Sexual harassment in higher education in Canada and China: legal procedures and sanctions

• In Event: Roundtable Session (Monday II)
  In Refereed Round-Table Session: Gendered experiences in higher education

Proposal

BACKGROUNDS AND SIGNIFICANCE

The #MeToo movement in the U.S. and abroad has brought to public attention a fact that had been well known before but not discussed much in the public: sexual harassment. While most victims are women, sexual harassment is also directed towards males. Sexual harassment constitutes a form of discrimination based on gender, and it is usually coupled with unequal power structures in institutional or group hierarchies. Fear of disbelief, inaction, blame or retaliation are the main reasons why most of these assaults are not reported by the victims and not dealt with in fair and proper ways. Like most other hierarchies, higher education institutions have asymmetrical power structures and are therefore prone to abuse of power and discrimination.

Gender equality is a fundamental human right protected by the UN Charter and the UN Declaration of Human Rights and an essential part of sustainable societies. It is indeed one of the Sustainable Development Goals (SDGs) set out in the United Nations 2030 Agenda. Since the late 1970s, sexual harassment has gradually been recognized as a form of sex discrimination (MacKinnon, 1979; MacKinnon & Siegel, 2004) and is now explicitly banned in most countries (UN Women, 2018). In higher education, sexual harassment poses a serious threat to gender equality as well as to the actualization of the right to education, making the ivory tower an unsafe and unfriendly place (Fisher, Daigle, & Cullen, 2010; Paludi, 1996). The negative impact of sexual harassment has been proved valid cross-culturally (Mirsky, 2003).

This paper aims to map out the theoretical and structural bases for higher education’s responsibilities of addressing sexual harassment and further examines to what extent these responsibilities have been fulfilled in Canada and China.

The findings of this study will help: 1) illuminate the theoretical foundations and legal structures of sexual harassment prohibition; 2) analyze the systems against sexual harassment in higher education in the country-specific contexts of Canada and China; 3) suggest approaches of improvement.

THEORETICAL EXPLORATION: HIGHER EDUCATION, SEXUAL HARASSMENT, AND LEGAL RESPONSIBILITIES

To answer the questions why and to which extent higher educational institutions are responsible for dealing with sexual harassment on campus and in conjunction with education related activities, the authors will engage a theoretical discussion from the following five perspectives: 1) Agency theory (Restatement of the Law: Agency, 2006) and its applicability for faculty-student harassment; 2) The traditional theory of in locus parentis in the case of minority age students; 3) Educational institutions’ general and contractual responsibilities to protect students (Cambron-McCabe, McCarthy, & Eckes, 2013); 4) Rights to education (Muñoz, 2008; Tomaševski, 2003; UNESCO, 2014); 5) “Institutional betrayal” (Smith & Freyd, 2014) and “systemic trauma” (Fitzgerald, 2017).

STRUCTURAL ANALYSIS: LEGAL STRUCTURES AND INTERNATIONAL COMPARISONS IN THE SYSTEMS ADDRESSING SEXUAL HARASSMENT

Besides the legal responsibilities to address sexual harassment in higher education, the author suggest that how a country deal with this issue is nested within a series of complex legal structures. For example, 1) The relationships between criminal laws, tort laws, and human rights laws. This help illuminates why we need human right laws or special legislation in addition to the existing criminal and civil laws (MacKinnon, 2016); 2) The relationships between legislation, administration, and judiciary. On its outset in the U.S., sexual harassment was a judicially established claim by interpreting gender equality law. Nowadays, some countries have established a dual judicial and administrative system to handle sexual harassment in education (Suran, 2014); 3) The relations between state, local, and higher education institutions. This answers the questions which agency has the authority/legitimacy to require universities to address sexual harassment and what kinds of policy instruments such agency has to ensure compliance. It also attempts to explain universities’ voluntary actions in light of these inter-institutional relationships (Berman, 1985; Nonet & Selznick, 2001).

COUNTRY-SPECIFIC ANALYSIS OF CANADA AND CHINA

Drawing upon the above perspectives, we shall analyze the situation in Canada and China to illustrate their specific systems of addressing sexual harassment. The comparison of sexual harassment in higher education in both countries will be of interest to legal experts, administrators, academic staff, students and their representatives from a comparative perspective since both university governance and institutional processes are different in both countries but also the legal and public justice system.

The authors of this paper are higher education researchers with a legal background, teaching at large research universities in Canada and in China. The multi-cultural background of the authors will make for an insightful comparative analysis of the data.

Our analysis will cover the following issues:
1. What is the legal status of sexual harassment? Is there a hierarchy of legal rules as applied to sexual harassment in higher education institutions and on what theoretical basis? Are they criminal laws, tort laws or civil rights laws? What roles did the legislature, administration, and judiciary play in the establishment and implementation process?
2. Has the federal/state government issued regulation on sexual harassment prohibition/prevention in higher education? What is the nature of such regulation, mandatory or advisory? What are the driving forces for the establishment of such rules?
3. Do colleges and universities have their own policies on sexual harassment? What kinds of procedures have colleges and universities in place for sexual harassment complaints? Are they reactive or responsive to the call for gender equality?
4. In the above three aspects, how are the boundaries between acceptable and unacceptable sex-related behaviors and the boundaries of university responsibilities drawn?

Data sources or evidence of this analysis come from: 1)Academic and agency studies on sexual assault and harassment in universities and colleges; 2) Laws, rules, and cases retrieved from major legal databases; 3) University-level data collected from the websites of colleges and universities or requested from the higher education institutions directly.

Authors

• Ran Zhang, Peking University

• Hans G. Schuetze, University of British Columbia