Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

["Aline Jesus Rafi" <>]

Thank you so much to Brett A. Sokolow, JD for sending me the information 
below.

If anyone else has additional information please let me know.
-------------------------------------------------------
Aline Jesus Rafi, MA
Health Educator
Sexual Assault Prevention Education and Response
Emory University Student Health Services
1525 Clifton Road
Atlanta, GA 30322
Phone: 404-727-1514
Fax: 404-727-9159
Email: 

----- Original Message ----- 
From: 

 
To: 

 
Sent: Thursday, October 18, 2007 4:37 PM
Subject: Re: Limits to Confidentiality


Hi Aline,

Hope this helps:

BEST PRACTICES:  WHAT DO YOU DO WHEN… A STUDENT REPORTS A SEXUAL ASSAULT BUT 
THEN ASKS THAT NO ACTION BE TAKEN?

 

This is a complex issue that is informed by two federal laws, student affairs 
best practices, good victim services, the Department of Education, and 
negligence law.  While no one perspective dictates how we address reluctant 
victim situations, taken together, a cohesive approach can be created.  

 

Clery First

 

Let’s start with the Clery Act, and its role in this issue.  The Clery Act is 
an absurd law, in its execution.  It tells colleges to collect crime reports 
from campus security authorities, which it defines as any institutional 
official who has significant responsibility for student and campus 
activities.  It then splits hairs to tell us this will include some faculty 
but not others.  It includes student services personnel, but not the support 
staff talking with the student in the waiting room while they wait to see the 
Dean.  It does not include counselors, but may include a non-counselor 
administrator who runs the counseling center.  These are not reasonable hairs 
to split on a college campus if you are interested in accurate compliance.  
Responsibilities of college employees are constantly changing.  A faculty 
member who assumes a role as a student organization advisor mid-year may not 
receive training on reporting until the following year, depending on your 
training schedule.  Who is on the list and who is not on the list of mandated 
reporters for Clery is a moving target that is not easy to hit.  It is just 
easier (and very reasonable) to tell ALL institutional employees that it is 
part of their job to report all crimes about which they become aware within 
24 hours of becoming aware.  That way, nothing slips through the cracks.  
This includes reports of sexual assault made in confidence, because nothing 
in the Clery Act requires the revelation of personally identifiable 
information.  Counselors, clergy and medical services personnel can complete 
a report without violating their professional ethics.  

 

Once you have created an all-employee reporting requirement, employees can be 
trained that when a student reports sexual assault, they cannot promise 
confidentiality, and need to make that clear to the student who comes to them 
(unless of course, you are among the limited number of university employees 
who can actually promise statutorily or ethically-conferred confidentiality). 

 

Best Practices Tip—Explain This to a Victim as the Difference Between 
Confidentiality and Privacy:

 

“Thank you for coming to talk to me about such a serious issue.  I want you 
to know that we are going to do all we can to help you.  I need to make clear 
that I am not someone who is able to maintain the confidentiality of what you 
share with me.  I can and will protect your privacy, and will only share your 
information on a need-to-know basis with a small group of key administrators. 
 We will make every effort to respect your wishes as far as how we respond to 
your report.  If you desire a confidential conversation, I can take you to 
the counseling center, or help you to set up a meeting with one of our campus 
staff members who is a confidential resource.”

 

Acting on the Reports You Receive

 

A predicate to liability under Title IX is notice to campus official(s) who 
have remedial authority to address gender-based discrimination (in any of its 
forms, including sexual violence).  Let’s assume for purposes of this article 
that you are such an official.  Once you have established a campus-wide crime 
reporting network as discussed above, you will hear more often about campus 
crime generally, and you probably will receive more sexual assault reports, 
specifically.  Not all of these reports will include personally identifiable 
information, but some will.  Once you receive a report, various laws govern 
your response and you MAY have to provide some or all of the following.  

 

After each item listed below, the law that mandates or influences it is 
identified:

 

·       Crime statistic (Clery)

·       Interim suspension (tort law – negligence)

·       Timely warning (Clery)

·       No contact order (student affairs best practice)

·       Investigation (Title IX)

·       A prompt and equitable resolution (Title IX)

·       A hearing (state/federal due process or contract law)

·       Sanctions (Title IX, tort law – negligence, due process)

o      To bring an end to the discriminatory conduct; and

o      To take steps reasonably calculated to prevent the reoccurrence of the 
discriminatory conduct

·       Remedies (Title IX)

o      To restore the victim, as much as possible, to his/her pre-deprivation 
status and/or undo the effects on the victim of the gender-based 
discrimination they have experienced.

·       Notice of outcome (Clery Act)

·       Appeals (contract law and Title IX)

·       Post-sanction enforcement (Title IX, tort law – negligence)

·       Follow-up to determine if remedies are effective (Title IX)

 

Upon receiving a report, whether anonymous or not, you will need to determine 
if the alleged victim wishes to make a complaint.  If so, you will follow the 
proper procedures on your campus for making a complaint and begin the 
investigation process.  If not, you will need to find out why not.  Perhaps 
the assault occurred long ago, or off-campus. Perhaps the victim is going to 
the police to pursue criminal prosecution. While you may be able to determine 
directly why no formal action is requested by the victim, you may have to go 
through the employee who initially received the report before it was passed 
along to you.  They may be able to dialogue with the victim to find out 
reasons why the victim wants no action taken.  I think you or the employee 
who is in contact with the victim should try to problem-solve with him/her 
any impediments to filing a complaint.

 

Best Practices Tip:  Convincing a Reluctant Victim

 

I think we should make a good faith effort to persuade (not pressure) a 
victim to make a formal complaint.  Often, victims are reticent to pursue a 
campus hearing because they fear for their privacy, they blame themselves, 
and they don’t want to subject themselves to a process they fear will be a 
secondary victimization.  I think we can overcome some of these reasons for 
hesitation.  We can make sure that the victim understands how well-suited the 
campus conduct process is to meeting the needs of many victims.  I think we 
should explain that the campus process is private, that resolution is quick 
(can we shoot for 30 days?), that we use a standard of proof (more likely 
than not) that makes it twice as easy to prevail in a campus hearing than in 
a criminal trial, that we provide victim-friendly accommodations, such as the 
right to an advisor, to testify from behind a screen or by closed-circuit, 
and that we actively prohibit evidence of a student’s irrelevant sexual 
history or character.  I also think we need to be clear that we are not going 
to throw the book at a victim for his/her own policy violations, if they 
decide to make a complaint.  It is also worth it to explain to a victim that 
perpetrators recidivate, and if left unchecked, they may assault again and 
are likely to make someone else feel the way they now feel.  Their action in 
filing a complaint can help to prevent future victimization, and I think we 
should at least get them thinking about their duty to other potential victims 
and members of their community.  Once we have said our piece, though, I think 
we need to back off and let them choose for themselves what is in their best 
interests.

 


The Requirements of Title IX

 

If you are not successful in encouraging the victim, directly or indirectly, 
to file a formal complaint, your legal duties are not over.  In fact, they 
may just be starting.  Once you have actual notice under Title IX, your duty 
to investigate the report is absolute.  There are no exceptions.  Yet, 
investigation is a very broad term, and may indicate merely a preliminary 
inquiry, or it may include a much more elaborate inquisition into the facts.  
With an anonymous report, your ability to investigate is more limited.  You 
would satisfy your legal duties of due diligence by checking the report 
against other recent anonymous and formal reports, to determine if a trend or 
pattern may be apparent.  If so, you might decide to take some action based 
on the composition of assaults, rather than on just the one anonymous report 
you have received.  You may even gain information on repeat perpetrations in 
a single location, and this may allow you to target a high-risk population or 
location with enhanced enforcement, patrols, lighting, cameras, timely 
warnings, etc.   

 

In addition to the duty to investigate, you may have a duty to attempt some 
form of remedial response, even to an anonymous report.  For example, if you 
learn of multiple perpetrations by the same individual (anonymous reports 
sometimes include the name of an alleged perpetrator or enough detail for you 
to figure out who the alleged perpetrator is), or multiple perpetrations at 
the same event, you may decide to alert the alleged victim to this 
information to see if this makes him/her more willing to file a formal 
complaint, or you may decide to launch an investigation into the campus event 
that produced multiple reports (such as a party at which multiple drinks were 
laced with GHB).

 

Where a victim comes to you to make the report directly, your duty to 
investigate is the same, but is enhanced by the additional information you 
may have by receiving the report directly rather than through a third-party.  
Assume that the alleged victim, as with the anonymous victim, asks that you 
take no action.   At this point, one of the purposes of the investigation is 
to allow you to determine whether you can honor the victim’s wishes.  OCR 
tells us that we should make every effort to do so, but not at the expense of 
compromising our duty to provide a prompt and equitable remedy under Title 
IX.  

 

Negligence

 

Tort law plays a role here too, as we must make a determination whether the 
report gives us notice of foreseeable future harm.  If so, our legal duty is 
to act to warn (and perhaps protect) foreseeable victims from that known 
potential for harm.  If, as a result of our investigation, we reasonably 
believe that there is no continuing threat of harm to the alleged victim, or 
to any member of our community, we have no legal obligation to pursue the 
allegation through a hearing.  We may, however, have other equitable duties 
of remedy, such as a need to provide an education program to the community, 
or to a target population, to post prominent bulletin board information about 
the issue, or to give a clear warning without singling out any particular 
individual by enlisting a coach, RA, greek advisor or student organization 
advisor to raise the issue indirectly at an appropriate meeting.

 

If you decide not to have a hearing,  it would be wise at such a point to 
have the alleged victim sign a statement making it clear that s/he has 
requested that you take no action, and that they understand they are 
preventing you from taking future action by failing to cooperate in the 
investigation.  If they ever make a Title IX claim against the institution, 
you attorneys can use this waiver to help them to claim an estoppel defense 
(it is unfair for a victim to sue you for not taking action when you decided 
not to take action at his/her request and instigation).  Of course, any 
waiver should make clear that if the alleged victim ever changes his/her 
mind, you stand ready to re-open the investigation, to the extent practical 
and possible.

 

Where the results of the investigation do not give you reasonable assurance 
as to the safety of your community, you have a duty to act irrespective of 
the victim’s wishes.  You cannot force them to participate in a hearing, but 
you should initiate one with the institution as complainant, and you may use 
written statements of the victim, statements by the victim to witnesses, 
police and medical records as needed in lieu of participation by the alleged 
victim as complainant.  

 

Each complaint is governed by the principle that you take it as far as you 
need to.  If you commence a preliminary inquiry, and that inquiry leads to 
further suspicion, you will broaden the inquiry to a full-fledged 
investigation.  An investigation itself, even one that clears an accused 
student, is a response under Title IX.  It may be all that is required, 
depending on the findings.  If you are challenged under Title IX by a lawsuit 
or OCR investigation, you may be accused of deliberate indifference.  One of 
the best ways to prove that you were not deliberately indifferent is to show 
that a comprehensive civil rights investigation was completed and documented. 
 

 

All information offered is the opinion of the author, and is not given as 
legal advice.  Reliance on this information is at the sole risk of the 
reader.  


Brett A. Sokolow, JD
Special Advisor to the United States Air Force Academy
Special Counsel to the VP for Student Affairs, Saint Mary's College (IN)
Special Counsel to the President, Hobart and William Smith Colleges
Special Counsel for AOD Issues, Barton County Community College
Special Counsel for Student Conduct Issues, Warren Wilson College
Special Counsel to the Dean of Students, Hendrix College





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From: "Ben Atherton-Zeman - Feminist,
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Hello to Gillian Greensite - thanks so much for your posting. 

You said: "I have been doing rape prevention education in a college setting 
for 
28 years and yes, I have observed the use, or mis-use of the term 
rape to include those situations that are clearly not. And yes, this 
is perpetuated by many in the anti-rape movement."

Do you really think that "many" in the anti-rape movement mis-use the term in 
this way?  Can you elaborate?

thanks!  

Until the violence stops, Ben.  

Ben Atherton-Zeman, Acton MA USA
Actor, Comedian, Feminist and Husband
Presenting a One-Man Play: "Voices of Men," www.voicesofmen.org (video clips 
take a second to load)
Booking information: 978-263-3254

Quote of the Month, October 2007, National Domestic Violence Awareness Month:

"I said 'Excuse me, I OWE you a job??' He said, 'Yeah, 'cause you wouldn't 
have that job if it wasn't for me.'

Typical abuser thinking. I had started and graduated college, had run a 
non-profit for 4 years, and was the principal author of the child abduction 
statute, amongst other things, but I got the job because of him? 

I replied 'They didn't hire me because you beat me, they hired me because of 
what I've done since then.'" - Jan Russell