Two Ways to Help Victims (Guest Post by Jennifer Lackey)
Jennifer Lackey is professor of philosophy at Northwestern University. She works mostly in epistemology, with an emphasis on social epistemology. She is the author of Learning from Words: Testimony as a Source of Knowledge (OUP), has edited collections on the epistemology of testimony and disagreement, and has written very many articles on these and other topics. In the following guest post*, she puts forward two proposals for how to help victims of sexual assault or harassment in academia. She hopes that her proposals bring about some real good for these victims, and welcomes discussion of them.
Two Ways to Help Victims of Sexual Assault or Harassment in Academia
It is not a secret that colleges and universities have been plagued by cases of sexual assault and sexual harassment. Too often, students find themselves victimized by members of their own communities, and we as faculty who are committed to fostering a safe and supportive learning and working environment must find constructive ways to respond.
Why there are these problems, and why they seem to occur with frequency in the academic world, are deep, important questions that I hope we will continue to have conversations about. But what I want to do here is to suggest two concrete proposals for moving forward.
Being sexually assaulted or harassed is a traumatizing and isolating experience, and students who suffer at the hands of members of their own communities often face a further traumatizing choice: be quiet and continue to share classrooms, colloquia, and departmental parties with those who have victimized them, or come forward and face a myriad of possible consequences, ranging from having their private lives subjected to public scrutiny to outright rejection by their peers.
Despite the risks, some students do report the crimes to officials at their institutions, and some do so precisely because they believe that it is the morally right thing to do. Reporting such incidents is a courageous step in protecting oneself and others from being harmed. There is, however, one possible consequence of coming forward that is particularly pernicious: this very act of seeking justice and fostering safety might itself result in further harm to victims of sexual assault and sexual harassment, by rendering them vulnerable to lawsuits brought against them by the people who have already victimized them.
Faculty members are employees of colleges and universities and, so long as they are acting within the scope of their employment, they are indemnified by their employers—that is, their employers will cover legal expenses and damages that may arise in the course of their fulfilling their professional obligations. However, students, both undergraduate and graduate, are not employees and may not automatically enjoy this protection. While some institutions readily agree to defend and indemnify students who face legal action against them, absent such indemnification, a student may face significant legal expenses in defending against a lawsuit filed by someone who typically has greater financial resources. This very possibility can have a chilling impact on our communities, for it provides an extremely effective means of silencing victims of sexual assault and sexual harassment.
Here is where my first proposal comes in: should a student report to you that she has been victimized by one of your students or colleagues, fight aggressively on her behalf for the college or university to indemnify her.* You are in a far more powerful position than she is in, and you have far more resources to appeal to in negotiating and advocating on her behalf. Tell your institution how it is in its own interest in the long run to cultivate an environment in which students can seek justice and safety for themselves and others without the added risk of financial ruin. You can assure them that indemnifying students in this way is not without precedent.
In addition to the issue of indemnification, it is also important to recognize that lawsuits often force the defendant into silence. This silence, and the social isolation that comes with it, can be emotionally devastating. My second proposal, then, is that we, as members of the academic community, reach out to victims of sexual assault and sexual harassment, to let them know that they do not stand alone and that their position in our profession is secure. If you believe a victim, tell her that you do. If you feel that she suffered an appalling violation, convey this to her. If you know of a professional opportunity for which she is well-suited, invite her. Send her an e-mail, post a collective letter of public support, include her in academic discussions and gatherings. In caring for those who have already taken the courageous step of standing up for justice, we will not only make it easier for future victims to find their voices, we will also foster a community in which our most vulnerable members can flourish.
* Although I use the feminine pronoun here, these issues apply to all victims of sexual assault and sexual harassment.
Thanks so much for this incredibly helpful and informative post, Jennifer.
Just some background context that I thought might be worth adding, since I think a lot of people might not know about it (I certainly didn’t know it until recently). If you work at a US university and a student comes to you with a report of sexual misconduct, you are *legally obligated* to pass the information on to your university *whether or not the student wants you to do this*. The student may well have confided in you simply because they trust you and they needed to talk to someone, but then specifically ask you not to tell anyone else or make an official report. Doesn’t matter – you’re still supposed to report it.
This can be incredibly painful for victims who have already had their wishes and their autonomy undermined in the worst of ways. My own practice – for whatever this is worth, ymmv – has become to stop anyone who seems about to confide something serious as soon as they start talking and give them two pieces of information:
(i) I have to report any cases of sexual misconduct I know about
(ii) There are other people they can talk to – e.g., university counseling services – who aren’t bound by the same rules
Then I ask them if they want to continue talking to me.
See section D (‘Responsible Employees and Reporting’): http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
Are you sure you have the reporting requirements correct? The section you refer to in your post seems to discuss reporting requirements in response to reports of “sexual violence” rather than “sexual misconduct” and in the report “sexual violence” is defined so as to distinguish it from other categories of sexual misconduct.
Additionally, the reporting requirements discussed here are said to attach to just those employees labeled as “responsible employees” rather than to all employees. Classification as a “responsible employee” for purposes of these requirements does not automatically follow from being an employee.
At my institution *all* faculty are responsible employees. This seems to be a change this year, as far as I can tell, on the guidance of the OCR. Thus I follow the same practice as magicalersatz.
This is in fact the case at my institution (by university statute, we must report all allegations of sexual assault or sexual abuse), which can result in either a breach of trust (if the student wished for confidentiality) or in silencing of victims (in case a student knows of this statute, and wishes for privacy). Though there are some exceptions to this rule (e.g. mental health services retain confidentiality), it is not always clear to faculty or students what these exceptions are (I’m a graduate student, and it’s not certainly not clear to me: I’ve heard a few conflicting explanations).
We are lucky to have a Domestic Violence & Sexual Assault resource center in town, and state law guarantees strict confidentiality to all employees and volunteers at that center. In fact, the center’s confidentiality policy overrides the university’s (who states that employees are always “on duty” when it comes to reporting sexual assault) in cases where university employees volunteer at the center.
As such, one thing to do is see whether there are SA or DV/SA resource centers in your area, and to call them and make sure that they have legally backed confidentiality. If so, sharing their hotline number (alongside an explanation of its confidentiality policy, with contrast to your university’s policy) with students and colleagues is a good way to go. That’s what I do in my classes, though am not sure whether I’ll tell my students that I volunteer in the local resource center (not sure if it will matter, or worse, if it will deter students from calling or making use of the center’s services).
FYI:
National Sexual Violence Resource Center: http://www.nsvrc.org/
It is also worth pointing out that even if a faculty member is required to report an incident of sexual assault or sexual harassment to university officials, the student is not thereby compelled to cooperate with any resulting investigation. There might be very good reasons for the student to cooperate, but she should not feel as though her autonomy about how to proceed has been taken away by talking to a mentor.
This is a really fantastic post. Thank you!
RE: obligation to report
At every institution I have attended and/or been employed, the administration interprets the clause linked to above as applying to all employees, including graduate student assistants and paraprofessionals like undergraduate resident assistants.
Thanks for the excellent post!
As others have noted, universities define who is a “responsible employer” – and all faculty are defined as mandatory reporters. The only exceptions are campus counselors and, sometimes, directors of Women’s Centers. Exemptions are not granted, even for faculty members who request them.
Given this mandate, I suspect some faculty members might subtly encourage students to not divulge information about sexual violence, so that the faculty member is not required to report. But as Jennifer indicates, there are good reasons to make formal reports. That being said, before deciding whether to dissuade or encourage a student to report, it’s worth knowing the process of what happens to students at your university when they do report. This varies a bit from one university to the next, so find out, but the point of reporting is not necessarily to press charges (though that is always an option). The point is to provide resources to help the student deal with the situation – such as finding a new living situation, dropping a class because of contact with the alleged assailant, etc. — and to track real numbers of sexual assault. Reporting does not mean that the police or the student’s parents will automatically get involved. The more information faculty members have about their university’s particular process (such as who the initial point of contact is, and what questions the student will be asked), then the more they can advocate for their students, and make “the system” work. While I’m not a fan of mandatory anything, and have seen universities bungle sexual assault cases, the number of sexual assaults reported each year on college campuses are abysmally low. This further masks the problem of sexual assault. With the new reforms colleges are making, hopefully reporting will not be a bad experience for the student, and we can be better advocates for victims of sexual assault.
In cases where a lawsuit has been filed, it is important to keep in mind that coverage of the event in the media (if it receives any) is very likely to be largely derived from the lawsuit itself. This means that the person who files the lawsuit has not only the advantage of greater financial resources, as Jennifer mentions, but also the advantage of speaking first. What appears in the lawsuit as it is initially filed may well be incomplete or inaccurate, and it may have been crafted so as to serve the interests of the perpetrator. Typically, the defendant will then be forced into silence out of fear that any public statements on her part will complicate the legal case that is now her most pressing concern. The lawsuit may, of course, be dismissed if it doesn’t have any legal merit. But, even in this case, the motion to dismiss does not take up factual matters—that is, the victim’s lawyer is required to treat every alleged fact in the perpetrator’s lawsuit as if it were fact indeed. The case can thus end without the defendant ever getting a chance to correct the factual record or defend her own point of view in a public way. In most cases, public attention will have already moved on to something else, and the public’s views may have become fixed by the initial lawsuit.
So, a further suggestion one might make here is to read news reports of sexual assault and sexual harassment that are grounded in the perpetrator’s lawsuit with a very critical eye. The fact remains that speaking out when one has been victimized is an extraordinarily painful and difficult thing to do. It is not undertaken lightly. (Research shows that the rate of false reporting for sexual assault is very low, in the range of 2-8%; see http://ndaa.org/pdf/the_voice_vol_3_no_1_2009.pdf). We as a community can help protect victims, and prevent further victimization, by giving them the benefit of the doubt in our discussions and in our own private beliefs.
CrimLaw et alia:
Currently the best general (non-university-specific) resource for answering questions about what Title IX requires, including who is a responsible employee, is the OCR’s 2014 Q&A document: http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf
On p. 15 of the Q&A, the OCR specifies that a responsible employee is any employee “who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty.” This concept is *broader* than the legal definition of a responsible employee. As the OCR notes in footnote 23 of the Q&A: “The Supreme Court held that a school will only be liable for money damages in a private lawsuit where there is actual notice to a school official with the authority to address the alleged discrimination and take corrective action. Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 290 (1998), and Davis, 524 U.S. at 642.”
Although the standard provided in the Q&A refers to “sexual violence,” not sexual harassment/misconduct, in a note the OCR makes it clear that the same standards apply to sexual violence and “other forms of sexual harassment.” And, in general, it doesn’t make sense to draw a clear line between the way we handle sexual assault and the way we handle other forms of sexual misconduct, given that in many cases it is not immediately clear whether the incident constituted assault (victims can be slow to reveal all the details, and sometimes the impact of trauma interferes with recollection of the details) — and, in general, responsible employees should not be the ones to determine what is and is not assault. As I’ve remarked elsewhere — see, e.g., http://feministphilosophers.wordpress.com/2014/07/26/a-reply-to-leiter/ — I think the focus should be not on whether there was penetration, or the particular nature of the harm inflicted, but rather the nature of the experience of the harm, and the degree to which an individual’s sexual autonomy is threatened or compromised.
In any case, the first of prong of the OCR’s characterization of a responsible employee seems clear, and since institutions have the ability to determine who they give the authority to take action to redress sexual harassment/misconduct, this prong seemingly provides an institution with some latitude to self-determine who is a responsible employee and therefore whose notice of an incident triggers the institution’s obligation to act.
There is less clarity around the second prong of the definition. On its face, the Q&A is specifying that a responsible person is someone “given the duty of reporting…to the Title IX coordinator.” This reference – “reporting … to the Title IX coordinator” – is pretty precise and could be read as suggesting that someone whose duty is to report misconduct, but not to the Title IX coordinator, is not a responsible employee. Later in the Q&A, however, there is a lengthy discussion regarding RAs (Resident Assistants/Advisors). In that discussion, OCR seems to say that an individual who has a duty to report misconduct of any kind that violates school policy (e.g., drug and alcohol violations, plagiarism, etc.), regardless of to whom they are obligated to report it (the Title IX coordinator or someone else), is a responsible employee. Many Title IX consultants (and therefore many universities) are reading this as implying that all faculty are responsible employees, whether or not the university has specified that this is the case. The courts have not yet weighed in on the question.
My advice to faculty is to play it safe: assume that you *are* a responsible employee and therefore a Title IX-mandated reporter. As magicalersatz indicated, it is wise to let students know whether you will be able to keep the information confidential. I’d also add that if you cannot promise confidentiality, it is also wise to make sure that you provide the student with full support — make a call or send an introductory email to counseling (don’t put the student’s name in the subject line!), explaining the urgency, with a cc: to the student, and/or walk the student straight to the counseling or other confidential services. I know of one case in which the faculty member did not do so, and the student, who did not understand the instructions to contact counseling, effectively felt that she had “tried” to report the assault the morning after to a professor, and was told not to report.
I wonder whether concerns about defamation lawsuits might be keeping philosophers from reaching out to sexual assault victims. I am not a lawyer, so I am not sure which statements might be defamatory. However, given what I do know about defamation, I don’t think there is any risk of defamation if one were to tell a student: (i) that if you find out her name, you will think of her as a philosopher, and not just as someone who was a victim of sexual assault.; (ii) that you hope she will not be driven out of the profession because of the assault; (iii) that you realize that she must be suffering greatly.
If you can manage to make it clear that you are offering an opinion, and are not attempting to state a fact, you can offer additional support. You might do that by saying, “If I were in your shoes, I think I would feel that a great injustice has been done.” Also, you might tell the student that, in your opinion, it was courageous of her to come forward.
If the victim is being prevented from telling her side of the story, perhaps because she is being sued for defamation, you might tell her that you wish you could hear her side of the story. You might even use the language of “silencing,” and tell her that you view what is happening to her as silencing, and that you wish that she weren’t being silenced.
Again, I am not an attorney. However, I think that anyone who does even a bit of research on defamation law will find that as long as it is clear that one is offering an opinion, and does not intend to make a statement of fact, one is protected.
What if you are in this situation: you have heard of a case of sexual assault, and you want to reach out to the student, but you do not know her name?
Anonymous at 11: Excellent question. You can reach out to her in public, to say that you’ve heard of the case, and that you want to provide support.
While discussion of who is/is not a mandated reporter is important and relevant to Jennifer’s post, the strength of her post is that she is calling on *all* of us to provide support for *all* victims of sexual misconduct — and most particularly for victims of sexual misconduct in philosophy, of course — by reaching across the walls of silence, to say: “please don’t leave (or please return!); we’re sorry for our silence in the past; we want to change our discipline and end the practice of tolerating sexual misconduct; sexual assault (including assault by an acquaintance) should not be a source of shame, any more than, say, theft of intellectual property is a source of shame; we understand that victims have nothing to gain and a lot to lose from reporting and therefore should treat reports very seriously.”
My two cents, anonymous, for whatever they are worth. I think it depends quite a bit on the situation, but if you’re in a position where you don’t know the student but you do know someone who does, you can use that latter person as an intermediary. Passing on messages of support, even indirectly, can be incredibly meaningful and helpful for victims. (I think people too often stay silent just because they feel awkward or don’t know what to say – and that silence can be hurtful.) You can always pass along your contact details and say that the student should feel welcome to get in touch with you but only if s/he wants to (no pressure, etc, etc.)
This is an excellent question. One suggestion is that if you know of members of the student’s support system who do know her identity, you might reach out to one of them to see whether the student would like her identity to be selectively shared.
magicalersatz, do you have in mind something like sending an email to the person in the support network and asking this person to forward the email to the student? To me, that seems like a good idea.
Yeah, Anonymous, sending an email that can be forwarded is exactly the kind of thing I had in mind. That way, the student can receive your message of support but it’s then totally up to them whether/when they get in touch with you. It might also be worth including a line in any such email that says that if they’d like to be in touch but would prefer that you be the one to make contact, you’d be happy to do this if they’re happy to share their contact details with you via the intermediary. Even if the student wants to get in touch with you, they might feel slightly awkward about being the one to initiate direct contact, especially if, e.g., you’re faculty.
Baron, thanks for highlighting the fact that it’s important to think about *why* a victim might report. (What does s/he have to gain? In most cases, absolutely *nothing.* What does s/he have to lose? In many cases, particularly cases in which there is a power differential, as in, say, faculty-student sexual misconduct, *everything.*)
One thing in connection with cases of sexual misconduct that I find maddening is the fact that we (myself included) find it important to study and report the rate of false reporting. We don’t, after all, frequently cite or discuss the incidence of false reports for petty theft. If someone says “my wallet was stolen,” we don’t wonder what the proof is, or whether they might have hidden the wallet and then made a false report.
This tendency to look for publicly accessible evidence or “proof” that the victim is in fact a victim can introduce a bias into both the discussion and investigation of sexual misconduct because it essentially makes us automatically grant more credibility to the suspect than the victim. This is particularly true if there are what are known as “red flags” in the case — e.g., the rapist is a stereotypical “nice guy” who doesn’t “look” like a stereotypical rapist (read: white, affluent, etc.).
Most of our colleagues in philosophy fit the “nice guy” profile. They’re not all nice guys.
Clearly the “red flags” are often grounded in our implicit biases — or even explicit biases — about, e.g., what sort of people engage in sexual misconduct, what constitutes sexual assault, etc.
We need to identify, name, and eliminate these biases.
Jennifer Lackey’s suggestions are great.
But shouldn’t we be pressing universities to adopt a uniform policy of indemnifying (those who claim to be) victims of sexual assault and sexual harassment who come forward, rather than indemnifying them on a case-by-case basis? The blanket policy would do more to encourage victims to come forward.
I asked an administrator at my university about instituting such a blanket policy, and I was told that it’s tricky because some accusers are dishonest and one doesn’t want to be indemnifying such people.
I fear that this attitude might be too common. The statistic Baron Reed cites is very helpful as a response. If one had a blanket policy of indemnifying people who claim to be victims, one would overwhelmingly be supporting honest victims. The benefits to one’s university of having more victims speak up might be substantial. (Of course there are other bars to victims speaking up. The recent moves by the Office of Civil Rights to get schools to handle sexual assault and sexual harassment complaints more responsibly (as obligations under Title IX) will hopefully help.)
Getting universities to institute policies of indemnifying victims would also avoid the following worry about individual faculty members following Jennifer Lackey’s advice. I can imagine a faculty member thinking, “If a student tells me about sexual assault or harassment by one of my colleagues, I am duty-bound to report it to my University, regardless of my personal opinion. But I cannot press that the student be indemnified regardless of my personal opinion. Pressing for indemnification would be warranted only if I *believe* the student and would involve my *taking her side* against my colleague.” This might be an easy choice to make in the case of a colleague who is in fact known or suspected to have committed similar abuses in the past. But it might be a hard choice for some professors who had no idea a colleague might be behaving in this way.
— In fact, one should trust (those who claim to be) victims, precisely because people rarely lie about these things. So there is a good response to this imagined line of thought. But I do worry that this line of thought would stop many professors in their tracks, and make them not follow Jennifer Lackey’s advice.
Thanks for this post.
One thing to consider: it’s possible that the student’s main reason in confiding to a faculty member is that she needs immediate help in managing her education goals in light of the harassment. Whether or not she wants to pursue charges, she may feel the need to have changes made to her supervising committee or research team right away. Finding ways to help a student do this without needing to openly discuss the reasons with everyone would be a tremendous help to students caught in that situation.
One other piece of (potentially) useful information that comes to mind: there are ways of getting a limited amount of pro bono independent legal advice for your student.
It’s always really important to remember that university lawyers – even when nice and well-intentioned – are paid to represent the legal interests of the university, not of the students who attend it. So if the university agrees to offer your student various protections but what they offer is written in complicated legalese and you – like me – are a complete idiot about this kind of thing, getting a lawyer not affiliated with the university to look the papers over can be incredibly helpful. Reach out to your local sexual assault/victim support association or contact the Victim Rights Law Center (http://www.victimrights.org/) to see what might be available in your area. It’s sometimes possible to arrange this kind of very limited independent advice on a pro bono basis.
Thanks for the great post. Can someone explain more clearly what it means for a college or university to indemnify an individual who has come forward to report a sexual assault?
If, for instance, a student reports that she was sexually assaulted by a faculty member, and her university indemnifies her, then the university is promising to pay any legal expenses that might arise from the student being sued for providing this testimony. This includes both legal fees and damages.
Thanks. Do the same arguments apply to student on student sexual assault, i.e., do you think the institution should also be indemnifying victims in that case?
@ “Need more info”: I don’t know of any case in which a university has indemnified a victim in a case of student-on-student sexual misconduct — and I don’t know of any case in which a student accused of sexual misconduct has sued the complainant, either. The dynamics in a student-on-student case are really different, for all kinds of reasons. First, *both* students are protected by Title IX, and so a student who feels that a case was mishandled by the University in a manner that prohibited him or her from equitable access to an education can sue the University under Title IX. (See, e.g., http://columbiaspectator.com/news/2014/05/19/found-responsible-sexual-misconduct-student-sues-columbia-alleging-discrimination.) Second, the accused student typically does not have anything to lose aside from access to an education at that particular university (it is relatively easy to transfer to another institution), and the accused student’s name is typically not made public in the same way that an accused faculty member’s name is. In order to sue for defamation, you have to have an injury or loss of some kind.
A few additional points might be helpful here:
(1) In negotiating with the University for indemnity, it is wise to get legal advice if you’re not an attorney. The Women’s Law Center (nwlc.org) or Legal Momentum (legalmomentum.org) are good places to start. In particular, it is wise to make sure that the University does not try to require that the victim sign a non-disclosure agreement or other “confidentiality” (read: silencing) clause in exchange for indemnity. Victims need to be able to tell their stories.
(2) While Title IX cases are typically taken on a pro bono or contingency basis, defamation suits are almost never handled on a pro bono basis, and only very rarely (when it is a very strong case) handled on a contingency basis. The cost of launching a case is prohibitive, both in terms of time and money, and this should be taken into consideration in evaluating the likelihood that the accused will launch a counter-suit.
(3) The cost of defending against a suit is also expensive. Defendants *cannot* get representation on a pro bono or contingency basis, because — well, there’s no money to be gained by winning the case. And, while suits against complainants should in theory be dismissed because the complainant’s testimony is privileged (and therefore does not constitute defamation, *even* if false), it takes time and money to even make the argument for dismissal.
(4) I know of only one case in which an accused faculty member has actually sued the complainant — and the faculty member who supported the complainant. The case happens to be in philosophy. And I continue to be shocked and stunned that the profession is tolerating the behavior. (Suing a graduate student and colleague in your own department? Really??)
In order to appreciate the importance of indemnifying students who come forward to file sexual assault complaints, I imagine cases like this: one student is sexually assaulted by another; the first student files a complaint with the sexual harassment office at her* university without being indemnified; her assailant finds out that, in filing the complaint, she stated that he had sexually assaulted her; he sues her for defamation for making this statement. In one case, the assailant is not able to make his case. However, the woman that he assaulted has paid thousands of dollars in legal fees, perhaps going into debt to pay them. In another case, the assailant manages to prevail: the court decides that the woman he assaulted defamed him by reporting her assault to her university. Once again, the student, and perhaps her family, is financially ruined.
In these cases, a man who sexually assaulted a woman uses the courts to financially devastate the woman he assaulted. If the student had been indemnified by her university, she would have been spared that much. Granted, she still would have suffered the assault, endured the experience of filing a complaint, and gone through the ordeal of a lawsuit. But at least she would not have been financially ruined by the person who had already sexually assaulted her.
(*I do not mean to suggest that all survivors are female or that all assailants are male.)
“by rendering them vulnerable to lawsuits brought against them by the people who have already victimized them”
Is this particularly common? I know that several people who have been accused of rape and thrown out of school have sued the school, but how often has a lawsuit been filed against the victim (or alleged victim)?
Heidi Lockwood addresses this question in her comment above. But let me say that it doesn’t have to happen frequently that a victim is sued by her assailant for it to have a chilling effect on victims in the profession and in the academic world more broadly.
Thank you, Jennifer, for your post. Regarding institutional requirements to report:
If you have the misfortune to be part of an institution where you feel the reporting requirements will make the student more, not less vulnerable, you can still find creative ways to listen to students and to give them support and advice while leaving certain kinds of control with them. For example, you can suggest that they refrain from mentioning the name of the person involved. Then when you report up the food chain the student remains in control of the decision to make an accusation against the perpetrator. Whenever pursuing a course of action like this, though, I think it’s important to keep in mind that as professors we don’t have the expertise to properly assess the mental, emotional (profession, legal….) risks to a student of a given incident of harm.
When I participated in the 2011 Mentoring Workshop for Women in Philosophy at UMass Amherst, their Equal Opportunity person gave a fantastic, very informative and incredible useful presentation concerning these kinds of issues. I couldn’t track down her name, but the workshop was organized by Ann Cudd and Louise Antony.
A few points in response to DC and to questions that other people might have:
In her response to need more info, Heidi Howkins Lockwood wrote that “In order to sue for defamation, you have to have an injury or loss of some kind.” Unfortunately, this only applies to cases of per quod defamation; in cases of per se defamation, a plaintiff does not need to show any specific injury (being dismissed from a university, e.g.). In these cases, the defamatory character of the statement is supposedly so obviously harmful that damages may be presumed. I can’t speak to what kind of statement counts as per se defamatory in other states, but in my own (IL), categories of statements that are considered defamatory per se include words that impute the commission of a criminal offense. So, if a student falsely states (in non-privileged contexts) that she has been raped, the statement is per se defamatory.
There are some contexts in which absolute privilege applies: if someone makes a false statement in one of these contexts, she cannot be sued for defamation. Absolute privilege applies, for instance, to statements made during judicial proceedings. However, it is not clear, under law, whether absolute privilege applies when a student files a complaint with a sexual harassment office. In Keri v. Hartman, a case that eventually appeared before the IN Supreme Court, the Court ruled that absolute privilege does apply when students file such complaints, and granted a summary judgment in favor of the students. In this case, the alleged sexual harassment consisted of inappropriate classroom behavior, not sexual assault.
For some reason, in the case of Mauvais-Jarvis v. Wong, the appellate court’s opinion suggested that there may be a difference between complaints made at public and private universities (where the Keri complaint was at a public university). The court in the latter case offered no explanation as to why there would be such a difference. Also, the Mauvais-Jarvis case concerned research misconduct, not sexual harassment.
This brings us to the next point: though I am not a lawyer and have no legal expertise, I am confident that, with one exception, Keri v. Hartman is the only case in which a faculty member at a university has sued students for filing a sexual harassment claim with the office of sexual harassment at their university. I am confident that there has only been one such case because I have carefully read various legal documents available on PACER (Public Access to Court Electronic Records) and online. The exception is the case that Prof. Lockwood referred to in her comment at 10:30 pm yesterday, Oct. 13.
tl;dr: (1) In cases of per se defamation, a complainant need not show damages; (2) it’s not clear, under law, whether absolute privilege applies to statements made in filing sexual harassment complaints with one’s university; (3) it seems that there have only been two cases in which a professor sued his students for filing a sexual harassment claim against him. In one case, the judgment favored the students; the other case is very recent.
I would not get too caught up in per se/per quod distinction, since all per se does is establish malice and damages. Even if it’s not defamation per se you can still prove those elements if you sue. But I guess my point was if being sued like that is so rare it’s hard for me to see why it should constitute that major an obstacle to reporting to the school, at least not nearly as big an obstacle as the personal/professional/emotional costs.
I would think just about any lawyer would heavily dissuade her client from bringing that suit unless there was substantial evidence that the complainant lied, in which case maybe they should be sued, since a false accusation of rape is almost as defamatory as you can get in our society.
“For some reason, in the case of Mauvais-Jarvis v. Wong, the appellate court’s opinion suggested that there may be a difference between complaints made at public and private universities (where the Keri complaint was at a public university). The court in the latter case offered no explanation as to why there would be such a difference”
Statements made in Judicial or quasi-judicial statements in proceedings before governmental bodies are privileged because public policy requires free and unfettered operation of those governmental functions. Extending that to private organizations, or having courts have to investigate the procedural merits of any sort of investigation, would pretty much open the door to privatization of certain important government functions. I can’t get mad at someone at a dinner party and quickly convene and ad hoc investigatory committee so I can badmouth him to them. A completely silly example I know, but the principle is pretty much the same; private universities and public universities appear similar on their face, but they are completely different kinds of entities when you scratch the surface.
“But I guess my point was if being sued like that is so rare it’s hard for me to see why it should constitute that major an obstacle to reporting to the school, at least not nearly as big an obstacle as the personal/professional/emotional costs.” — Drew, you’re correct in thinking that the personal/professional/emotional costs of reporting are a huge and effective deterrent, particularly in the case of reporting faculty sexual misconduct, which is presumably why there are so many unreported cases. (Oh the stories I would tell, if I could!) But the *financial* cost of being sued — along with the emotional cost of being silenced by the attorneys who must give legally sound advice — is also enormous. Graduate students don’t have the tens of thousands that are required to defend oneself in the typical defamation case. As the IN Supreme Court remarked in the decision on the Keri v. Hartman case, “Protecting their complaints with anything less than an absolute privilege could chill some legitimate complaints for fear of retaliatory litigation.” (Many thanks to Anonymous 10/14 10:30 for the reference to this case.)
Also: in response to “I would think just about any lawyer would heavily dissuade her client from bringing that suit unless there was substantial evidence that the complainant lied” — *No*, we certainly cannot infer from the fact that there is a suit (particularly in a case in which the suit is not being handled on a pro bono or contingency basis) that there is substantial evidence. Many suits are dismissed. So, for example, in Illinois, a Cook County judge dismissed a defamation case in July 2014 against Sun-Times Media LLC and two other media outlets, saying, among other things, that the use of “rape” in the headline fairly and accurately summarized the sexual assault allegations in the student’s federal complaint. It would be bizarre to infer from the fact that Sun-Times Media LLC was sued for defamation that there was “substantial evidence” that they “lied.” They told the truth, as they understood it — and the judge agreed. I find it equally bizarre — and, quite frankly, offensive — to think that the existence of a suit against the complainant suggests that this must mean that the attorneys in question have “substantial evidence” that the complainant “lied.” (!!)
I think Heidi’s responses to Drew are exactly right. As I said in my first comment above, someone who files a lawsuit has the chance to speak first and to frame the issue in public discourse. News media may report the story directly from the lawsuit, sometimes without doing any further investigation. The defendant will also have been counseled by her attorney to remain silent on the issue until the lawsuit has been resolved. I take it this is a benefit a litigant might reasonably seek to obtain, even in cases where the lawsuit itself has absolutely no chance of success. That is a clear reason to treat these lawsuits, and the news reports grounded in them, with some skepticism. You certainly should not assume, as Drew does, that “there was substantial evidence that the complainant lied.”
Like Anonymous (to whom Drew is responding), I am unsure why there would be a difference in privilege between public and private universities. There are non-governmental entities that provide contexts in which some statements can be privileged–most notably, in the context of confession or other private communication with clergy members. Even though confession is not a judicial or quasi-judicial setting, it has generally been recognized that the need for privacy outweighs other needs, even including the government’s need for evidence in criminal cases. To borrow from Heidi and Anonymous, the Indiana Supreme Court wrote that “Protecting [the students’] complaints with anything less than an absolute privilege could chill some legitimate complaints for fear of retaliatory litigation.” There is no reason to think that this would be less true in the setting of a private institution.
I had drafted a longer reply to Heidi but the internet apparently ate it, so I will summarize very briefly:
A common equation for risk is Risk=Threat X Vulnerability; if the threat is low, then the risk is low, even if the cost is high. I think by emphasizing the risks of a defamation lawsuit that is not very likely, you can push victims into keeping quiet.
And you misunderstand what I’m saying about what a lawyer would do when approached by someone accused of sexual harassment/assault publicly who wants to sue the accusing student for defamation. In that VERY SPECIFIC situation most lawyers would be wary of the case because there is a fairly high bar to show defamation, their reputation and their putative clients’ reputation will likely be hurt, and the student in many cases would be judgment proof because of lack of resources. Because of that, most lawyers would damn well want to think they have very strong evidence to prove their case, while in the case of a corporate defendant like a newspaper that impetus would not be as strong. In light of that I found myself a little resentful over the suggestion that I am exhibiting “bizarre” thought processes; though I cannot help whether you find what I say offensive or not, what I am saying is based on my understanding of not only the law as a formal system but my experience as a civil litigator.
Baron:
See my response above; to reiterate, you have to understand, litigation is VERY context-dependent. And I am probably far more aware than anyone on this thread because of my profession as a civil litigator about how lawsuits operate and how lawyers think, so it is somewhat frustrating to have my very narrow statements misconstrued as general pronouncements about every defamation case, especially the frankly insulting insinuation that as someone who has DRAFTED not only my share of complaints but also my share of answers to complaints I somehow take what they say credulously. As for why there would be a difference between public and private universities, that one is pretty easy; in the Anglo-American justice system the government has long had a monopoly on judicial and even quasi-judicial proceedings. There are many good reasons for this. A public university and a private university may appear the same on the surface but they are far different entities as legal constructs. I will also note that if courts and laws are going to start to allow universities to act in quasi-judicial capacities, the courts are likely also going to require they do a lot better job of due process for all parties involved.
Drew, the statement that you made was the following: “I would think just about any lawyer would heavily dissuade her client from bringing that suit unless there was substantial evidence that the complainant lied, in which case maybe they should be sued, since a false accusation of rape is almost as defamatory as you can get in our society.” This does not sound like a “very narrow statement”; it sounds like you are suggesting that we should think that defamation lawsuits are typically grounded in substantial evidence. I’m not a lawyer, so I don’t have the same experience you do. But you’re asking us to believe something–viz., that frivolous lawsuits don’t get filed all the time–that just isn’t plausible.
You are right that suing students is in general a bad way of getting a financial judgment. Even so, legal fees alone can be a crushing expense for many students. That is precisely why they are vulnerable to even the threat of a lawsuit, and that is why Jennifer’s advice to secure indemnification from the university for them is important.
Finally, the federal government has made clear that all universities, both public and private, are obligated to conduct investigations of possible Title IX violations. In the Department of Education’s Q&A (section F), there are requirements for the procedures the university must follow in conducting this investigation (including a specification of the preponderance-of-evidence standard and guidelines for how to handle testimony). It is hard to see how this is not the sort of quasi-judicial setting for which privilege would be essential. Moreover, the same Q&A (section E) makes clear that the university must respect the confidentiality of the complainant as much as possible because failing to do so “can have a chilling effect and discourage other students from reporting sexual violence.”
Your interpretation assumes by “that suit” I mean lawsuits in general, or even defamation lawsuits in general, which I most certainly do not. I mean specifically, where a student is accusing a professor or fellow student of sexual harassment or assault, a defamation lawsuit in response would be very risky; that is certainly a narrow situation. I am most certainly not arguing that “frivolous lawsuits don’t get filed all the time.”
“In the Department of Education’s Q&A (section F), there are requirements for the procedures the university must follow in conducting this investigation (including a specification of the preponderance-of-evidence standard and guidelines for how to handle testimony). It is hard to see how this is not the sort of quasi-judicial setting for which privilege would be essential.”
One thing to keep in mind whenever you are analyzing Department of Education guidance is that it is not the law. It is an executive agency’s interpretation of the law, but courts can, and do, reject agencies’ decisions on statutory interpretation. For example, the “preponderance-of-evidence” standard the DoE claims is required is controversial; FIRE has what I think is a very cogent criticism of those guidelines here:
http://www.thefire.org/frequently-asked-questions-regarding-the-federal-blueprint-for-sexual-harassment-policies-on-campus/
The AAUP also has protested having such a low burden of proof:
http://www.aaup.org/NR/rdonlyres/FCF5808A-999D-4A6F-BAF3-027886AF72CF/0/officeofcivilrightsletter.pdf
“Moreover, the same Q&A (section E) makes clear that the university must respect the confidentiality of the complainant as much as possible because failing to do so “can have a chilling effect and discourage other students from reporting sexual violence.””
That guidance also makes it plain that the accused has certain rights as well; they will know who is lodging the complaint.
In response to Drew:
“I mean specifically, where a student is accusing a professor or fellow student of sexual harassment or assault, a defamation lawsuit in response would be very risky; that is certainly a narrow situation.” — I’m afraid I have no idea what you have in mind here. How would it be more risky to file a groundless defamation suit in a sexual misconduct case than in any other case? As I noted in a previous comment, we appear to have a recent example of a groundless defamation suit in the Peter Ludlow v. Sun-Times Media LLC, et al., 14 L 1529 case, which was dismissed in July, and concerned a situation in which a student was a accusing a professor of sexual harassment or assault. The “loss,” as far as I can determine, was purely financial. Where is the additional risk, other than the usual risk that one takes in filing a defamation suit?
“For example, the ‘preponderance-of-evidence’ standard the DoE claims is required is controversial… The AAUP also has protested having such a low burden of proof.” — The AAUP’s argument in favor of this is that accusations of harassment and sexual violence are serious and therefore have the potential to ruin a faculty member’s career. Ergo a higher standard of evidence ought to be used. Among the problems with this argument is the fact that litigation and policies developed to comply with Title VII, which prohibits sexual misconduct in the workplace, have used the “preponderance of evidence” standard for a very long time — and I have never heard of anyone balking at the idea that a harasser in the workplace might have his or her career ruined by a case decided on preponderance of evidence. Why would faculty have some privilege that employees in other sectors don’t enjoy? Perhaps more to the point: the AAUP’s argument (and, for that matter, FIRE’s argument) is legally naive. The “clear and convincing” standard of evidence is typically used only in cases in which there is a fundamental right at stake — e.g., in cases involving a juvenile, in child custody, in the probate of both wills and living wills, and in petitions to remove an individual from life support. Why would faculty have a fundamental right to a position? And how do employees in other sectors who are covered “merely” by Title VII not enjoy the same privilege? (To suggest that there is a difference smacks of elitism, imho. But I’d welcome an argument to the contrary.)
I suppose we could be slightly more charitable, and assume that the concern which underlies FIRE’s anti-preponderance-of-evidence view is that the system will be abused by false reports. The Achille’s heel of this argument is that it flies in the face of the evidence. The problem we now face is chronic underreporting of sexual assaults, not false reporting. To cite just a couple of statistics: a 2007 study showed that about one in five women and 6 percent of men are victims of completed or attempted sexual assault while in college (https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf), and a 2005 report found that fewer than 5 percent of completed or attempted rapes are reported (https://www.ncjrs.gov/pdffiles1/nij/205521.pdf). Those silent and *actual* victims of *actual* crimes are innocent, unlike the hypothetical victims of false accusations that FIRE worries about. And if the statistics are correct (or even close to correct), this means that more than 2.6 million of the approximately 24 million students who are currently enrolled in universities in the U.S. have been very seriously harmed. Take a moment to say that number, slowly: MORE. THAN. TWO. AND. A. HALF. MILLION. students. And that’s just the current student population. The consequences of even attempted assault are often life-changing: persistent PTSD, stress, anxiety, depression, suicidal thoughts…
As William Carlos Williams wrote in his 1916 poem, “Apology”:
WHY do I write today?
The beauty of
The terrible faces
Of our nonentities
Stirs me to it:
Surely it makes sense to use the evidentiary bar already established by Title VII in an effort to encourage victims to come forward, *even* — yes, even — if it means that there will be some comparatively insignificant number of false accusations?
Drew,
To which of these propositions, if any, do you assent:
1. Students who file sexual harassment complaints with the sexual harassment offices at their university should not be indemnified.
2. When students are considering whether to file such complaints, they should not take the possibility of a defamation suit into account, given that the risk of such a lawsuit is so low.
3. If a student is sued for defamation for filing such a complaint, there is good evidence that the student lied when filing the complaint.
4. The reason to think (2) is true is that, IN THIS VERY SPECIFIC SITUATION, just about any lawyer would be unwilling to take the case unless there was substantial evidence that the student lied.
5. If a student is sued for defamation for filing such a complaint, there is good reason to think that the student lied when filing the complaint.
6. As a matter of law, such complaints *are not* absolutely privileged if they are filed at a private university, even though they *are* absolutely privileged if they are filed at a public university.
7. Such complaints *should not* be absolutely privileged if they are filed at a private university, but they *should* be absolutely privileged if they are filed at a public university
8. As a matter of justice, such statements should be absolutely privileged. Legal issues aside, morality requires that such statements be absolutely privileged.
At various points in this thread, your comments have suggested that you assent to (1)-(7) and think that (8) is false. However, it is unclear, which is why I ask. As I understand them, Heidi and Baron (if I may take the liberty of using their given names) have been arguing against (1)-(7) and in favor of (8). Or maybe I should say that they have been arguing against (1)-(5) and (7), in favor of (8), and challenging the truth of (6).
For the record, I believe that it is unclear whether (6) is false and I agree with (what I take to be) Heidi and Baron’s position regarding the other propositions.
“In that VERY SPECIFIC situation most lawyers would be wary of the case because there is a fairly high bar to show defamation, their reputation and their putative clients’ reputation will likely be hurt, and the student in many cases would be judgment proof because of lack of resources.”
I do doubt that students would be comforted by the fact that most lawyers would be wary of such a case. Suppose a student brings a complaint against a professor and the complaint is unsuccessful. Now the student has to live with the discomfort, the fall out, and the pain of having filed a complaint without it having done her any good. Suppose a student files a complaint against a professor and the complaint is successful. If the results of the complaint should result in sanctions such that the professor has little to lose (either by way of a job or reputation), and if the professor has the resources to find the sort of lawyer that will represent them, then the fact that many lawyers would not take such a case isn’t going to be particularly helpful to the student, since there are some who would.
Point in fact, I already know several students who have said that they would never file a complaint on account of precisely these worries (and to be clear, they said this before this post was published).
In response to Heidi:
“I’m afraid I have no idea what you have in mind here. How would it be more risky to file a groundless defamation suit in a sexual misconduct case than in any other case?”
For one thing, because of a potential Oscar Wilde effect, where information or testimony could come out that makes the plaintiff vulnerable to criminal charges, or alternately a civil suit or counterclaim against them. Also publicly being seen as a bully and having one’s alleged misdeeds kept in the news would be a big factor. As far as I can tell a lot of Colin McGuinn’s current woes come from his actions after the accusations were made.
“Why would faculty have some privilege that employees in other sectors don’t enjoy? Perhaps more to the point: the AAUP’s argument (and, for that matter, FIRE’s argument) is legally naive. ”
I don’t think faculty deserve some special privilege; I think anyone in this situation would deserve certain procedural safeguards. And there are two major differences between this and general civil litigation. First, that a sexual harassment/misconduct adjudication process is not a purely civil one; it has elements of a criminal prosecution. Being removed from your job because you were found to have sexually harassed someone will likely follow you around for the rest of your life in a way that losing a contract or tort action would not. Secondly, civil litigants have a lot more procedural safeguards in actual court than they do in a college hearing, particularly where the investigating and adjudicating members frequently are not trained in either the law or investigation. This op-ed discusses the latter in detail but also links to the first point, particularly in the second-to-last paragraph: http://chronicle.com/article/Campus-Is-a-Poor-Court-for/134770/
In regards to your statistical point, I agree completely that sexual assault and sexual harassment are dramatically underreported and presents an incredibly important problem we have to deal with. I am a big advocate of universities forcefully investigating and following up on such claims, as long as they do it right. The problem is that doing so while maintaining due process is difficult; saying that false accusations are rare is true, but that doesn’t mean that from a procedural standpoint we should just assume guilt, and passing the buck off to campus administrators to adjudicate these things has historically not been a good idea. I am uncomfortable with the idea that false accusations are so rare that the chances of an individual accusation being false is negligible.
In response to Anonymous:
Drew,
“To which of these propositions, if any, do you assent:
1. Students who file sexual harassment complaints with the sexual harassment offices at their university should not be indemnified.”
Actually, I do not asssent. First, I’m assuming you mean having their legal fees paid? If so, I have no problem with that; in fact, I think schools should offer a legal insurance policy similar to their health insurance policies. Or do you mean indemnification in the technical sense that damages from a judgment would be paid by the school? Actually, I think that schools should indemnify students for statements made to the university as part of the complaint, though not for statements they made to a newspaper, for example. I think that strikes a good balance between the rights of the student and the rights of the accused.
“2. When students are considering whether to file such complaints, they should not take the possibility of a defamation suit into account, given that the risk of such a lawsuit is so low.”
They should consider the possibility but in most cases not let it deter them because I think it is rarer than they think. Also, I think generally students should be taught that losing a court case is not the end of the world. It would certainly be less of a financial burden in most cases than their school loans.
“3. If a student is sued for defamation for filing such a complaint, there is good evidence that the student lied when filing the complaint.
4. The reason to think (2) is true is that, IN THIS VERY SPECIFIC SITUATION, just about any lawyer would be unwilling to take the case unless there was substantial evidence that the student lied.”
5. If a student is sued for defamation for filing such a complaint, there is good reason to think that the student lied when filing the complaint.”
Of course not to any of those; I’m simply stating that most competent lawyers would not go forward with this without admissible evidence that the accusations were untrue. This should not lead to any conclusions about a specific complaint, but should simply be a way to reassure those considering filing a complaint that they are not in as much danger from litigation as they may think.
“6. As a matter of law, such complaints *are not* absolutely privileged if they are filed at a private university, even though they *are* absolutely privileged if they are filed at a public university.”
No; as Heidi notes above, some states do consider such complaints privileged. Again, though, this is generally in terms of statements made during the process and does not extend to statements made outside that process.
“7. Such complaints *should not* be absolutely privileged if they are filed at a private university, but they *should* be absolutely privileged if they are filed at a public university
8. As a matter of justice, such statements should be absolutely privileged. Legal issues aside, morality requires that such statements be absolutely privileged.”
In the interests of justice, such statements should be absolutely privileged IF university adjudication procedures follow some objectively predetermined due process standard, which they currently do not, AND there is not clear and convincing evidence that the student filed a false complaint maliciously.
While I have no problems discussing this further, the lack of nesting in these comments has gotten to critical mass so I will end with this post. Anyone who wants to discuss it further is welcome to email me at my anonymous email address, [email protected].
Drew,
Thank you for your thorough response to my many-part question. I greatly appreciate your taking the time to clarify your position.
Is a university professor typically also required to report allegations of professor-professor, as well as of professor-student, sexual harassment?
Good question, Zara. If students are aware of the allegations, then professor-professor sexual harassment may have an adverse effect on students — by, e.g., restricting educational opportunity if students feel they can’t take classes with the harasser without exposure to inappropriate remarks or perhaps sexual advances. In this case, the harassment would fall under Title IX and you would follow the protocol for Title IX (mandated) reporting.
(It might be helpful to note here that this is one of the reasons that many universities in the U.S. are prohibiting consensual relationships between faculty and students. Whether or not the faculty member in question is conducting him/herself in an appropriate manner with respect to letters of recommendation, grades, and so forth, is not transparent to other students. Students who know that a particular professor often dates students may wonder whether they would subject to unwelcome sexual advances if they took a class with that faculty member. If they then quietly decide to avoid those classes, it constitutes a gender-based restriction of educational opportunity, which is precisely what Title IX is designed to address.)
If, on the other hand, the professor-on-professor sexual harassment is something that only colleagues are aware of, then the misconduct would fall under Title VII, which prohibits sexual harassment of employees in the workplace. Under Title VII, unwelcome sexual advances, requests for sexual favors, and other verbal or physical acts of a sexual nature constitute sexual harassment “when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.”
Like Title IX, Title VII has a mandated reporting clause. Mandated reporters under Title VII are (minimally) the supervisor(s) of the employee(s) involved in the harassment. But many universities have extended the scope of mandated reporter to include all faculty for all of the federal laws which cover sexual harassment (Title IX, Title VII, and the Clery Act).
One thing that I should point out in connection with this is that you do *not* have to be directly affected by harassment and you do not have to be a member of a university community to have the power to report sexual harassment to a university. Title IX, in particular, requires that university Title IX coordinators have a procedure for handling 3rd party and/or external complaints — and escalating the complaint from informal to formal — just as they would a complaint from a directly affected or internal complainant.
So, for example, if you witness inappropriate behavior by a faculty member at a conference, you can report that behavior to the Title IX coordinator of the faculty member’s university. This isn’t a legal obligation, but I can think of a few arguments to suggest that it is an ethical obligation.
Also: just as Title IX complaints which are not resolved through the University’s complaint procedures should be reported to the OCR (http://knowyourix.org/title-ix/how-to-file-a-title-ix-complaint/), Title VII complaints about sexual harassment of employees which cannot be resolved by the University’s complaint procedures should be reported to the EEOC (http://www.eeoc.gov/facts/howtofil.html).
Thanks for the really helpful and comprehensive answer! The reason I asked the question is that my closest friend is one of my colleagues. We’ve shared stories of sexual harassment (sometimes borderline, sometimes clearcut cases) with each other, at the hands of other colleagues (sometimes at our institution, sometimes at conferences, etc.). We’ve explicitly had these discussion “under the Cone of Silence”, i.e., with an agreement of full confidentiality. I do see the point of reporting requirements. But there’s also a role for close friends and colleagues to talk through such matters with each other with full confidentiality. I don’t know if these two can be reconciled.
Maybe this is obvious, but we really need to distinguish between legal and ethical obligations here. Even if I “play it safe” and assume I do have a duty to report under Title IX or under local campus guidelines, it may also be the case that ethically I shouldn’t report, and then I have to think through whether I can personally afford to do the right thing as opposed to the legally/locally required thing. I have to think about chances of being discovered, what the consequences might be for me and others, etc. etc. Personally, if a student comes to me in desperate need, and I think I’m in a unique position to respond (yes, that can happen), and a number of other conditions are met (it would take quite a while to list and discuss them fully), I will respect the student’s expressed desire for confidentiality. I’m not going to send away a student in a desperate state of mind who feels I am the only person she can talk to and I’m not going to betray her after the fact. We really ought to have legal/local guidelines that allow a professor to use good judgment about particular cases, not a one-size-fits-all duty to report that may stop students from being able to turn to faculty for help. But so long as we do have those sorts of guidelines, surely we ought to be prepared to take some personal risks in order to protect and advocate for our students. Sermon over. I’m just surprised there’s so much talk of legal requirements in this thread, and not more about the option of being a conscientious objector in the face of those requirements, should they be overly broad.
You raise a nice point, Jean. But let me emphasize (as I did above) that even if one is legally obligated to report, for instance, a student’s having been sexually assaulted by a colleague, the student is not thereby compelled to cooperate with any ensuing investigation. This is important, since it enables the victim to retain some autonomy in the process. Of course, there might be very good reasons for the student to come forward, such as to protect other members of the community from harm, and you might convey these reasons to her. But you could also surely tell her that if she confides in you, you will have to report it, but that you will support her no matter what she decides to do. It is also important to note that merely bringing the incident to the university’s attention might allow its investigators to tell whether there is a pattern of abuse.
I can certainly imagine circumstances where the right thing to do is to report, but also tell the student she isn’t required to cooperate and you will support her every step of the way (as you say). I’m merely saying there are other circumstances in which one should not report–ethically should not, whatever the legal requirements are. Students can have excellent reasons not to want to come forward at all, whatever the promised support. They can think someone down the line won’t keep promises. Or they can have good reason to try to salvage the relationship with the harasser. Sounds awful, but imagine a student who has spent 4 years of college forging a relationship with a professor, and expects help in the future with employment. Should she be expected throw that away, to report harassment, knowing full well the harasser will make it sound like she was somehow the guilty party? Lots of factors are involved in deciding, as a faculty member, whether or not to respect the student’s preferences (e.g. likelihood of repeat offenses). I am merely saying we have to look at this decision in ethical terms and not just in legal ones.
Jean is right to emphasize the distinction between legal and ethical obligations: the mere fact that the law requires X does not entail that X is the morally right thing to do. Like Jean, I can imagine circumstances in which the morally right thing to do would be to respect a student’s (or, in the kind of case that has arisen for me (see above), a colleague’s) preferences. Indeed, I can imagine a professor having promised full discretion to a student, only to discover afterwards that she has a legal reporting requirement. (These requirements are not generally known or well understood.) It’s not hard to imagine circumstances in which the pre-existing promise should, from the point of view of moral duties, trump the reporting requirement.
I wonder how practical it is to suggest that a University faced with a charge of intentional sexual misconduct “indemnify” both the victim and the faculty member – essentially funding both sides of a dispute? Wouldn’t it make more sense to deny indemnification to professors and other employees who are accused of intentional misconduct?
Faculty indemnity in conjunction with the above wouldn’t fund both sides of a dispute. Indemnification would provide resources if you are sued, but not to sue a student oneself. See, e.g., https://facultyhandbook.uchicago.edu/page/indemnificationrisk-managementinsurance
I was referring to the suggestion in the post that the sexual assault victim be “indemnified” by paying his or her legal costs as a way to deal with the current system that pays for a legal defense for the accused facility member – thus my comment about funding both sides of a dispute. My counter proposal to leveling the playing field by paying the victim’s legal costs as well, is simply to refuse to indemnify a university employee who is accused of intentional sexual misconduct.
The author’s suggestion is set forth here: “Here is where my first proposal comes in: should a student report to you that she has been victimized by one of your students or colleagues, fight aggressively on her behalf for the college or university to indemnify her.”
Right, I understood your suggestion–but I am disputing that the above proposal would fund both sides of a dispute. Indemnifying a student does not entail that the costs of a legal complaint initiated by them are covered, just as indemnity for faculty does not cover costs for them to sue students or faculty who file complaints against them. The problem with the uneven playing field is not that faculty can have any legal costs covered, but rather that if a student brings a complaint of sexual harassment or assault forward within a university’s own internal reporting procedures, it is possible for them to be sued (even if frivolously) for doing so and the costs to a student in order to protect themselves in such a situation are prohibitive, and yet university’s have a vested interest (and in the U.S., a legal responsibility, however amorphous) in ensuring that students are protected from sex discrimination including harassment and assault. Taking indemnity away from faculty would extend the concerns regarding threats of lawsuits undermining the community’s ability to deal with misconduct complaints rather than protect anyone from being sued.
I just retired after 35 years of criminal and civil trial practice so I am fairly confident that I understand how indemnity works. Let me give you and example: Student sues professor + university for sexual battery or harassment or both. Professor files a counter suit against Student for defamation.
Under the authors proposal the University would not only fund the professor’s legal defense costs on the complaint, but would also be required to pay the student’s defense costs on the counter-suit. Student = one side of the dispute. Professor = the other side. Both would be indemnified under the proposal. Ergo, both sides of the suit would be funded by the University, including a student who is also suing the university. I don’t believe this practical.
Right, but only applicable in cases where there is a counter suit, and the alternative does nothing to solve the original problem.
I am not sure it really is such a problem since under the law of most states one or more privileges would apply – including (if the University grievance procedure is reviewable by the professor through administrative mandamus) – the so called “litigation privilege”, which if applicable would be absolute (meaning that even malice or knowing falsity will not defeat it). Victim’s complaint’s to police are also covered under the absolute privilege, so I would be astounded if a state court would allow a defamation suit by a professor to go forward against a former student if the alleged defamation occurred during a University grievance procedure.
This issue could be raised at the outset of the litigation prior to filing an answer to the suit by way of demurrer.
From the original post:
“Being sexually assaulted or harassed is a traumatizing and isolating experience…”
“Despite the risks, some students do report the crimes to officials at their institutions…”
Sexual assault is a crime. Sexual harassment is not a crime. Sexually harassing behavior might include but need not include actions that are themselves criminal but this does not make sexual harassment a crime. It means only that like other civil offenses this type of civil offense might occur along with criminal conduct.
Concerning indemnification – whether this will be in a university’s overall interest will vary on a case by case basis. If someone wants to propose that a university indemnify a student for civil litigation to which the university is not a formal party I would predict that the proposal will be welcomed and considered. I will not predict that the suggestion will be adopted frequently.
If one proposes that a university indemnify students for any and all matters concerning civil litigation arising out of complaints of sexual assault or sexual harassment then I predict the proposal will be rejected in favor of making such decisions on a case by case basis. For one thing, the proposed universal policy would include even those very rare cases where a complaining party is known to have (and has been found previously in court to have) made intentionally false allegations in the past. For another thing, some of the litigation that might arise out of an initial sexual assault or sexual harassment claim might be litigation in which the university and the student are adversaries.
Turning to a different matter arising in the discussion thread, commentator “Drew” is correct to say this: “One thing to keep in mind whenever you are analyzing Department of Education guidance is that it is not the law.”
Some of the guidance from philosophers in this discussion thread and elsewhere about Title IX seems to take as equally authoritative (a) statutes and case law, (b) administrative interpretive statements, and even (c) arguments from philosophers who blog about Title IX.
One example of (c) involves arguments that assault and harassment should be treated more similarly than they are in fact treated under the law. Another example of (c) involves arguments about what sort of *legal* privilege should attach to statements made as a part of private university internal sexual harassment investigations. A philosopher arguing online for positions on these latter issues does not serve as a sound foundation for providing legal “information” about the issues and certainly not for giving legal advice about these matters.
I’ve seen discussions of issues of privilege online, though I’m a little confused as to which philosopher might be construed as giving legal advice on these matters (I would hope no one would trust their legal advice to anyone but a relevantly competent lawyer). However, while we shouldn’t take philosophers to be giving legal advice, neither are they making entirely unjustified assertions. There is relevant case law on the matter. Hartman v. Keri; United Laboratories Inc. v Savaiano; Schumacher v. Argosy Education Group, Inc., etc.