If you don’t have anything nice to say . . .

The familiar adage, “if you don’t have anything nice to say, don’t say anything,” has its place but, taken too far, it can silence people from talking about things that really need to be talked about.

When I was a law student in the late 1980s/early 1990s, Queen’s University did not encourage women who had been sexually assaulted on campus to go outside the university for support or assistance. Instead, students were presented with an internal process, which involved a hearing run by students that was modelled loosely on criminal court. However, the process was strongly weighted in favour of the alleged perpetrator of the sexual assault, inasmuch as the “prosecutor” was a law student while the alleged perpetrator could hire a lawyer to represent him. This created what was clearly an uneven playing field.

We also heard a lot of talk in those days about not wanting to ruin the academic or employment future of the person alleged to have committed the sexual assault. There was much less talk, from the officials at least, about the negative impact on the survivor of the sexual assault.

Conflicting interests

It was not uncommon, in the experiences of the many young women I assisted through this process once I became a lawyer, for them to be required to sign a confidentiality agreement, now more commonly called a non-disclosure agreement or NDA.

By doing so, they signed away their right to talk about what had happened, including to report the crime to the police.

The university’s interests were easy to see: public talk about sexual assault is bound to have a negative impact on those ever-important donations as well as on potential enrolment numbers. After all, what parent wants to send their 18- or 19-year-old daughter to a university where there have been a lot of sexual assaults?

These interests were not generally of concern to women being sexually assaulted on campus, and yet when they turned to university services for assistance, the advice they were being given reflected not their interests but those of the university.

The times they are a changin’

Or are they?

In 2015, Ontario introduced “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment,” which included a strong focus on sexual violence on university and college campuses. All post-secondary institutions in the province were required to develop a sexual violence and harassment policy in consultation with students.

However, as a quick look at the policies at different institutions shows, there is considerable inconsistency in how colleges and universities have approached this mandate.

In particular, according to a 2017 study on sexual assault at Canadian post-secondary institutions, at least nine universities have restrictions on whether and how students can speak about their sexual assaults.

Some policies allow survivors to speak to counsellors and family/friends. Others discourage them from speaking with the media or communicating via social media.  Others tell students they may face disciplinary action if they speak out.

Even where the policy does not require silence, students often face enormous pressure to keep mum.

Legally speaking. . .

These gag orders, as they have come to be called, may not even be legal, since freedom of speech is protected under the Charter of Rights and Freedoms. Wide sweeping policies may be too vague to be enforceable. And, while privacy laws in Canada impose some restrictions on what information can be shared, especially in the employment context, many NDAs go far beyond the law.

A young student, traumatized by what has just happened to her, may not be aware of these nuances and may be silenced in the short or long term by policies or attitudes that tell her she is not allowed to tell anyone about what happened to her.

When she does not tell, she is denied access to counselling support services and legal advice, both of which are critically important to any survivor’s healing process. This silencing may also make it more difficult for the next woman who is sexually assaulted to come forward.

Julie MacFarlane, a law professor at the University of Windsor makes the argument that, when it comes to NDAs, perhaps universities should place their moral responsibilities above any legal responsibilities they make have with respect to privacy.

Sshhh!

Of course, universities and colleges are not alone in wanting to silence talk about sexual violence. Hearing from women about the sexual violence that they have been subjected to might mean we need to change social norms and public policy in order to address the problem.

Secrecy and silence are the perpetrator’s first line of defence. If secrecy fails, the perpetrator attacks the credibility of his victim. If he cannot silence her absolutely, he tries to make sure that no one listens. . . . The more powerful the perpetrator, the greater is his prerogative to name and define reality, and the more completely his arguments prevail.

The problem with sexual assault stories does not lie with survivors telling them; it lies with the lack of an effective systemic response to them.

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