What the Therapist Knows

A magistrate judge in New York is seeking to make available the confidential records of a therapist-student relationship, to gain more information about a university's possible Title IX violations.

April 2, 2020
 

A Title IX lawsuit by a former student accused of sexual assault has garnered the attention of legal experts, who are troubled by a magistrate judge’s decision to allow a university therapist’s client records to be made available as evidence.

The conversations between a Syracuse University therapist, said to have served as both a mental health counselor and adviser to an alleged victim of sexual assault, and her student client, should be disclosed because the “interests of justice substantially outweigh the need for confidentiality,” wrote Andrew Baxter, a magistrate judge for the United States District Court for the Northern District of New York, in a March 25 decision about the records. Baxter’s order can be appealed until April 8, or else a redacted version of the therapy records will be made available to all parties involved in the lawsuit this month, he wrote.

Syracuse itself created the risk of having to disclose counseling records by combining the “therapeutic role of counselors” with “the procedural role of advisors” in its counseling center’s Sexual and Relationship Violence Response Team, or SRVRT, wrote Michael Thad Allen, the accused student’s attorney, in a February brief to Baxter. Allen argues his client was treated unfairly under Syracuse's processes for investigating claims of sexual misconduct under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in education institutions that receive federal funding.

The university contends that the disclosure could both violate New York’s state law protecting confidential mental health records and deter future victims of sexual assault from seeking help or reporting incidents. Without a guarantee of confidentiality, the frequency of counseling visits would decline and “students would be left to suffer in silence,” wrote Brittany Lawrence, an attorney at the firm Barclay Damon and counsel to the university, in her brief sent to Baxter.

While the district court decision would not set a precedent of universities being obligated to share counseling records (this responsibility is left to federal appeals courts), Baxter’s order is concerning on a broad basis for the example it could set, said Jake Sapp, deputy Title IX coordinator and compliance officer at Austin College in Sherman, Tex. Sapp conducts regular Title IX research for the Stetson University Center for Excellence in Higher Education Law and Policy.

“If this becomes a new thing, where Title IX attorneys are able to get their hands on these records, that’s going to chill reporters going to counseling resources whether or not they file a claim,” Sapp said.

This argument, echoed by Syracuse, is "hypothetical" and "neither established in evidence nor relevant" to the case currently before the court, which is examining whether the male student received a fair process, Allen wrote in his brief. The university's claim that the records disclosure would dissuade students from reporting sexual assault and harassment is “at best disingenuous,” he said in an interview.

“The best thing Syracuse could do to encourage complaints with real substance is to adjudicate the complaints correctly and fairly, which was not done in my client’s case,” Allen said.

The lawsuit, filed by a former Syracuse graduate student who was expelled for allegedly raping a female student in 2016, accuses the university of conducting a Title IX investigation and sanctioning process that discriminates against male students, which led to what he claims was an “erroneous” expulsion from the university in 2017, according to court records. Attorneys for the male student, called John Doe, and Syracuse have been arguing since early 2019 in district court about the case, which also includes claims that the university failed to give Doe adequate notice and a fair Title IX proceeding, as stated in Syracuse’s handbook on student conduct.

The complainant, a female student called “RP” in court records, initiated an investigation of the alleged rape with the Syracuse Police Department but later withdrew it, according to Doe’s lawsuit. Two months after, Doe said Syracuse began a Title IX investigation into the two students’ third sexual encounter, which he claims was entirely consensual, after RP sought support from a licensed therapist on the SRVRT, which provides counseling to students who have experienced sexual or relationship violence.

This turn of events suggests the therapist, Tekhara Watson, “recruited” RP to file a Title IX complaint with the university’s Office of Equal Opportunity, Inclusion, and Resolution Services, where it handles violations of Title IX, Allen wrote to the court. The question now is whether Syracuse should be required to provide Watson’s communications with RP as evidence, given Watson’s role as both a therapist for mental health treatment and an adviser to RP on her reporting options.

In her argument against disclosure of the records, Lawrence, counsel for Syracuse, referenced New York’s Mental Hygiene Law, which states, “Information about patients or clients reported … at office facilities shall not be a public record and shall not be released by the offices or its facilities to any person or agency outside of the offices.” But the law includes an exception for “an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality,” which would be the case in Baxter’s decision.

Baxter, who already reviewed Watson's records, also said the court had "carefully and stringently redacted" some sections, so that only "advice that related to reporting options and procedures" through Title IX is disclosed.

"The more extensive portions of the records that constitute therapy or treatment records shall not be disclosed to the parties," he wrote in the decision.

The disclosed records will not include mental health treatment, Sarah Scalese, Syracuse senior associate vice president of communications, said in a statement. The university "took all necessary steps to protect counseling records in this matter," she said.

"Syracuse University takes very seriously its legal and ethical obligations to protect student records – especially confidential mental health records, which are never released without consent," she said. "The university will not otherwise comment on this pending litigation, consistent with its normal policy."

The court’s reliance on a university therapist’s account of sharing of resources for clients who may have been sexually assaulted as a reason for records disclosure “is definitely cause for alarm,” said Sarah Nesbitt, a policy and advocacy organizer for Know Your IX, a network of student organizers that supports survivors of sexual violence. Nesbitt declined to comment on the facts of the Syracuse case specifically but wrote in an email that “providing reporting options in response to a client’s disclosure of violence fits comfortably within the scope of counselors’ professional ethics.”

“The possibility that a survivor’s confidential mental health records could be exposed in the future threatens to massively chill help-seeking,” Nesbitt said. “We already know that most survivors never report their experiences to authorities because of a desire to keep that information private. If seeking mental health support carried the same risk of exposure, survivors would almost certainly react the same way and choose not to seek those services.”

The magistrate’s decision to go into a therapist’s confidential client records is “very unusual,” unless there’s a threat of imminent danger, said Peter Lake, director of the Stetson center for higher education law. Courts have been reluctant to reveal such records, and when they do, there are health and safety risks involved, he said.

“When someone in the psychotherapist community gets wind of this, they’ll go off,” Lake said.

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