OVC Provider Forum Transcript

Responding to Confidential Victim Disclosures on a College Campus
Stacy Malone, Lindy Aldrich  -  2015/9/16
The college attorney for Title IX told the school that we could not disclose about a Title IX crime on campus. As deputy coordinator, I am concerned that the rumor mill is worse than a general statement made to the campus community and non-disclosure of campus crime is not in compliance with Department of Education. How do the Title IX coordinator & deputy coordinators disclose while maintaining confidentiality & remaining in DOE compliance? I am new in this position so help is appreciated.
1.  Lindy Aldrich
 From what I'm reading, I think this question is asking about either Timely Warning or Annual Security Reporting under the Clery Act? While I am not a Clery expert, I am co-presenting on a free webinar on 9/24 with the Clery Center on the intersections of Title IX and Clery on timely warning and confidentiality. I think this free webinar would be helpful in a full discussion on this topic. www.clerycenter.org
Are there any reliable and current statistics on the percent of students that report?
1.  Stacy Malone
 No. We don't think the Clery Act is meant to do that. What we do know that this is an underreported crime. A good resource to check for updated studies will be https://www.notalone.gov/data/
Do you have any suggestions on what an advocate might provide in writing to a victim that would differentiate the privileged confidentiality versus the advocate confidentiality?
1.  Lindy Aldrich
 These are really great and big questions. We are working with OVW to release several documents directly related to responsible employees and their obligations. I am hopeful these materials will be ready for release this fall. Check back on our website www.victimrights.org for more details.
2.  Sheetal Chib
 As a follow up question, is there a statute of limitations in terms of what a "responsible employee" has to report to the Title IX Coordinator? For example, if a student discloses a previous sexual assault incident in a course paper or presentation, what are the legal ramifications for the faculty? Also how should we be interpreting the wording "should have known" that is part of the definition for responsible employees to report to Title IX Coordinators? I have noticed a lot of anxiety with staff and faculty regarding their reporting requirements on campuses.
3.  Lindy Aldrich
 Post 2 of 2. Don't forget that merely having privilege is not enough to claim it - the employee must be acting in that capacity with the victim (i.e. a professor who happens to be a therapist and gets a disclosure is not able to claim privilege if they are not acting as that victims' therapist) Then I would list those who have been deemed as confidential -- some campuses have called this "exempted from Title IX reporting" instead of confidentiality if you're concerned about the connotation -- and explain that their status does not have any of the same protections as the privileged group, but for reporting purposes on campus, neither privileged or confidential employees are required to report to the Title IX Coordinator.
4.  Lindy Aldrich
 Post 1 of 2. In our experience, students (of all ages) do not understand the important distinctions between a "private" conversation and one that is not. Often victims are not aware that they even HAVE the option to speak to anyone confidentially. My first suggestion is to clearly communicate that students have options - preferably visually and simply. Some institutions have used color coding (i.e. this group is green = private). As for how to communicate privilege, I would suggest that some professions have a higher level of privacy protections under your state laws and then I would list all the folks on your campus who have this designation.
With an administration who is hesitant to grant confidentiality to anyone who does not have privileged confidentiality, are there successful strategies that can be used to suppress that heartburn? The fear is that while we may say the advocate is confidential, they could still be subpoenaed.
1.  Stacy Malone
 If the concern is that the institution cannot prevent a victim’s records from being subpoenaed, in my opinion, the best solution is to provide the victim with as much information as you can beforehand so their choice is as informed as possible. Often, victims reach out to confidential resources in an effort to access medical, mental health or other services in order to stabilize their lives, and are not in an emotional place to handle a Title IX investigation, which would be triggered by speaking to a responsible employee on campus. If they are informed that the confidential advocate can provide/discuss options on and off campus without triggering an investigation, but could be subpoenaed under state laws at some future date, it allows the victim to make a choice at that point.
2.  Kate Rohdenburg
 We signed an MOU for our independent community program to provide the confidential advocacy on campus. We already have 40 years of experience running the 24-hour crisis line and supporting survivors through the variety of institutions that they participate in, now we will also have open hours on campus and an advocate embedded in the institution to support students, staff and faculty with the entire organization to back them up.
Could you speak to best practices or offer any recommendation's of things to consider when local rape crisis programs want to formalize a process within their SART protocol to include campus/university. (Avoiding violations, supporting the agencies in the partnership etc.) Also, what issues if any could arise if campus police are also city police who have a substation on campus.
1.  Colette Laakso
 Could you please notify me as well as to what the best practices are being considered?
2.  Stacy Malone
 Thank you so much for your question Charnessa. We would like to check in with one of our colleagues and email you directly with our thoughts. Thank you for participating in the forum!
If a campus has a formalized process within a community coordinated response team that does team case review, what are things to consider when discussing IX cases in that space?
1.  Lindy Aldrich
 Just a quick point that depending on the multi-disciplinary ethical rules for the folks in the room, ie therapists, doctors, a confidentiality agreement may not resolve all of their licensure requirements.I recommend having a discussion about those requirements and then trying to avoid them as much as you can.
2.  Stacy Malone
 Post 2- Second, if law enforcement participates in this case review, and the victim in the Title IX case does not wish to proceed with a criminal complaint, this discussion could trigger an unintended law enforcement response. This is very specific to state laws. Last, if the victim shared their information with a privileged or confidential employee at your institution, I would want a detailed discussion with the victim about the persons present and what types of information would be discussed before bringing up the case. In general, even without confidentiality, I would want a victim to understand who knows what about their particular case.
3.  Stacy Malone
 Post1- I’m making an assumption about the word “community” to mean that other non-campus folks are a part of this case review? If so, I think you would be prevented from speaking about this case for a couple reasons. One, FERPA will not allow disclosure of any identifying information about the students involved, so be very careful about what information you discuss as certain characteristics can be very identifying depending on your specific community.
4.  Sheetal Chib
 In conversations with a college in our service area, we talked about having participants sign a confidentiality agreement to formalize that all cases discussed in the room should stay in the room.
When a third party comes forward with information on sexual harassment, does the name of that third party ever have to be disclosed?
1.  Lindy Aldrich
 The lawyer answer is "it depends"! If the Title IX complaint about sexual harassment leads to a full hearing or investigation against another student/employee, fairness would dictate that the accused student/employee be allowed to respond to the complaining party. If the complainant doesn't wish to proceed to a hearing or investigation, I could envision that the accused student or employee would not have to be alerted to the identity of the complainant.
Important links we want to be sure you have at your fingertips (post 1 of 2): Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 – 1688): http://www.justice.gov/crt/about/cor/coord/titleixstat.php Department of Education, Office for Civil Rights Title IX regulations (34 CFR 106): https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html 2011 Department of Education, Office for Civil Rights Dear Colleague Letter (explicitly clarifies sexual violence as a Title IX issue): http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf 2014 Department of Education Office for Civil Rights Questions and Answers document (gives more specific guidance on Title IX and sexual violence): http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
1.  Stacy Malone
 Add'l Info: 2001 Department of Education Title IX Guidance http://www2.ed.gov/about/offices/list/ocr/docs/shguide.html 2015 Department of Education Dear Colleague Letter http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201504-title-ix-coordinators.pdf Violence Against Women Reauthorization Act of 2013 regulations (addresses issues of stalking, dating, and domestic violence on campus - section 304): https://www.federalregister.gov/articles/2014/10/20/2014-24284/violence-against-women-act FERPA, 34 CFR Part 99 (privacy laws): http://www.ecfr.gov/cgi-bin/text-idx?rgn=div5&node=34:
How does the actual Victim of Crime ACT fit in with confidential or non confidential victim disclosures re: the crime victims’ rights, to prosecution, courts, and corrections?
1.  Stacy Malone
 Thank you so much for your important comments. As you know, the campus process and criminal process are different systems with different standards and different procedures. Increasing access to accurate information for student survivors will allow them to make an informed decision to engage in the campus and/or criminal process.
2.  Colette Laakso
 I am referring criminally. As from my experience I am aware some campuses have gone to great length to avoid any type of disclosure of SA, keeping the crime itself confidential with no consequence of criminal charges or prosecution.
3.  Stacy Malone
 Hi Colette, Do you mean VOCA? The criminal justice system and the civil system are different and work independently.
4.  Charnessa
 Great question. VAWA forensic compliance and alternative reporting options come to mind.
Hi my question is do you think the campus as a whole discredits the victim if they remain anonymous versus coming out with their story?
1.  Lindy Aldrich
 It depends on the institution. I have seen some institutions respond well to anonymous reports by taking specific action such as improved training and prevention efforts, while others have not paid enough attention to anonymous reports. Ultimately, the VRLC believes it is for the victim to decide what is the best for their lives.
What legal protections do student staff (e.g. graduate assistant) and non-clinical staff (e.g. front desk) have if they are working in a shared space with a confidential victim advocate in a co-location model (i.e. advocate employed by the rape crisis center is housed on campus)?
1.  Stacy Malone
 Here you go: http://www.confidentialityinstitute.org/
2.  Sheetal Chib
 Thank you! Do you have a link to the Confidentiality Institute resource?
3.  Lindy Aldrich
 Under Title IX, there is a voluntary option for institutions to deem student staff as confidential. I wish that more institutions would avail themselves of this to encourage victims to seek services. If you're lucky enough to be in a state that has advocate privilege, front desk and other staff could be subsumed under the privilege depending on who is supervising. Check out the Confidentiality Institute's chart on state-by-state privilege to learn more.
Have you seen this new resource? Worth checking out. Changing Our Campus – resources for addressing sexual violence, domestic violence, and stalking http://changingourcampus.org/
Could you please discuss how confidentiality applies to American Sign Language (ASL) interpreters employed by the higher ed institution?
1.  Stacy Malone
 Hi Ken, This is good question. As you many know there are specific rules around this and how they become privileged when working with lawyers. I recommend reaching out to the Vera Institute. http://www.vera.org/
Safety is a priority for campus sexual assault victims. Here are two free resources: (1 of 2) Victim Rights Law Center and MSCASA’s Guide to Safety Planning with Victims of Campus Sexual Violence https://victimrights.org/sites/default/files/VRLC%20MSCASA%20Safety%20Planning%20with%20Campus%20Sexual%20Assault%20Victims.pdf
1.  Stacy Malone
 Post 2 of 2. Helpful campus safety materials. Victim Rights Law Center and MSCASA’s Guide to Drafting, Implementing and Enforcing No Contact Orders https://victimrights.org/sites/default/files/VRLC MSCASA NCO 2015.pdf
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