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Confidentiality vs. Student Safety

Posted by On Tuesday, December 17, 2013

A victim’s request for confidentiality is a problem that schools often grapple with under the difficult circumstances of a sexual assault case. In a previous post we discussed how FERPA allows public disclosure of the outcome of student conduct hearings when accused students are found responsible for sexual assault. But what about a victim’s request for confidentiality when the report is made? Does the school have an obligation to respect the victim’s wishes?

The following case provides one example of how following a school’s reporting policies can have unintended results. Seventeen-year-old Anna Livia Chen told her Residential Assistant she would not participate in Swarthmore College’s Acquaintance Sexual Assault Prevention workshop for incoming freshmen. As a childhood sexual abuse survivor, Anna said it would be too emotionally difficult for her to listen to other survivor’s stories, which is a standard part of the program.

Anna was abused when she was a junior high school student in California. Given that the incident occurred years before and thousands of miles away, Anna and her RA didn’t think this needed to be reported to the Title IX coordinator. Swarthmore’s sexual assault policy “applies to off-campus conduct that is likely to have a substantial adverse effect on any member of the Swarthmore College community or Swarthmore College . . ..”

However, a facilitator who contacted Anna to arrange a private session told the RA that Swarthmore’s new interim policy requiring all college employees to report information about sexual assault to Public Safety applied to Anna’s case. The RA complied by reporting the incident to Swarthmore’s Title IX coordinator, but stressed that Anna “was no longer in any danger whatsoever” and had “all the support” she needed from her family, friends, and therapist back home.

The Title IX coordinator, in turn, was required by the school’s policy to report the information to the school’s general counsel who advised that under Swarthmore’s policy the abuse must be reported to the Pennsylvania child abuse hotline. It should be noted that pending Senate Bill 31 would add postsecondary school employees to the list of mandatory child abuse reporters in Pennsylvania.

When she was contacted by child protective services, Anna told CPS that she did not want them to investigate her case. Later, on Anna’s 18th birthday, CPS informed her that it was legally required to notify local police about her case.

Swarthmore’s Policy Goal

According to Swarthmore’s secretary of college, the reporting policy that set this chain of events into motion was meant “to not only meet the letter and spirit of the law, but to ensure that our policies assure the safety of our students, provide meaningful support to victim/survivors, and enable us to respond with the highest levels of fairness, compassion, and respect for privacy.”

But this is how Anna described her experience: “So much of my time was being drained by having meetings with various administrators and resources, not to mention the emotional energy it took. I had no time for self-care, which is something that I desperately needed with everything that was going on. I am still frustrated that this process got to a point where it overtook my life in the way that it did.”

Now Anna is working on changing Swarthmore’s policy and procedures to prevent other victims from having to go through the same experience.

Title IX and Victim Confidentiality

What does Title IX require schools to do to protect a sexual assault victim’s confidentiality? First, Anna should have been told that school employees are required to report information they receive about sexual assault. If she wanted the information to remain confidential, she should have been referred to confidential resources, such as religious and professional counselors.

Second, Title IX requires schools to respect a victim’s request for confidentiality in a sexual assault investigation and response except when it interferes with the school’s ability to stop harassment and protect the safety of its students. The OCR’s 2001 Handbook explains:

In all cases, a school should discuss confidentiality standards and concerns with the complainant initially. The school should inform the student that a confidentiality request may limit the school’s ability to respond … If the student continues to ask that his or her name not be revealed, the school should take all reasonable steps to investigate and respond to the complaint consistent with the student’s request as long as doing so does not prevent the school from responding effectively to the harassment and preventing harassment of other students.

In its 2008 publication, “Sexual Harassment: It’s Not Academic,” the OCR listed three factors that must be weighed against the victim’s request for confidentiality in light of the school’s “responsibility to provide a safe and nondiscriminatory environment for all students”:

  • seriousness of the alleged harassment;
  • age of the harassed student; and
  • other complaints that the same individual has harassed others.

Additionally, state or local laws may require schools to report incidents to the police. In addition, the April 2011 “Dear Colleague Letter” included a fourth factor that must be weighed against the victim’s request for confidentiality: “the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an ‘education record’ under [FERPA].” The bottom line is that the victim should be told if the school cannot ensure confidentiality.

The OCR’s latest official word on victim confidentiality is found in the Resolution Agreement between the OCR and the University of Montana. As part of that settlement agreement, UM adopted a policy with “an assurance that the University will keep the complaint and investigation confidential to the extent possible.” Below is UM’s policy protecting victim confidentiality:

UM’s Policy 507 – Title IX adopted May 25, 2012

IV. Confidentiality of the Alleged Victim:

Student confidentiality will be respected to the extent possible. Even if the alleged victim requests confidentiality or asks that the complaint not be pursued, a campus is required to:
A. take all reasonable steps to investigate and respond to the complaint to the extent possible consistent with the alleged victim’s wishes;
B. notify the alleged victim that the failure of the alleged victim to pursue a complaint may limit the campus’ ability to fully address the matter; and
C. report the incident or assault to local law enforcement authorities if a health or safety emergency as defined by state or federal law is found by the campus to require such reporting.

Summary

To summarize, these are the essential points that college employees need to know about a victim’s confidentiality:

  • if you expect to or do receive information about sexual assault, explain that you need to make a report to the school’s Title IX coordinator
  • maintaining confidentiality may limit the school’s ability to fully respond to the alleged assault
  • students who desire a confidential conversation should meet with a counselor or other confidential resource
  • if individuals prefer no action be taken at that time, let them know you will share their preference with the Title IX coordinator
  • explain to the victim that their request for confidentiality will be respected to the extent possible, however:
  • the school must respond to sexual assault effectively and prevent harm to other students
  • the accused student may have a right to receive information about the allegations if it is included in the school’s education records

Finally, if disciplinary action is not possible because the victim insists on confidentiality, the OCR says the school “should pursue other steps to limit the effects of the alleged harassment and prevent its recurrence.” Those “other steps” are education and prevention, such as defining sexual misconduct, deciding what the school’s policies and disciplinary procedures are, and possible sanctions for violating the school’s rules of student conduct.

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