensive pictures, graffiti or other materials; highly personal questions or discussions about sexual activities; rough and vulgar humour or language related to gender; repeated "compliments" regarding a student’s appearance, hair and clothes.
Including the concept of sexual relationship as a form of misconduct addresses the fact that a teacher must respect professional rules, in addition to criminal and civil rules. Robins and many other judicial authorities, including the Supreme Court of Canada, have underlined that a teacher is held to a higher standard of conduct than other members of society. For example, Robins says a teacher’s sexual relationship with a student is professional misconduct:
• even if a student has reached the age of consent
• even if the relationship occurs before or after the school year
• even if the relationship is with a former student who is still under the age of 18.
The prohibition against a sexual relationship between teacher and student includes "any conduct directed to establishing such a relationship." For example, this would include intimate letters from teacher to student, personal telephone calls, sexualized dialogue through the Internet, suggestive comments in the classroom and dating.
REPORTING AND INVESTIGATING
Teachers, because they have responsibility for the care of children, have additional duties to report child abuse. Every teacher has a specific, statutory duty under the CFSA to report a suspicion of sexual molestation or exploitation to a children’s aid society. The phrase used in the CFSA is "reasonable grounds to suspect."
If a teacher has such grounds, it is not good enough to wait to obtain clear proof of abuse. Stalling or remaining silent is against the law. Failure to act can mean – as it did in the DeLuca and other cases – that other children come to harm.
Robins writes, "The legislation is intended to put the best interests of the child first … putting children’s safety first necessarily means that there will be cases reported to a children’s aid society that ultimately, after investigation, will not warrant criminal or disciplinary proceedings. This is inevitable."
The duty extends to "a director, officer or employee of a corporation who authorizes, permits or concurs in a contravention of an offence." A school board is considered a "corporation" under section 58.5(1) of the Education Act, so school and board officials have the same responsibilities to report under the CFSA and the Ontario College of Teachers Act.
How does a teacher determine if there are reasonable grounds to suspect? What about misconduct that isn’t criminal, or doesn’t breach the CFSA, but still meets the lower threshold for professional misconduct by a teacher? A person with the best of intentions may be unsure how to proceed.
Teachers are not expected to be able to fully duplicate the expertise of the professional investigators of the College of Teachers, children’s aid societies or the police. But Robins confirms that under the law, there is "limited scope for some preliminary evaluation by the school before a report is made" to external authorities.
Robins suggests that the details of how this initial investigation would proceed and who on staff would carry it out will naturally vary from one school board to another. This is because the local context will be different, for example, among boards that are large or small, rural or urban, and which thus have different administrative structures.
If teachers have reasonable grounds to suspect sexual abuse or that a child is in need of protection under other grounds, they are obliged to report that suspicion to the CAS. If they observe suspicious activity by a colleague that could lead to sexual misconduct with students, they have an obligation to alert officials within the school system.
The evidence Robins has gathered makes it clear that teachers and administrators sometimes fail in their legal duty to report warning signs to authorities. One explanation is the ironic and mistaken belief that the Teaching Profession Act (TPA) prevents teachers and administrators from doing so.
ADVERSE REPORT PROVISION
Many teachers believe they are prevented from reporting a colleague suspected of sexual misconduct because of the "adverse report" provision in the TPA. Section 18(1)(b) of the regulation made under the act states that a teacher who files a critical or adverse report on another teacher must promptly provide that colleague a written copy of the report. However, Robins says, "virtually all interested parties agree that the adverse report provision does not or should not apply to reports of suspected sexual misconduct."
To avoid confusion, Robins would like to see the TPA changed to explicitly state this duty does not apply in such instances.
College Registrar Joe Atkinson says, "As teachers, our duties to our colleagues are not intended to take precedence over our duty to the public interest or our duty to ensure children in our care are safe. The legislation and the ethical standards of our profession are clear. If a member of the College suspects sexual misconduct or is aware of such an allegation, that member has a duty to intervene by reporting the suspicion to the appropriate authorities."
A local school board’s policy may impose additional prohibitions on a teacher’s conduct beyond those of the College. For example, the Toronto District School Board’s policy prohibits staff and volunteers from entering into a sexual relationship with a student during the course of the professional relationship or for a period of one year thereafter.
The Robins report, as well as a wide range of literature on the subject of sexual abuse, identifies a common practice of some sexual predators known as "grooming behaviour." This prelude to abuse is intentional, insidious and difficult to detect. It is how some sexual predators identify potential victims, prepare them for exploitation and make them compliant, and reduce children’s ability to defend themselves and disclose abuse to others.
Robins offers some examples and explanations. "Grooming behaviours include efforts to form a special relationship such as providing treats, kind words, favours and attention; non-sexual touching to gauge the child’s reaction; and, perhaps, sexual comments and use of pornography.
"The intention of grooming is to test the secrecy waters so as to determine who among the chosen targets will be least likely to tell; to desensitize the child through progressively more sexualized behaviours; to forge a valued relationship that the child will not wish to risk losing through disclosure; and to learn information with which to discredit the child should he or she tell."
Skeptics may contend that reporting or investigating some types of suspected grooming behaviour is paranoid, or wrongly stigmatizes conduct that appears to be non-sexual. However, this is precisely the response that sexual predators depend on to avoid detection. Robins notes, "When children disclose in the grooming stage, the complaint is typically dismissed because the sexual intent behind the alleged behaviour is not apparent to the untrained observer and the conduct is seen as equivocal or innocent."
Not all cases of sexual misconduct include grooming behaviours. Obviously, not all kind words, favours and attention or non-sexual touching are a prelude to sexual misconduct. Teachers should consult their board policy for more detail, get help from experts for guidance and take children seriously when they speak up.
Robins recommends that the College of Teachers state clearly that a teacher "has a duty not only to avoid sexual misconduct but also to avoid activities which may reasonably raise concerns as to their propriety." Examples might include students staying over at teachers’ residences, or driving students home from games or practices. Robins notes, "These activities cannot be characterized in and of themselves as sexual misconduct, but could be conduct leading to establishing a sexual relationship, and may therefore be subject to some regulation to avoid sexual impropriety or the appearance of it."
However, teachers are aware that many students would be unable to participate in after-school activities if it weren’t for their teacher’s taxi service.
Robins proposes that teachers ask themselves the following questions before embarking on such activities:
• Do supervisors, parents or guardians know about the activity – for example, an extracurricular outing or overnight trip? If not, the activity may reasonably raise concerns. It is always wise to get permission first.
• Is the activity taking place where the student is physically isolated from other observers, for example, one-on-one tutoring sessions behind closed doors? If so, the activity may reasonably raise concerns. A teacher should consider a more public or visible venue.
• Is the situation an emergency, for example, driving a student home in a blizzard? If not, the activity may reasonably raise concerns. A teacher should consult the board policy, or contact parents or guardians to ask permission.
• Will the activity detrimentally affect the school environment? Will the activity be reasonably regarded as posing a risk to the personal integrity or security of a student or as contributing to any student’s level of discomfort?
There are many reasons why educators fail to detect misconduct. However, Robins identifies a number of "speculative myths, stereotypes and generalized assumptions" about sexual misconduct that are common enough to contribute to this failure.
Myth No. 1: "Children and their accounts of sexual abuse are inherently unreliable."
In fact, it is common for sexually abused children to fail to disclose abuse, for a variety of reasons, such as a sense of shame or fear of reprisal. Robins states, "The most common reason that youths do not disclose is fear they will not be believed." Sexual abusers may also actively cultivate these fears in their victims’ minds to make disclosure less likely and to prevent detection. Therefore, teachers must not make disclosure more difficult for victims by assuming children are unreliable. A teacher has a duty not to prejudge children’s accounts but listen with a fair and open mind. The law has changed to reflect this. For example, the Criminal Code and the Ontario Evidence Act have been amended in recent years to remove the requirement to corroborate any testimony from a witness under the age of 14.
Myth no. 2: "A student’s allegation of sexual misconduct by a teacher is unreliable unless he or she made a complaint or disclosure shortly after the event."
The fact that it may take a victim some time – even some years – to come forward with a disclosure of abuse is not evidence that the allegation was concocted. A complainant’s credibility needs to be assessed on a case-by-case basis. Expert investigators – such as College investigators, children’s aid workers or police investigators – are better able through their training and experience to make this assessment. If a teacher is suspicious but unsure, they should report their suspicions and let the experts assess credibility.
Myth no. 3: "A student’s allegation of sexual misconduct by a teacher is unreliable if he or she has previously been involved in sexual activity."
Evidence of sexual reputation is, in general, not admissible in a criminal proceeding regarding a sexual offence. Robins recommends that the same rules for admitting such evidence be applied to disciplinary panels of the College of Teachers. Furthermore, the issue of whether or not a student consented to or solicited sexual activity with a teacher is irrelevant. With or without consent, he says, such activity is professional misconduct.
RULES OF PROCEDURE
Robins also addresses the College’s process for conducting disciplinary hearings. The intent of these proposed changes is to reduce the likelihood that sexual predators evade justice because victims or witnesses are unwilling or unable to testify.
He points out that victims of or witnesses to sexual misconduct, particularly young children, may find it traumatic to disclose evidence or may keep their experiences secret altogether. This can be especially true in a courtroom setting or disciplinary hearing where an alleged or even criminally convicted perpetrator may be present during the victim or witness’s testimony, and might conceivably want to personally cross-examine the victim or witness.
To address this problem, Robins recommends changes to the rules of procedure of the College’s Discipline Committee and Fitness to Practise Committee. Most of these changes are based on existing provisions in the Ontario Evidence Act and the Statutory Powers Procedure Act, which set out many procedures for administrative tribunals.
These changes spell out options that may be available to vulnerable witnesses – which usually means young children – such as screens and closed-circuit television to shield a witness from view of others, or support persons such as a family member or trusted friend who may accompany a vulnerable witness.
Robins also recommends reducing the need for victims to relive their trauma by repeatedly providing an account of their abuse, for example, first to a parent, then to a principal, then perhaps to an investigator, a police officer, lawyers, judges, and ultimately to a discipline panel of the College. If a witness has already provided relevant testimony to the police or in a court of law before a matter comes before the Discipline Committee, Robins proposes that the prior testimony be admitted so the witness need not testify again.