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

[Brett Sokolow <>]

Hello Wise Colleagues,

As many of you have noted, the Title IX DCL has created complicating implications for survivor speak outs, such as Take Back the Night events.  Administrators who gain notice from these events may have to act upon them.  So as to empower as much survivor control as possible, ATIXA has been asked by its members to create a handout of some guidelines for events that could avoid an unintended and unwanted domino effect.  The balance between safe speech and chilling speech is a hard one to achieve well, so I thought I would turn to all of you, who have a better ear for the needed sensitivity than I might have.  Here is my draft below.  Feel free to suggest additions, changes, and/or otherwise tear it to shreds.  If you don't like the idea, I'm sure you will say so, but my hope is to make the document one that we can all use, and that includes content that is more helpful than not providing any guidance would be.  

Some Guidelines for Safe Speak Outs:

None of these suggestions is intended to discourage or chill someone from sharing their story.  But, the University wants to help ensure that sharing of often intimate and sensitive information is done safely, and without unintended repercussions for the speaker, their friends and supporters.  The following are suggestions:

1.  Survivors and allies are encouraged to share personal stories in a safe space, but anyone may attend a speak out, so don't assume that everyone in the audience is an ally.  

2.  Reporters may be present.  If so, ask or tell them your comments are not for the record. Event organizers should identify the presence of reporters to the audience if known, and should establish rules for the use of recording devices, pictures, etc.

3.  Stories shared at a speak-out are not confidential.  Students in the audience should be encouraged to maintain the speak out as a safe space, and should be asked to maintain discretion over the information they hear, should not repeat it, post online or gossip about it.  If administrators are in attendance, they may need to act on what they hear.  To avoid having actions taken that speakers do not want, speakers are encouraged to avoid personally identifying details about themselves, perpetrators, witnesses, specific locations, specific dates, etc.  Administrators are encourage to speak first to show they are allies, but then to leave, to allow a safe space.

4.  Survivors need to be aware that accused individuals can be willing to bring lawsuits for defamation to try to silence their victims.  We don't want that to happen, and so encourage speakers to understand that their story is theirs to tell, but accusations can open the door for liability that is unintended.  Tell the truth, because truth is a defense to defamation, but be aware it may be a truth that the speaker will need to prove in court. Don't accuse someone of criminal acts, unless you have in fact filed a complaint with the police.  To accuse someone of a crime publicly without bringing charges can be defamatory.  For example, "Joe raped me" can be defamatory, but "Joe then had sex with me without my consent" is unlikely to be defamation because it is opinion and is the survivor's story.  Similarly, "Joe is a rapist" can lead to lawsuits unless Joe has in fact been found by the courts to have committed the crime of rape. Avoid talking about an identified perpetrator's reputation or character unless you can prove the assertions. In summary, accusations that personally identify a perpetrator that may be unprovable can lead to potential lawsuits.  It does not mean the speaker was not victimized, but what happened and what can be proven are often different.  keep in mind that repeating someone else's defamatory statements publicly can make you liable for the defamation as well.

5. Speakers may want to disclose information learned during campus grievances and hearings.  Again, a survivor's story is his or her own, and stories can and will be shared at speak outs. The outcomes of campus hearings and investigations can be shared by a survivor publicly under federal law, but some details about accused students  and/or witnesses that are revealed in hearings and related investigations may be a part of the accused student or witness' education record, and are therefore protected by FERPA, the privacy statute.  Survivor's records are protected by this law, too, if they are students. If a speaker was advised by the University in a hearing or investigation interview that certain details or information was to be kept confidential under Title IX, the speaker is discouraged from sharing that information publicly in any way, including at a speak out, or may wish to check with administrative officials or an advocate first, if they are unsure about what information is releasable. 

 

6.  Speakers will want to consider whether speaking out with specific details might prompt the person they are accusing to decide to speak publicly in their own defense, and whether that will be a desired effect.  

7.  Finally, speakers should be aware that speaking out might prompt retaliatory acts from the accused individual. Speakers should know that the University has a zero tolerance policy for retaliation, and that the policy protects third-parties from retaliation as well. If you are subject to any form of retaliation, please notify appropriate campus authorities immediately, who will take the retaliation report seriously and act upon it promptly.

8…

  

Regards,
Brett A. Sokolow
Brett A. Sokolow, Esq.
Attorney-at-Law

Chair, The NCHERM Group (www.thenchermgroup.org)

Managing Partner, The National Center for Higher Education Risk Management (www.ncherm.org)

Executive Director, The National Behavioral Intervention Team Association (www.nabita.org)

Executive Director, The Association of Title IX Administrators (www.atixa.org)

20 Callery Way 
Malvern, PA 19355-2969
Tel. (610) 993-0229 
Fax (610) 993-0228


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