‘Without Her Consent’

This week’s 65-page lawsuit filed against Harvard University over the handling of sexual misconduct complaints involving anthropologist John Comaroff brims with startling allegations. Among them: Comaroff forcibly kissed, groped and made sexual comments to multiple female graduate students; threatened whistle-blowers that both he and his wife, fellow Harvard anthropologist Jean Comaroff, would ice them out professionally if they kept talking; loudly compared himself to Harvey Weinstein in front of students and faculty members at a 2017 dinner; and told women who confronted him about his behavior that the “rumors” couldn’t be true because he was impotent.

Ultimately, however, the lawsuit is against Harvard, not Comaroff, who is on unpaid administrative leave for the semester and who continues to strongly deny all allegations of impropriety.

Over all, the complaint—filed by three female graduate students in anthropology—alleges that Harvard enabled Comaroff’s behavior for years by ignoring complaints about him and that it only investigated after his accusers went public. But one of the most startling allegations about Harvard’s actions, in particular, is that the university obtained plaintiff Lilia Kilburn’s “private therapy records without her consent and disclosed them to Prof. Comaroff” as part of an internal investigation.

Notes From a Private Therapist

Here’s a bit more from the lawsuit: “In 2020, [Harvard’s Office for Dispute Resolution] contacted Ms. Kilburn’s psychotherapist, a private therapist unaffiliated with Harvard, and obtained the psychotherapy notes from her sessions with Ms. Kilburn. ODR did not obtain Ms. Kilburn’s consent for the release of those records.” After obtaining the notes without Kilburn’s consent, the lawsuit continues, “ODR then withheld the full notes from Ms. Kilburn, redacting swaths of the notes and refusing to disclose the redacted portions even as ODR’s investigator grilled her about the redacted contents during an interview.”

Harvard then allegedly provided the notes to Comaroff as part of its draft report on the sexual misconduct case against him. Comaroff, in turn, “deployed the notes to gaslight Ms. Kilburn, claiming that she must have imagined that he sexually harassed her because she was experiencing post-traumatic stress disorder—a condition that she developed as a direct result of his conduct.”

In lawsuits where emotional distress is alleged, plaintiffs’ psychotherapy records can be subpoenaed, purportedly to see if there’s documented evidence of such distress. And according to current federal guidance on campus sexual misconduct, evidence that enters the investigatory record is available to both sides, accuser and accused. So while it’s uncomfortable that Comaroff and others reviewing the case would have seen evidence about Kilburn, it’s not unusual. (Retaliation against accusers is not permitted, of course.)

Additionally, in a contested practice, colleges and universities have been known to look at students’ mental health records as part of internal investigations—when the student is seeing a provider who works for the institution. But Kilburn says she was seeing an off-campus counselor unaffiliated with Harvard and that she never gave Harvard permission to ask to see her psychotherapy notes. She hadn’t filed a lawsuit at that point, either, meaning that the university couldn’t have legally compelled the therapist to hand over Kilburn’s file.

So how did Harvard allegedly obtain a Title IX complainant’s third-party, private mental health records without her consent? It remains something of a mystery for now.

In response to questions about this specific claim, Harvard in a statement said it “disputes the allegations of the lawsuit brought by Sanford Heisler Sharp [the plaintiffs’ law firm], which are in no way a fair or accurate representation of the thoughtful steps taken by the university in response to concerns that were brought forward, the thorough reviews conducted, and the results of those reviews.” 

Harvard provided background information about how its dispute resolution office works, saying that it doesn’t contact a party’s medical care provider except when a party has indicated that the provider has relevant information that the party wants the office to consider. In that case, the office receives information from the care provider only with the party’s consent.

Multiple legal experts said Wednesday that this is the established protocol across higher education.

Asked for more details about what happened, Kilburn’s lawyer, Carolin Guentert, said that Kilburn’s therapist is a private provider unaffiliated with Harvard, and “we understand that ODR contacted Ms. Kilburn’s therapist and obtained the psychotherapy notes from her sessions with Ms. Kilburn, without first seeking Ms. Kilburn’s written consent as required under HIPAA,” the Health Insurance Portability and Accountability Act of 1996, which governs patient privacy.

Asked if Kilburn ever signed a privacy waiver with her therapist that would have granted the university access to her records, Guentert said Kilburn “has no recollection of signing such a waiver, nor has Harvard provided one to us.”

Guentert further said (as is also alleged in the lawsuit) that Harvard “refused to turn over these records to Ms. Kilburn or to us when we requested them in September 2021.”

Several lawyers told Inside Higher Ed that Harvard would have violated federal law in refusing to share with Kilburn any mental health records it had on her, as those would have become her own educational records once they became part of the sexual misconduct investigation.

‘No Reason’ Why

Even more seriously, these experts said that Harvard would have had no right to obtain Kilburn’s mental health records from a third-party provider without her consent.

Andra J. Hutchins, a Massachusetts-based attorney who specializes in education law, said that therapy records are protected by psychotherapist-patient privilege (something akin to attorney-client privilege).

“Unless the school has an agreement with and a release from the student to provide access to those records or speak to the student’s therapist—which can be the case if a student is placed on involuntary leave due to a mental health issue—there should be no reason that a school would be able to obtain a student’s psychotherapy records,” she said.

As far as investigations under Title IX (the federal law against gender-based discrimination in education) go, questions from the investigator seeking information about the student’s psychological records aren’t permitted unless the student has given written consent, Hutchins added. “Schools have to follow state and federal health-care privacy laws throughout the Title IX process. I can’t speculate as to how or why these records were released.”

Daniel Carter, president of Safety Advisors for Educational Campuses, said that “it is absolutely illegal and improper for an institution of higher education to obtain one of their students’ private therapy records from a third party. There’s no circumstance under which that is permissible without their consent.”

Brett Sokolow, chair of TNG, a strategic risk management group, said that the sequence of events described in the lawsuit would have involved multiple violations of different kinds—including those by Kilburn’s unnamed therapist, who “would have to decide to violate her client’s confidentiality to disclose.”

In the end, he said, “Either Harvard can produce a written consent to release records, signed by Kilburn, or it can’t.”