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The Right to Remain Silent

February 13, 2007

"Talk to us." That's the message student affairs officers constantly send to students, encouraging them to bring them their problems. In part, student affairs reach students by promising confidentiality. Abiding by such a promise landed a dean of students in court this month, facing criminal charges of failing to report felonies. On Friday, an Ohio jury acquitted Patricia O'Toole of the charges in a case that pitted confidentiality pledges against crime reporting laws. Several legal experts said that they knew of no other case in which a dean of students faced such charges.

O'Toole won the case, which involved her actions at Notre Dame College, outside Cleveland, an institution she quit after being indicted to take a similar position at Hollins University. Student affairs officers said that they were relieved by the outcome, but these issues may not be going away.

Advocates for campus crime reporting criticized the jury decision and say that they are stepping up efforts to make sure that just about every allegation of violence against a student is reported -- even in cases like this one, where the dean promised confidentiality and had some doubts about the allegations. Security on Campus, one such group, on Monday released a U.S. Education Department report showing that it had found Ohio State University had been out of compliance with campus crime laws in part because of the way it handled cases of alleged acquaintance rapes. As in the Notre Dame case, the issue is the discretion of student affairs officers to deal with an allegation in any way besides fully reporting it.

"This could affect every dean of students in the United States, who could be facing criminal culpability," said Ed Heffernan, O'Toole's lawyer.

Heffernan said that O'Toole could have paid a $50 fine to deal with the charges, but that she fought them "on principle" because she believed the issues were so important.

According to the prosecutor's office, two Notre Dame students told O’Toole in October 2005 that they had been sexually assaulted by a 19-year-old student. Prosecutors also said the dean received an internal complaint in which a third woman said the student had assaulted her. O'Toole told police officials about the allegations only several months later, when they asked her about the alleged assailant, who is currently awaiting trial on 21 felony charges, including rape and kidnapping. O’Toole noted that these incidents should be included by the college in its filings under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, a federal law that requires colleges to make an annual report of campus crime.

O’Toole had not come forward with the information earlier, however, and declined to give officers the names of the accusers, because she had told the students that she would keep their identities secret. The Ohio law requiring the reporting of felonies grants exemptions from the reporting requirement in specific circumstances, for members of the clergy, for example, and for counseling services “provided in an informal setting by a person who, by education or experience, is competent to provide those services.”

Heffernan, O'Toole's lawyer, said there were multiple reasons why she had not reported the charges to police officials. For one, she wasn't certain of the facts. But more importantly, the students had asked her to pledge not to notify authorities (or anyone) and O'Toole had agreed. Deans of students need to perform "a balancing act" in which they consider the rights and needs of all students, many times using a range of informal solutions to best help students, Heffernan said. "It's a travesty she was charged for this." He also blamed Notre Dame, saying that it had made O'Toole a scapegoat, and he said that the college had encouraged"  O'Toole to leave the college.

A spokeswoman for Notre Dame declined to comment on Heffernan's charges. But she released a statement: "We're pleased that the court recognizes that Ms. O'Toole acted without criminal or harmful intent. Ms. O'Toole acted with good intentions and the students' well being in mind. And we wish her well."

Several other experts said that they were concerned that O'Toole was ever facing legal charges. Victims of crimes "have the right not to report," and college officials should not be prosecuted for respecting a victim's request of confidentiality, said Sheldon E. Steinbach, a lawyer in the higher education practice at the Washington firm Dow Lohnes. "These students chose not to go forward," he said, adding that a prosecutor indicting a dean of students in such a case was "akin to Mike Nifong" in not checking out all the circumstances before drawing a conclusion.

Peter D. Brown, associate executive director of ACPA: College Student Educators International, said he was not an expert on Ohio law, but he was worried about the impact such prosecutions could have on student affairs officers and ultimately on students. He noted that students know, if they believe a crime has been committed, that they can file complaints with the police. When students go to a dean's office instead, they are making a decision that they may not want to go to the police, but still may need assistance, referrals or someone to talk to.

Brown said he feared situations in which prosecutors tell deans of students, "if you don't tell us everything you hear, we are going to charge you with a crime," and then student affairs professionals would have to warn students, who wouldn't come for help. "Who is going to provide students with the support they need?" he asked.

Prosecutors did not respond to questions about the case, but some observers supported their actions.

S. Daniel Carter, vice president of Security on Campus, said that O'Toole overstepped her authority by not reporting what she had learned, and that she never should have promised confidentiality in the circumstances. Carter said that Ohio law, by exempting positions like rape crisis counselors, is clear in that it is not exempting anyone who deals with students. "A dean of students cannot promise that level of confidentiality," Carter said. "A dean has obligations to other students."

While Carter agreed that some victims of crime do not want police involved, he said that was their choice, but not a dean's. "It was not her place to decide whether to investigate. It's law enforcement's job," he said.

More broadly, Carter said that the Notre Dame case reflected a reluctance by colleges not only to report potential crimes to the police, but to let other students know about them, as federal law requires. Security on Campus has been monitoring Education Department enforcement efforts of colleges in this regard and on Monday he released findings by the department that criticized some past policies at Ohio State University, which the university has changed in response.

Rick Amweg, assistant chief of police at Ohio State, said that the university used to have a "default" policy of not notifying other students of acquaintance rapes, presuming that there was no danger to the community broadly. Now the default policy is to notify other students (leaving out identifying information about victims) unless there is clear reason to believe that other students would not be at risk. Amweg said that there was never an absolute policy one way or the other, but that the presumptions have changed, so more incidents involving alleged acquaintance rape will lead to campus warnings.

Carter said that in deciding whether to report allegations to the police or other students, deans of students have conflicts. "They may have competing interests -- the interests of the other student or the image of the school," he said. Colleges should just have straightforward policies, he argued: Report all allegations to police and warn other students, and deans should never promise not to.

 

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