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#Metoo and its Impact on Sexual Assault Cases

#Metoo and its Impact on Sexual Assault Cases

Original article by Howard Levitt in Financial Post

“When I use a word,” Humpty Dumpty said scornfully, “it means just what I choose it to mean—neither more nor less.” –Lewis Carroll

In the #Metoo era, investigations have become de rigeur. If anything, we are in a climate of over-investigation where management, too often, alleges the need to investigate as a pretense for avoiding making necessary decisions. Employers have also neutered their own human resource departments by using outside investigators when their own trained human resource executives know the company’s culture, policies, and individuals far better. Usually, they can do a more efficient job than an outsider. Companies also too often use lawyers for investigations, which only invites the affected employees to bring in their own lawyers, further delaying the process (employees otherwise have no right to bring counsel to an investigation).

There is also a problem insofar as the very fact of an investigation usually seals the fate of the investigated employee. I have seen few cases where a suspended employee pending investigation has been reinstated, regardless of the findings.

Dismissal and Reputational Damage

But one particular case—where the investigator cleared the employee from allegations of sexual harassment and worse—seems particularly egregious. In this case, the main complainant (MC) made serious allegations of violent rape against UBC’s Creative Writing Chair Steven Galloway, also a sessional instructor. The first grievance dates back to dates back to Dec. 9, 2015, when the rape allegedly occurred. At the time of the complaint, the allegations against Galloway were conveyed by Chelsea Rooney, a former student in the department. Rooney claimed that she could bring forward an additional 19 former and current UBC students who were also allegedly abused by Galloway.

According to an article in the Quillette by Brad Cran, an emergency meeting with the creative writing staff was held at the home of one professor, inviting only selected faculty. They requested that the Dean suspend Galloway and remove him as Chair. UBC’s Office of Equity and Inclusion, according to Cran, conscripted Rooney, MC’s spokesperson, despite her lack of training, let alone objectivity, to gather evidence of complaints against Galloway. She tried her damnedest to do so.

Investigating the Facts

UBC eventually did retain, to its credit in this case, a professional factfinder, former retired BC Supreme Court justice Mary Ellen Boyd, with a history of strong decisions in favour of victimized women. I might know that, unlike lawyers, whose skills are in cross-examination, judges have actual experience and expertise in fact-finding. Boyd found that MC fabricated her story and that, rather than a violent rape, MC and Galloway had conducted a two-year long consensual affair, which lasted long after the rape was alleged to have occurred. There were also no 19 complainants. The few witnesses whom Rooney conjured up had complaints that were, at best, trivial and in no way constituted sexual harassment. Rooney, according to Boyd, ultimately disavowed her earlier recollections.

Open and shut one might think, but it was not to be. Galloway’s accusers became a mob on social media, viciously attacking anyone who stood up for his right even to due process. Even Canadian feminist icon, Margaret Atwood, was not spared from the attacks of the Twittersphere for declaring, “I believe in order to have civil and human rights for women there have to be civil and human rights, including the right to fundamental justice… In regard to the specifics of Galloways case, any fair-minded person would withhold judgement until the report and the evidence are available for us to see. We are grownups: we can make up our own minds, one way or the other.”

The Galloway story has been well covered in the pages of this newspaper, including in his own words in a remarkable three-page spread. Shockingly, while Galloway’s name is pilloried, his accuser, MC, retains her anonymity. She does not deserve this and I would be delighted to name her.

And he is not the only one.

A Similar Case of Wrongful Dismissal

Ahmed Fekry Ibrahim recently sued a student and another professor, Pasha Khan, for $600,000 for libel as a result of what he claims to be a “ruthless campaign“ to destroy his reputation and right to privacy. He claims that was in a consensual relationship with a student three years earlier but, after it ended, a smear campaign erupted with the goal of having him fired; stickers appeared in bathrooms alleging that he was a sexual predator and allegations were made in the student newspaper. Although the messages were posted by an anonymous group, the lawsuit claims that the student he sued was behind them. The lawsuit also alleges that Khan warned female students to stay away from him to avoid sexually inappropriate behaviour. His tenure application was denied, he now must leave McGill at the end of his existing contract, and he asserts, with good reason, he is now unemployable in academia.

Many employers faced with allegations against employees have found it more convenient to fire rather than to determine whether the accused actually committed what is alleged. This did not take the form of a full-blown investigation. Speaking to the complainant, asking for the names of and meeting with apparent witnesses, and then placing allegations against the accused and providing them with a chance to respond usually suffices legally.

But what if none of this occurs and the accused are unfairly pilloried and ruined reputationally? What is their recourse?

Ibrahim has sued for defamation. In addition, the law provides a variety of potential causes of action against those who make false allegations. They include inducing breach contract, intentional infliction of economic loss, and intentional infliction of nervous shock, i.e. mental distress.

The risk of such lawsuits should not prevent anyone from making allegations in good faith. In the context of the workplace, employees are able to make accusations that they reasonably believe to be true even if they turn out to be wrong. But allegations made in bad faith out of political proclivity should not be protected and indeed, are not.

Scant solace for Galloway, as the limitation for such lawsuits is two years. But to an extent, #Metoo has led to the elimination of due process, with the falsely accused having little recourse.

If you’ve been wrongfully dismissed, contact the employment lawyers at Levitt LLP at 1-416-594-3900 or request a consult here.

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