Endangering a Trust

If a student tells a faculty member about a sexual assault that the student doesn't want to report, should the professor file a report anyway? More colleges are requiring it, and not everyone agrees the policies are wise.

February 4, 2015
University of Maine at Orono
Suggested syllabus language notifying students of their instructors' mandatory reporting requirement regarding alleged sexual assault.

Should all professors be required to report student accounts of sexual assault to college officials? A growing number of institutions are saying yes, adopting policies requiring all faculty members and other professional employees -- not just those obligated by law to do so -- to report sexual misconduct to designated administrators, who may then initiate investigations and alert authorities. Facing calls for greater transparency about sexual violence statistics and accountability to victims, colleges and universities view such one-size-fits-all policies as a way to streamline and simplify reporting processes and assure that illegal abuse comes to light.

But while faculty members overwhelmingly support their institutions’ transparency and accountability goals, many feel that mandatory reporting will hurt the cause more than help it. They worry that fewer students will come forward if doing so means a report -- likely including personally identifiable information -- will be filed with the institution, with or without victims’ permission. And for those students who do come forward, faculty members worry about awkwardly having to explain their reporting obligation. So professors in many cases resent the choice with which they are faced: complying with students’ wishes about privacy or with their institutions’ reporting requirements.

“If a student comes to us and, because of the level of distress, begins pouring out their experience, it’s not the time -- or it seems really insensitive to say -- ‘Stop, wait a minute, I’m a mandated reporter,’” said Catherine MacGillivray, associate professor and director of the women’s and gender studies program at the University of Northern Iowa, where a new disclosure obligation is in place. “And what if the student says, ‘Oh, my God, that’s terrible -- I’m not ready to report this'?”

Before They're Ready?

MacGillivray said on-campus advocates of the new mandated-reporter policy for all employees say that if students are ready to talk to anyone about sexual assault, they’re ready to report it. But in her experience, she said, getting students to feel comfortable with the idea of making a report is typically part of a longer process in which they control the flow of information. “Do we respect the students’ wishes and thereby jeopardize ourselves?” she asked. “We shouldn’t have to make that kind of choice.”

Harry Brod, a professor of sociology at Northern Iowa who also objects to the new reporting policy, said he and colleagues are “concerned about this inhibiting conversations and creating a climate in which it’s less likely to be discussed and therefore less safe -- even if the intention is pro-safety and anti-sexual assault and all of that.”

Under Northern Iowa’s reporting policy, adopted this academic year, “All university employees who are aware of or witness discrimination, harassment, sexual misconduct or retaliation are required to promptly report to the Title IX [of the Education Amendments of 1972] officer or a Title IX deputy coordinator.” It’s the first time all employees have been told they’re obligated to report student accounts of sexual assault.

Most faculty members say they wouldn't hesitate to report imminent threats to students. Where they're hesitant is when a student describes an event that already happened, but which the student isn't sure he or she wants to report yet for any number of reasons. Such experiences might come to light in composition courses, in which students are asked to write on a personal topic, or courses that are focused on gender issues or sex. Brod, who has taught a class called Just Sex: The Ethics of Intimacy, for example, said, "If reportable information doesn't come up in that class, it's a failure -- these things are going to come up in conversation. So under a policy like ours, how do you conduct classroom discussions on these topics?"

Accounts also sometimes come up in one-on-one conversations between a student and a trusted professor, even in courses that have nothing to do with sex. Professors generally say they hope students will report misconduct, but many feel that it should be up to the victim to decide when and how a formal complaint is made. Sometimes that might mean seeking counseling or talking to a faculty member over a period of weeks or months -- not immediately, as many colleges now expect from mandatory reporters.

'Bridging' Reporting Requirements

Brett Sokolow, president and chief executive of the NCHERM Group, a risk management firm that advises colleges and universities on issues including sexual assault, also is executive director of the Association of Title IX Administrators, or ATIXA. He said policies such as Northern Iowa’s are becoming more popular as colleges and universities attempt to “bridge” various laws and regulations related to reporting sexual violence and discrimination. The two major provisions involving students are the Clery Act, which promotes campus safety through transparency about crime statistics and reporting procedures, and Title IX, which prohibits gender-based discrimination -- including sexual assault -- on campuses or in programs receiving federal funds.

These institutional-level policies are distinct from current, controversial legislative efforts in some states, including Virginia, to require faculty members and other employees of public colleges or universities to report alleged sexual assaults to local law enforcement or face misdemeanor charges. 

Under the Clery Act, “campus security authorities” are required to report sexual assault and more than a dozen other crimes. Those authorities include campus police and safety officials, but also other employees who have “significant responsibility” for students and activities, such as housing, discipline and judicial proceedings. Under Title IX, “responsible employees” with authority to take action to redress sexual violence, or who have been deemed mandated reporters by their institutions, or who students reasonably could believe have authority or responsibility over such matters, are required to report discrimination.

“The question for colleges is if X percent of employees are covered by some status, do we want to tell some groups, ‘Yes, you’re a reporter under Clery,’ and tell some groups, ‘Yes, for Title IX,' or something else?” Sokolow said. “If everybody’s a mandated reporter, it simplifies who’s who, and it simplifies the training.”

An all-employee mandatory reporting policy template from ATIXA explains it like this: “The language of the [Clery Act] would allow the college to exclude some faculty some of the time and many professional staff from the obligation to report. Such an approach, however, risks creating confusion for faculty and staff, takes a minimalist approach to the ethical obligation to inform our community about serious crimes and makes the institution more vulnerable to enforcement action.”

The same with Title IX, the template says: “As with other laws, the definition of ‘responsible employee’ under Title IX would allow the college to treat only some faculty and staff as mandated reporters but with the same possibility of confusion and risk of institutional exposure.”

Despite the language about risk and exposure, Sokolow said these new policies are about more than shielding institutions from high-profile lawsuits alleging they’ve dropped the ball on sexual assault.

“That may be the motivation for some institutions, perhaps, but for most institutions, we want to know about what’s happening so we can address it,” he said, estimating that “many dozens” have moved to this kind of policy. “There are so many resources on college campuses that we can direct victims to, to give a quality response.”

Making Students Aware

Some institutions, including the University of Maine, have taken steps to make students aware of their new policies and additional, nonfaculty resources for help. The Orono campus this year asked faculty members and teaching assistants to include language in their syllabuses explaining that they are all now mandated reporters, under a University of Maine System-wide policy.

“The University of Maine is committed to making campus a safe place for students,” reads part of the proposed text. “Because of this commitment, if you tell any of your teachers about sexual discrimination involving members of the campus, your teacher is required to report [Maine’s emphasis] this information to the campus Office of Sexual Assault and Violence Prevention or the Office of Equal Opportunity.”

The text describes what kinds of behaviors are reportable crimes -- sexual assault, harassment, stalking and relationship abuse, for example -- and says that the university “can better support students in trouble if we know about what is happening. Reporting also helps us to identify patterns that might arise -- for example, if more than one victim reports having been assaulted or harassed by the same individual.”

Including such language in syllabuses might solve the problem of faculty members having to explain their status to students in distress. But some professors still find it -- along with the new policy -- problematic. Sandra Caron, professor of family relations and human sexuality at Maine, said she put the wording in her syllabus because she wanted students to be able to make an “informed choice” about coming forward. But, she added via e-mail, “My concern is that although the intent is to help make this a safer campus and to be sure we are being responsive to a victim's needs, some students may feel they cannot talk about an incident for fear of losing control.” She said there’s “also a concern that this will have a chilling effect on the classroom in terms of class discussions or the things a student might write about, as well as the things a student might come to see their professor about.”

Robert Milardo, a professor of family relations at Maine, is working with various faculty groups on campus and within the Faculty Senate to communicate concerns about the new policy to administrators. He said he and colleagues view the mandated reporter policy as “basically one-sided, in that it serves the needs of the institution, the University of Maine, to report and investigate allegations of sexual assault and related issues, but it doesn’t deal effectively with student advocacy.” Students should have a “confidential source they can go to -- and that includes faculty -- to discuss things that are of concern to them,” he said.

Dan Demeritt, a university system spokesman, said that because faculty members work directly with students, the board of trustees “set the expectation that our faculty be university mandatory reporters to optimally create a culture of student safety, care and development.” Professional staff are mandated reporters, as well.

Faculty members also worry about what details they'll have to include in their reports. At Maine, for example, faculty members need to disclose “all relevant details about the alleged sexual discrimination shared by the student that the university will need to determine what happened -- including the names of those involved, any witnesses and any other relevant facts, including the date, time and specific location of the alleged incident.”

Concerns About Privacy

Maine’s policy says that professors should try to explain their reporting obligations before students share their experiences. If a student wants to maintain confidentiality -- that is, if he or she doesn't want a report to be filed -- faculty members should direct the student to an on-campus counseling center or an off-campus rape crisis center. Once a disclosure is made, faculty members are required to report all details, even if the student objects. A professor can inform the university of a student’s preference for confidentiality, but the university doesn’t promise to honor it -- only to weigh the preference that no action be taken against the institution’s "obligation to provide a safe, nondiscriminatory environment for students."

Northern Iowa’s stance is similar; the university says it will make “every reasonable effort” to maintain privacy, but that it can’t guarantee it. MacGillivray said some of her concerns about the mandatory reporting policy could be alleviated by finding a middle ground, such as not having to give the victim’s name. That way, she said, the campus could be put on notice and comply with its legal, statistical reporting obligations without sacrificing anonymity.

Lindsay Cunningham, a university spokeswoman, said whether or not a complainant needs to be identified “depends on the circumstances. If someone wants to pursue charges, they need to be identified. If they want to remain anonymous, it makes it harder for us to provide resources and options.” 

The American Association of University Professors published a report on campus sexual assault in 2013 saying that faculty members, in its view, are not mandated reporters due in part to the chilling effect that status might have on communication with students. AAUP’s also concerned that such policies could limit the academic freedom of faculty members who teach women’s studies or courses dealing with sex -- such as Brod's Just Sex -- in which reports of misconduct might be more likely to arise. Nevertheless, Anita Levy, AAUP’s associate secretary, said she continues to hear from faculty members across the country whose institutions are ignoring their concerns and making them mandated reporters.

“What seems to be happening is that institutions are really going overboard to make sure they’ve dotted all their i’s and crossed all their t’s,” Levy said, in response to widespread criticism of and legal action against universities alleged to have failed to protect students against assault. “Our position hasn’t changed -- we still recommend that faculty members be made mandated reporters only if they’re serving in some kind of legally mandated reporter role, such as a study-abroad advisor or something like that."

'Substitute Parents'?

Levy said faculty members are often the “nearest and dearest,” or “substitute parents” to students on campus, and that any policy forcing victims to come forward before they're ready could strain that important relationship, or violate a trust.

But Sokolow said that characterization might be overstated.

“There are some faculty members who want to be that soft landing and some faculty members who want nothing to do with it,” hence the case for “uniform rules,” he said. For those professors who worry about betraying students’ trust, he added, “I don’t know why faculty members wouldn’t just be able to say to a victim who comes forward to them, ‘Let’s speak hypothetically -- say you're not making a formal report, what would you do? What resources would there be for you?'”


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