The view out the floor-to-ceiling windows—snowy mountains sparkling in the midday sun—was majestic and serene. But inside the downstairs meeting room at the Diamond University Club on the campus of Simon Fraser University in Burnaby, B.C., the mood was anything but placid.
Before an audience of 150 professors, in a forum jointly sponsored by administrators and the university faculty association, Vancouver lawyer Susan Paish was meticulously mapping out the fine points of provincial and federal legislation on human rights.
It is legislation that has helped push Simon Fraser to create one of the most comprehensive policies on sexual harassment of any Canadian university. “It is not sufficient to say, ‘I’ve done it this way for 10 years and don’t see any reason to change now,’ ” said the lawyer. And, she warned, keeping on top of things in the next 10 years is almost certain to be even more difficult. “The law is very complex and changing fast,” said a poker-faced Paish. “This is rocket science.”
That was perhaps an overstatement. But for many of those in the audience, it no doubt also had the ring of truth. For months, the community of 20,000 scholars perched atop Burnaby Mountain has been getting its own crash course in the complexities of sexual harassment. At the centre of the storm have been the allegations of student Rachel Marsden that her former swim coach, Liam Donnelly—whom she says she saw romantically for 16 months beginning in May, 1994—raped her while the two were on a date in September, 1995. Donnelly has vigorously protested his innocence—publicly insisting that Marsden had aggressively pursued him with lewd e-mail messages in which she invited him for sex in her car, and with provocative photos slipped under his door.
When a formal university harassment panel heard the case last fall, Donnelly refused to take part, acting on legal advice that he says he now regrets taking. After a five-day hearing, he was found guilty of sexual harassment. Soon after, Donnelly asked president John Stubbs to grant him a private hearing. But Stubbs refused, and on May 23, the president fired the swim coach. Days later, Marsden was awarded $12,000 in compensation and full credit for a course she had failed to complete.
Now, it is that decision by Stubbs—who is on a three-month academic leave, and according to his office, unreachable—that has become the flash point for campus debate. In a July 14 news release that took the Simon Fraser community by surprise, acting president David Gagan raised troubling questions about the case. Among other things, Gagan revealed that Marsden had developed a personal relationship with SFU harassment policy co-ordinator Patricia O’Hagan (who has since left the university)—and alleged that Stubbs knew of the relationship when he approved the panel’s ruling. As well, Gagan stated that a draft of the panel’s report had been shown to Marsden—by whom, it was not made clear—before a final version was released.
Hours after Gagan dropped his bombshell, David Bond, chairman of SFU’s board of governors—a body with the power to oust Stubbs from office—announced his intention to convene an emergency board meeting to discuss a plan of action. In the end, logistics prevented the 15 governors from gathering before July 31, the date of their next regular meeting. But in an interview, Bond told Maclean’s the board had already agreed to review the entire case then. And Gagan’s news release had clearly upped the ante considerably. “It will require a lot of effort to restore the university’s image to the one that existed prior to this whole thing blowing up,” said Bond. And that, he added, “is going to take time, and will be based on a lot of statements and a lot of action.” What kind of action? “Man,” said Bond, “I haven’t got a clue.”
As if campus wags did not have enough to talk about, only days after Gagan’s announcement Marsden broke her long silence. In a news release entitled Rachel Sets the Record Straight, and at a news conference on the front lawn of her home in Coquitlam, Marsden painted a colorful portrait of several of the steamier details of her alleged affair with the former swim coach. Describing herself as a “naïve virgin” when she met Donnelly, she acknowledged sending provocative photos to the former swim coach. But, she said, they were not slipped under his door but “personally selected [by Donnelly] from my modelling portfolio.” Marsden also admitted sending a torrid e-mail that invited the coach “to go inside me ... I could sit on your lap or we could do it lying down.” Her explanation: it was “a very desperate attempt to entice him into meeting with me so that I could obtain accountability and an apology for the abuse, harassment and rape I had suffered at his hands.” And her announcement was not without contrition. “I realize that sending this e-mail demonstrated poor judgment on my part,” she wrote, “but unfortunately I had no faith in the criminal justice system at the time, and I had no knowledge of the university harassment policy and procedures.”
In a one-two punch, Marsden followed her defence with a spirited offence—offering to draw a detailed diagram of Donnelly’s bedroom, name the brand of lubricant cream he prefers, and identify many of his sexual mannerisms. And she addressed head-on the issue of her personal relationship with the former harassment officer O’Hagan. The two had gone on a weekend river-rafting trip with members of 0’Hagan’s family, wrote Marsden, but only after her hearing had concluded. And she candidly acknowledged that O’Hagan “offered emotional support to me throughout a process which was extremely painful”—a role Marsden’s supporters were quick to defend. After all, noted Joey Hansen, president of the Simon Fraser student society, O’Hagan was not a member of the harassment panel itself, and had no part in writing the decision. “At the very minimum,” he says, “the acting president should have spelled that out clearly in his news release.”
Still, it was Stubbs, more than Marsden, who had been placed in the spotlight by Gagan’s revelations. Even before last week’s turn of events, many on campus were demanding a formal review of his decision to fire Donnelly, including a group of professors who have been petitioning the board of governors to intercede. The reason for their anger: Stubbs’s steadfast refusal to listen to Donnelly’s version of events—a decision that Stubbs defended shortly after firing the swim coach. “Mr. Donnelly chose not to participate in the process,” said the president in an interview. “My job is not to second-guess the panel, but to receive their report and consider it very carefully.”
Many are now saying that is simply not good enough. “This has all been outrageous,” insists criminology professor Neil Boyd, who served as chairman of the harassment panel between 1990 and 1993.
“Donnelly had provocative photos and e-mails of Marsden offering him sex—things germane to the issue of whether she sexually harassed him.”
Adds Bond: “When you get that kind of new evidence, the answer isn’t to hide behind procedure, but to convene a new hearing.” Others beg to differ. ‘When it comes to power at this place, students are on the lowest rung,” says student president Hansen. “The president can’t buckle just because a faculty member demands a re-hearing.”
However controversial the president’s call, many say that what is really at issue is the entire process of dealing with sexual harassment on Canadian campuses. Particularly troubling, says John Fekete, a professor of cultural studies at Trent University in Peterborough, Ont., and the author of Moral Panic, an account of 17 harassment cases at 10 Canadian universities, is the fact that “there is no gatekeeper in the academy—no one who decides at the very start if a complaint is frivolous, misdirected, vexatious or just plain false.”
'A loss of confidence in the university leadership'
Once the process begins, accusers routinely have to prove their cases only “on the balance of probabilities.” According to the official report of Marsden’s panel, leaked to the media last week, that is precisely what she accomplished. The three-member panel, with one representative each from students, faculty and staff, heard not a single witness who had ever seen Marsden and Donnelly together on a date. And while they concluded that Marsden’s 10 charges against her swim coach—seven of unwanted sexual attention, two of intimidating behavior and one of psychological sexual harassment—appeared innocuous when considered in isolation, they concluded that her complaint was valid when “the sum total” was considered.
That had many at Simon Fraser seeing red. “Here we have a man losing his job, his reputation and his livelihood,” declared Boyd. “We ought to be looking at something a little closer to clear and convincing evidence.” What is more, say Boyd and others, those sitting in judgment should be trained legal professionals. “Not only are these amateurs,” notes Mark Wexler, an SFU professor of business ethics. “They are volunteers—people who probably feel strongly about the issue right from the start of the hearing.”
Perhaps the most contentious issue is the secrecy that sometimes surrounds such hearings. In reality, however, that criticism is often overstated. In her news release, Marsden takes pains to point out a salient fact about her own case that almost everyone seems to have missed: once her complaint had proceeded to a formal hearing, the public and the media were free to attend. As it turned out, it was not until Stubbs fired Donnelly—and the swim coach held his own news conference—that people sat up and listened. Ironically, added Marsden, Simon Fraser and Donnelly are currently in mediation talks, scheduled to conclude this week, to review the details of his dismissal—in private, and under a news blackout. “This amounts to a secret ‘re-hearing’ behind closed doors,” said a furious Marsden. ‘Talk about a secret ‘kangaroo court.’ ” Amid the din of charges and countercharges, at least a few people on campus were busy last week trying to chart a way forward. A committee, convened before the Marsden-Donnelly case erupted, and headed by philosophy professor Kathleen Akins, has for seven months been accepting proposals for reshaping the university’s sexual harassment policy. It is scheduled to deliver a report by summer’s end. Among the most drastic changes that Akins foresees: future panels will be chaired by outside professionals, “in 99.9 per cent of cases, a lawyer, and someone from outside the Simon Fraser community, with no previous knowledge of the case.”
Even that suggestion is encountering a bumpy reception. Business professor Wexler, for one, bristles at what he calls “the outsourcing of a profound moral dilemma.” Adds Wexler: “The more we rely on outside, professional mediators, the less likely it is that people on campus will get involved with learning how the process works, or grapple with the whole idea of sexual harassment and how it affects people.”
Meanwhile, as Akins’s committee investigates long-term change, a growing chorus of voices is calling for something more— personal accountability in the case of Rachel Marsden and Liam Donnelly. “The whole affair has caused a loss of confidence in the university community and in its leadership,” says Boyd. “This problem did not begin until the president decided to ignore relevant evidence. It seems to me he must be held accountable.” Declares Michael Fellman, a history professor and member of Akins’s committee: “There has to be a thorough housecleaning.”
Amid speculation over how events will unfold, at least some at Simon Fraser were voicing another concern: that on the scenic mountaintop campus, the trees had begun to obscure the forest. ‘Whoever wins or loses all these battles,” student leader Hansen says, “it is pretty clear that women on this campus are going to be more reluctant than ever to come forward with claims of sexual harassment. It’s pretty ironic, isn’t it, that after all the time and energy expended, our campus may be a less safe place to learn than ever?”
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