The
Economic Freedom
Network

Public Policy Sources 25:
Preliminaries

[Previous] [Contents] [Next]

Introduction

On May 23, 1997, Simon Fraser University (SFU) fired swim coach Liam Donnelly with cause, for "severe sexual harassment." SFU claimed his guilt had been proved by a three-person Investigative Panel which had found him guilty of numerous offenses including having sexually molested a student, Rachel Marsden, at least seven times during a sixteen-month romantic relationship. SFU also claimed that the Panel Report had been appropriately reviewed by President John Stubbs, who had confirmed the truth of the charges against Donnelly.

Donnelly maintained his innocence throughout, claiming that he had never even dated Marsden, that her story was a complete fabrication, that she had been the one harassing him, and that the Panel’s decision was based on demonstrably false testimony. Stubbs was adamant, claiming that Donnelly’s guilt had been proved and confirmed by the investigation and decision process, which had taken a year and a half since the charges were submitted. Further, Stubbs maintained that the process had met the high standards indicated in the leading quotation.

The case, which had been secretly processed up to the firing, became a media event, and questions were raised concerning the legitimacy of the decision and process. Within two months SFU reversed itself, exonerating Donnelly on all the charges for which the Investigative Panel and President John Stubbs had found him guilty. In agreeing to reinstate and clear Donnelly of all charges, SFU acknowledged problems with both the evidence and the fairness of the procedures.

The issues reach far beyond the administrative foibles of one university. Shortly after Donnelly was dismissed, Gregg MacDonald (presidential assistant at SFU) stated:

The Harassment Policy at Simon Fraser University is not dissimilar to harassment policies at other post-secondary institutions across Canada. (June 5, 1997)

The above statement contains considerable truth. Policies, requirements, and procedures vary generally, but nearly all schools have them, and the use of panels somewhat like the ones at SFU are more common than not. As the article in the Canadian Association of University Teachers journal states:

Many commentators noted that universities across the country were likely to reconsider their harassment policies as a consequence of this case. (Sept. 1997, p. 6)

John Fekete (1994) has demonstrated that many of the problems found in the Donnelly case are widespread across Canadian Universities. He documents how numerous innocent academics have been subjected to dubious and malicious prosecutions as the result of anti-harassment programs. These cases indicate that prejudice and special agendas inimical to both academic freedom and due process motivate these persecutions. Klatt (1997b), has analyzed the wide-ranging reach and dangers from the implementation of such policies without proper protection for the accused.

The issues raised by anti-harassment programs continue to be problematic in BC. Dianne Rinehart (June 20, 1998) raised numerous questions concerning the fairness of various kinds of harassment tribunals. She noted the Donnelly case and cited considerable evidence indicating that these tribunals are ideologically driven and often stacked against the accused. More recently, UBC President Martha Piper apologized on behalf of her institution for the havoc caused by their administration’s credulous acceptance of the McEwen Report (Steffenhagen, Nov. 5, 1998; Klatt, 1997a).

Until the Donnelly case erupted, SFU was thought to have one of the better anti-harassment programs. There seemed to be an energetic effort to address harassment issues without the controversies that afflicted other BC universities. President Stubbs was generally well-liked and had tentatively been selected to serve another five-year term. Yet the whole arrangement was a time bomb waiting to go off. What follows might well be a cautionary story for many universities, organizations, and societies who imagine that their own arrangements are satisfactory.

Basic thesis of study

SFU has claimed that their Investigative Panel did nothing wrong and that the resulting problems were not their fault. This is reflected in the Donnelly agreement and in announcements from SFU officials. The administration still contends that their Panels acted to the best of their abilities given the information they had (SFU NR, Oct. 24, 1997; Kelleher, July 23, 1997; Munro, Mar. 23, 1998).

In contrast, I contend the following: (1) The findings of guilt were determined by an analysis that was incompetent, unfair, and prejudiced; (2) Evidence of guilt was clearly lacking; (3) There were numerous major procedural violations of the rights of the accused; (4) SFU possessed information showing that Marsden was not a trustworthy witness; (5) The dismissal of Donnelly was an unconscionable action; (6) The persecution was driven by ideological blight.3

These are strong statements requiring strong support, which I will provide. This analysis will show that the inadequacy of the Report is evident without appeal to other information; therefore, SFU’s failures cannot be blamed on subtle flaws or on Donnelly’s lack of cooperation. In the sections "Presentation and Analysis of Panel Text," "Analysis of Report," and "Prejudicial Treatment," I demonstrate the Panel’s incompetence, its prejudice, and the lack of evidence of Donnelly’s guilt. The "Additional Problems with the Case" section describes known procedural failings in the handling of the case. The next section, "Donnelly’s Boycott of the Panel Hearings," shows why the failures cannot be blamed on Donnelly’s non-participation. The last three sections consider the causes and implications of the case.

Synopsis of public history of controversy

In late May 1997, President Stubbs announced the dismissal with cause of Liam Donnelly, the coach of the SFU swim team, supposedly for sexually harassing a student, Rachel Marsden, during a 16-month romantic affair. SFU claimed that an appropriate investigation by an internal Panel had produced sufficient evidence to justify President Stubbs’ decision to terminate Donnelly with cause, and denounce him for major harassment offenses (SFU NR, May 26, 1997).

These hearings had occurred in May and June of 1996. On the advice of his lawyer at that time, Donnelly had boycotted the Panel hearings over the issue of jurisdiction, since Marsden was not a student of Donnelly’s, nor a member of the swim team.4 After receiving the Panel Report in October 1996, Stubbs requested that both Donnelly and Marsden make comments. Donnelly, who was no longer assisted by a lawyer, responded at length, supplying abundant evidence, as he contended that the findings of the Panel were false, and that the entire story of a 16-month romantic affair had been fabricated by Marsden.

Anita Braha (advisor to Stubbs and to the Panel) contended that Marsden’s evidence had been determined to be valid by appropriate investigation, whereas Donnelly’s evidence was untested (Jimenez, June 6, 1997; Braha, June 6, 1997; SFU News, June 19, 1997). On the basis of this advice, Stubbs refused to consider Donnelly’s evidence. Stubbs also ignored the original evidence, and relied entirely on the Panel Report (Fournier, June 11, 1997). From this review, Stubbs found that the Panel Report had proved Donnelly’s guilt, which determination supposedly justified SFU both in terminating Donnelly with cause and in proclaiming his guilt to the world.

Donnelly was notified of his firing with cause on May 23, 1997. Donnelly, who had long acted without legal representation, then obtained a new lawyer, Loryl Russell, who appealed his firing through a university-mandated arbitration process. On May 26, 1997, SFU publicly denounced Donnelly, attacking him at considerable length for his non-cooperation with the Panel and declaring that he was guilty of "severe harassment." Marsden went public the same day denouncing Donnelly as a date rapist, a charge later echoed by Stubbs.5

Four days after SFU and Marsden publicly denounced Donnelly, he and Russell answered back with their own press conference in which they raised numerous issues concerning the validity of the charges. They asserted that Donnelly had not even dated Marsden, and that she had been the one who harassed him. They disclosed that Marsden had sent Donnelly e-mails offering various sexual treats (both Clintonesque and non-Clintonesque), well after the time of the last claimed assault.6

Numerous controversies surrounded the case. Many professors attacked the lack of due process for the accused found throughout the Harassment Policy. They objected to the administration’s acceptance of frivolous complaints, the biased pro-prosecution mentality, the low standards of proof, conflicts of interest, widespread secrecy, and, finally, lack of punishment for false accusations.

The arbitrators were promptly selected with hearings scheduled for August 1997. Two weeks after firing Donnelly, Stubbs went on a previously scheduled study leave and left the case in the hands of David Gagan, SFU’s Academic VP. SFU and Donnelly then agreed to mediation, which started in early July. The mediation was conducted by Stephen Kelleher, who had been previously selected as the chief arbitrator. Gagan was assisted in handling the case by Gregg MacDonald (an assistant to Stubbs), and by Gabriel Somjen, an outside attorney. Donnelly was assisted by his new attorney, Loryl Russell.

During the mediation, SFU publicly announced that Patricia O’Hagan, SFU’s harassment policy coordinator, had a "relationship" (nature unspecified) with Marsden, that a draft copy of the Panel Report had been improperly given to Marsden, and that O’Hagan’s improprieties were known to Stubbs, who had concealed them from Donnelly. SFU also acknowledged that the case against Donnelly depended on Marsden’s credibility, and that contradictions between her written representations and her testimony cast doubt on her credibility (SFU NR, July 14, 1997; Kelleher, July 23, 1997).

In the mediation, SFU agreed to restore Donnelly to his job, give him back pay for the time he was dismissed, pay him $35,000 for legal fees, and to remove all findings of harassment from his record. In addition to agreeing not to sue SFU, Donnelly acknowledged that he should have been more cooperative and that he should have stopped Marsden’s office visits earlier than he did. In essence, the SFU administration conceded defeat on the issue of Donnelly’s guilt on all the many charges for which the Panel had convicted him (Kelleher, July 23, 1997; SFU NR, July 23, 1997).

Soon after the settlement, SFU President John Stubbs notified the SFU Board of Governors that he was suffering from clinical depression. He promised to explain his actions on recovery (Stubbs, July 28, 1997). Despite Donnelly’s exoneration, SFU still paid Marsden the $12,000 bounty that Stubbs had recommended (Gagan, July 31, 1997). Thus, SFU had the dubious distinction of paying both sides in a harassment complaint.

Revelations continued as the press later reported that Marsden had claimed the relationship with O’Hagan was very close (Jimenez, Oct. 21-22, 1997). Marsden had gone river rafting with O’Hagan and her family for four days while the case was pending. When he instructed O’Hagan to limit connections with her, Marsden wrote a highly emotional letter to Stubbs threatening to commit suicide if she was deprived of the companionship of her "best friend."

In late October 1997, SFU (then led by Jack Blaney), revealed that all 11 harassment tribunals formed from late 1993 through 1996 had been selected by a manner that substantively violated the Harassment Policy (SFU NR, Oct. 24, 1997). Hence, both the Panels and their results lacked standing. SFU then set out to negotiate settlements with many participants.

In December 1997, Stubbs resigned as President, but was paid over $300,000, on top of which he remains with SFU at the top of the professorial pay scale. The settlement failed to require an accounting of his role in the case, and Stubbs reneged on his July 1997 promise to explain his actions.7 SFU has since adopted a new harassment policy, which calls on the use of outside investigators and relies more on the general disciplinary policies. There seems to be some consensus that the new policy and the new personnel have improved, although many problems remain.

Meanwhile, SFU wound up paying both sides in a number of cases and finally agreed to pay all of Donnelly’s legal fees (SFU NR, May 1, 1998). In the 1997/98 swim season, SFU did well in the National Association of Intercollegiate Athletics (NAIA) competitions. In the championships, the SFU men’s team finished first by a wide margin; in the women’s competition, SFU finished a close second. Donnelly was named NAIA coach of the year.

Authentication of text

The report in which SFU claimed to have proved Donnelly’s guilt was titled: "Report of the Investigative Panel on the Complaint of Ms. Rachel Marsden against Mr. Liam Donnelly" (Oct. 11, 1996), by Lou Hafer, Sandra Eix, and Thea Hinds. The title is erroneous, since the tribunal was supposed to be denoted as an "Investigative Committee." Still, to avoid confusion in referencing, I will employ the stated titles of "Panel" and "Panel Report," abbreviated as "PR."

Since SFU refuses to provide official copies of this document, the issue of textual authenticity must be addressed. In July 1997, anonymous copies of the PR were sent to various reporters, with circumstantial evidence pointing to Marsden as the source.8 The Vancouver Sun ran two headline stories commenting on the PR, which suggests their supported belief in its authenticity (Jimenez, July 17, 1997; Jimenez and Ouston, July 18, 1997).

Moreover, the SFU Freedom of Information (FOI) office has provided three different indications that the text is, in fact, correct. First, the Office released a few paragraphs of the text which agree verbatim (SFU FOI, June 30, 1997). Second, the Office provided me with a blanked-out version with section heads intact, all of which agreed [Forsyth, Oct. 21, 1998). Third, the Office denied a reporter’s FOI request on the ground that she already had this document, which refusal would have been improper if the Office knew of discrepancies (SFU FOI, Sept. 3, 1998). Finally, the varying interests of those holding the text and some additional tests provide further confidence.

Need for analysis

One general qualification is in order. Investigative tribunals should not be criticized for failing to find things out, provided the search for the truth is competent, diligent, unbiased, and not over-reaching. Suppose a tribunal exonerates a person for lack of proof of guilt. Subsequent proof that the accused committed the action does not indicate that the tribunal did anything wrong, since proof may have been lacking at the time.

However, "proving" things that are not true is more serious. Such a failure shows that we not only lacked conclusive information, but that we over-rated or misused the knowledge we had. Valid methods might often fail to prove things that are true, but they should not "prove" things to be true when they are false. False proofs indicate more fundamental flaws than failures to find out, especially when an innocent person is wrongly convicted of a serious offense.

Hindsight issue

Panelists are not responsible for things they did not know, provided they exercised due diligence. Still, at the least, they are responsible for due care in examining what was known. To the extent that they failed to deal with available evidence in a careful and unbiased manner, serving no ideology other than individual justice, they are morally culpable.

The hindsight issue cuts both ways. The Panel should not be condemned on any issue solely because a conclusion was wrong, nor vindicated because a conclusion was right. Tribunals should be ethically exculpated if proper investigations reasonably led to the conclusions reached, provided that doubt and lack of evidence are properly resolved in favour of the accused. On the other hand, the Panel should be criticized for drawing conclusions based on improper or insufficient evidence, even when such conclusions turn out to be true.

Scope limitation

To focus criticism of the PR, I will limit my criticism in the next three major sections to material that is evident from the PR itself. Thus, these criticisms of the PR cannot be gainsaid by claims that Panelists lacked necessary information. Further, anyone who read the PR had all the information I use in the next three sections of this study. Thus, Stubbs supposedly knew everything referenced in these sections, since he claimed to have read the PR, "very, very carefully" (Fournier, June 11, 1997).

This limitation places the controversy over Donnelly’s evidence in the proper perspective. I contend that the issue of Stubbs’s refusal to look at Donnelly’s evidence has been a red herring, drawing attention away from whether the supposed case against Donnelly was ever credible. I argue that the PR should have been rejected without needing any evidence from Donnelly. Accordingly, no information from Donnelly is used in my analysis of these issues.

My entire case is built on information contained in the PR itself, which report Stubbs had a duty to consider carefully. Stubbs himself claimed to have read the PR with extreme care and to have found all its findings to be sufficiently well-supported to merit his endorsement, to ratify all the findings, and carry out the Panel’s desire to destroy Donnelly (PR, p. 20). Further, Stubbs claimed that this was the sole basis for his actions (Fournier, June 11, 1997). If the arguments of the PR were deficient, there can be no justification for the actions taken against Donnelly.

Focus on existence of relationship issue

To reduce the size of the analysis task, I will focus on one key issue: the alleged existence of a 16-month romantic relationship between Donnelly and Marsden. Thus, in the "Presentation and Analysis of Panel Text," and "Analysis of Report" sections, I am placing myself at a double disadvantage by confining my criticism to one basic issue and by using no evidence not apparent from the PR itself. The handicap will not prove burdensome.

Either/Or

Acting President Gagan pushed the view (which SFU has never repudiated), that this is a faults-on-all-sides controversy in which blame and harm should be shared, with payments to Marsden somehow compatible with the exoneration of Donnelly (Gagan, July 31, 1997; Swain, July 25, 1997). Many controversies are as Gagan described: both sides have legitimate points, and both sides exaggerate or push beyond their just claims, so a dispute arises. In such a case, any reasonable settlement must balance legitimate claims.

But this is not such a case. Marsden claimed that she and Donnelly had a 16-month romantic relationship, during which Donnelly assaulted her on at least 7 different occasions spanning the full 16-month time period (PR, pp. 2-3). In contrast, Donnelly claimed there was no romantic relationship, and no sexual activity. The Panel knew that Donnelly had categorically denied the charges (PR, p. 3). Thus, there is no way that both parties could be remotely telling the truth. This is indeed an either/or issue, not a question of degrees.

Implications of Existence of the Claimed Relationship

If the relationship did exist, it would not immediately follow that Donnelly was guilty of harassment. Such a relationship would not violate any rule, since Marsden was not on the swim team. Whether Donnelly had engaged in actions constituting harassment under well-defined legitimate rules would still be an open question.

Still if the claimed relationship existed, Donnelly would have made false representations (and would have subsequently have committed perjury in the mediation). Further, if such a relationship had been proved to exist, Donnelly’s credibility would be nil and Marsden’s good in looking at the remaining issues, somewhat as the Panel presumed. SFU would have had credible grounds for the actions taken against Donnelly.

Implications of Non-Existence of Romantic Relationship

All findings against Donnelly depend on the relationship existing, or Marsden being truthful, and usually both. If the romantic relationship was fabricated, the case against Donnelly fails completely. In such a case, Donnelly was the victim of a malicious prosecution based on massive lying. In addition, Donnelly was pummelled for telling the truth, since the Panel claimed that Donnelly’s denial of the relationship was an "aggravating circumstance" (PR, p. 19).

If the alleged relationship is fictitious, this is no "faults-on-all-sides matter" in which everyone contributed a little. Rather, this was a major miscarriage of justice in which massive perjury was committed, and then condoned by those with an ethical responsibility to prevent it. Further, the easy belief in such a huge fiction would speak volumes about the actual quality of the anti-harassment program, as well as programs based on similar assumptions.

Method of analysis

The PR possibly stands and certainly falls by how it handles this one aspect of the case. I will now present the Panel’s arguments on this crucial issue, along with my analysis of this section of their Report. The Panel’s arguments come from Section 6 of the PR, "Existence of a Romantic Relationship" (pp. 10-11).

The Panel’s evidence summary continues for 11 paragraphs, culminating with the conclusion that the relationship existed. From thereon in, the Panel assumed that with the existence of the relationship having been proved, all other evidence is to be interpreted in such light.

Hence, this 11-paragraph argument is absolutely essential. If the alleged relationship was fabricated, we are not dealing with a legitimate controversy that was merely tilted in the wrong direction. Instead, we are confronted with an egregious case of invidious prosecution. If the Panel is wrong on this point, the rest of their report is a true horror story in which Donnelly is repeatedly ravaged, based on an enormous fiction.