Otterbein University is getting rid of a form that it required victims, perpetrators and witnesses to a sexual assault investigation to sign, after student journalists asked administrators why alleged victims were being told not to discuss their cases.
University officials say it was not technically a nondisclosure agreement – which the U.S. Education Department has previously said is illegal – but rather an advisory not to share information, designed to protect victims who file sexual assault complaints with the university.
“We’re advising students – all parties involved – that it’s probably not wise to talk to a lot of people about this,” said Robert Gatti, Otterbein’s vice president for student affairs, adding that the main point was to protect victims by keeping perpetrators and witnesses quiet. Everyone signed the same form. “Once we were informed by the students that that was perceived as signing a confidentiality statement, we took it out immediately."
The situation illustrates the importance of having clear, well-publicized procedures for sexual assault investigations, experts said, but also is yet another example of how – somewhat ironically, given the recent federal attention to this issue – it’s students and not administrators who are initiating policy changes these days.
The 14th entry on Otterbein’s 15-point “Title IX checklist,” as Gatti called it, states, “Privacy must be maintained and the matter should not be discussed.” Both the student and the staff member who is conducting the informational interview would sign to acknowledge they “have read and understand the above statements.”
Other points on the checklist, designed to ensure students entering the administration’s investigative process know their rights and the information they should receive, are not unusual. They include the right to file criminal charges, health and counseling services, notes on the interview process, and options available to avoid alleged perpetrators.
Discouraging students to talk about their cases is problematic, experts say, because it could silence students' free speech, contribute to a culture of victim-blaming, and help universities cover up crimes. In fact, many colleges and universities have taken increased steps to prevent sexual assault following publicity from victims about past cases. But there have been missteps. Last month, the Education Department's Office for Civil Rights warned colleges not to retaliate against students who complain of sexual assault, after the University of North Carolina at Chapel Hill's student-run Honor Court tried to charge a woman for speaking out repeatedly about her treatment by the campus judicial system.
It is indeed standard and sensible to talk with students about the importance of privacy in these cases, but what transpired at Otterbein really shows the need for proper communication, said Alison Kiss, executive director of the Clery Center for Security on Campus.
After OCR released the 2011 “dear colleague” letter detailing how colleges should prevent and respond to sexual assault (and signaling that those who didn’t could run into legal trouble), many institutions revisited and updated their policies. But it’s crucial during that process to get student input and response – which requires thorough outreach.
“It just shows poor communication,” she said. “It’s very important to be transparent about what the process is.”
OCR declared after an investigation at Georgetown University in 2004 that requiring sexual assault victims to sign nondisclosure agreements violates a federal crime statistic disclosure law (though experts said the agreements -- in different forms -- clearly still exist at some places).
“The Clery Act mandates that complainants be told of the outcomes and any sanctions of any hearing based on their complaint of sexual assault,” Brett A. Sokolow, president of the National Center for Higher Education Risk Management, wrote in a review of the case. “No condition, limitation or confidentiality requirement may interfere with that mandate.”
It’s normal for small colleges to get only a handful of sexual assault reports a year, but Otterbein has had just three in as many academic years. However, administrators only started using the checklist in September 2012.
“I don’t think students are really educated on what their rights are, so that’s why this thing was going on and why people have been signing it,” said Katie Taggart, news editor of the Tan and Cardinal, and one of the two reporters whose work prompted Otterbein to ditch its checklist.
Now, instead of signing anything, students will receive brochures with resources and advice tailored to their needs, Gatti said. For victims, he said, “It’s not going to mention anything about confidentiality.”
Colby Bruno, managing attorney with the Victim Rights Law Center, applauded the students’ work.
“If I could encourage two students on every campus to do that I would, because I think that’s the way they’re going to get some massive reform,” Bruno said. “You have no better example of the good that speaking out can do – there’s no better example than these student activists coming forward and talking about their experiences and all of a sudden, there’s a national movement. That’s why you don’t want the gag order.”
Cases at UNC, Occidental College and Amherst College – not to mention the general failure of much of higher education to adequately address sexual assault -- have been propelled into the national spotlight thanks to a groundswell of activism from students.
“We had been watching national news and we noticed that other schools were being caught [with bad policies]…. It all started with just one question and it kind of escalated from there,” said Chelsea Coleman, the Otterbein newspaper’s coordinating editor. “I think it is definitely bringing awareness to something that wasn’t there before.”
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