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Jan 19, 2015

Fine line to walk when it comes to sexual abuse allegations

Employers can feel the squeeze between the rights of the accused and the need to protect potential victims – especially if children are involved
    

By Jeffrey R. Smith

There have been no shortage of headlines in recent months about high-profile individuals who have been accused of sexual abuse.

One of the issues that has caused people to take sides on those stories is what to think when nothing has yet been proven in court.

One side argues the “innocent until proven guilty” mantra, and will not accept the allegations as truth until legally proven in a trial. On the other hand, it’s argued that a preponderance of evidence from numerous sources should lead to the conclusion that the events happened, regardless of whether there’s been a trial yet.

While criminal courts require allegations to be proven beyond reasonable doubt, elsewhere the standard is more in line with the second view: a large amount of evidence pointing to a conclusion, even if not individually convincing, could establish “a balance of probabilities.”

Teacher accused of abuse

But when it comes to allegations of sexual abuse — particularly concerning a teacher — the bar for proof is still high. This is probably as it should be, since such allegations can end a career and seriously damage a reputation. If such allegations are made, all attempts to discover the truth should be made.

A few years ago, an Ontario teacher was accused by a former student of sexually abusing him 16 years earlier when he had the student in Grade 8. The teacher had developed a close relationship with the student’s family when asked to keep an eye on him when the student’s father developed health problems. This led to a lot of interaction with the student and the formation of a friendship with the student’s family.

When the former student was an adult, he revealed that he had been sexually abused by the teacher on numerous occasions during that Grade 8 year. He remembered certain things, but claimed he visualized many more with a counsellor. The teacher was charged but, after a trial, the charges were dismissed due to inconsistencies in the former student’s account of the alleged sexual abuse.

The school board for whom the teacher worked re-assigned him to a position where he didn’t have contact with children while the charges were pending. After the teacher was acquitted in court, the board conducted its own comprehensive investigation, interviewing the former student, the teacher and other relevant parties. The school board determined the allegations were serious enough to indicate the teacher had acted inappropriately and terminated his employment.

The teacher denied sexually abusing the former student — as he had all along — and grieved the dismissal. The arbitrator carefully examining the accounts of all involved, and found there were too many holes in the former student’s story. Though the arbitrator found it was likely the teacher may have acted inappropriately in hindsight by hugging the student and telling him he cared for him, this was prompted by the family’s request to keep a close eye on him.

There wasn’t convincing evidence this behaviour had a sexual connotation to it or escalated to abuse, said the arbitrator. The school board failed to prove on a balance of probabilities that it had just cause for dismissal and was ordered to reinstate the teacher:
York Region District School Board and ETFO (Ross), Re, 2014 CarswellOnt 18225 (Ont. Arb.).

In this case, the standard for the school board wasn’t to prove beyond reasonable doubt of the teacher’s guilt in order to justify his dismissal, but it still had to show the majority of the evidence pointed to it — a “balance of probabilities.” However, there is a high bar to prove there is just cause to take away someone’s job — in reality, his whole career in this case — if allegations aren’t true.

The former student’s allegations were fairly vague and he had difficulties with specific locations and time periods. He was 13 at the time and should have had a better memory of details, said the arbitrator. And there was a seed of doubt that the memories were exaggerated from the teacher’s affectionate behaviour of hugging and vocal encouragement — though possibly borderline inappropriate in hindsight but not actual abuse. In some instances, the former student’s recollections could be outright disproven, which cast doubt on other instances.

When a teacher is accused of sexual abuse of a student, it’s an extremely serious and delicate situation. Even if the allegations aren’t true, they can end a teacher’s career. If they are true, it’s essential for the school authority to remove the teacher from employment. But it’s not an easy balance to keep, and even the most thorough of investigations and solutions probably won’t make everyone happy.


    
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