Posted on February 17, 2018 here by S. Daniel Carter
Following several high-profile campus sexual assault incidents, Utah’s legislature recently advanced a bill, HB 254, out of their House Judiciary Committee that would provide for colleges and universities to report sexual assaults to “off-campus law enforcement” over the objections of adult victims if there is an articulable threat. While this may seem like a common-sense solution to some, it is a horrible idea that will chill reporting, and decrease the chances of threats being reported to the police and survivors getting the help they need. It may also be at odds with federal law on the subject, and certainly would be at odds with the spirit of that law.
While there is limited data on this subject, as only two states – California and Virginia – have enacted somewhat similar laws in just the last few years, my opinion is one informed by having worked directly with campus sexual assault survivors since 1991. For them the main issue is the loss of control. As a survivor they lost control of their own bodies when they were assaulted. Taking away their control again is typically among their greatest fears, and precisely what such a policy would accomplish. Even the mere possibility that they may lose control of the report is enough to lead to this fear, so even a limited mandatory reporting requirement presents a problem.
The data that does exist bolsters this view. “Know Your IX and the National Alliance to End Sexual Violence (NAESV) conducted an online survey in March 2015 to gauge survivors’ beliefs about the criminal justice system, victim autonomy, and reporting. Almost 90% of survivors said that campus victims should retain the right to choose whether and to whom to report. Eighty-eight percent (88%) said that, were campuses required to turn rape reports over to the police (without survivors’ consent), they believe fewer victims would report to anyone at all. Seventy-two percent (72%) were concerned that such requirements would lead to survivors being ‘forced to participate in the criminal justice system / go to trial.’”
Federal student privacy guidelines hold that nothing in the law “prohibits an educational agency or institution from contacting its law enforcement unit, orally or in writing, for the purpose of asking that unit to investigate a possible violation of, or to enforce, any local, State, or Federal law.” Reporting is generally permitted only to the institution’s police department, not off-campus police. The only exception is that an “institution may disclose personally identifiable information from an education record to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.” (Emphasis added)
Additionally, the federal Jeanne Clery Act requires that colleges and universities afford adult sexual violence survivors control over whether or not their incident is reported to police. Specifically, institutions must afford them options to “Be assisted by campus authorities in notifying law enforcement authorities if the victim so chooses” or to “Decline to notify such authorities”. This was enacted recognizing that supporting survivors in going to law enforcement is likely to be more effective than forcing them to.
Mandatory reporting to off-campus police isn’t the solution to campus sexual violence. A robust system for supporting survivors, and a thorough disciplinary process that affords safeguards for both accuser and accused alike is the proper course of action. Instead of potentially re-victimizing survivors states should support their colleges and universities in taking these steps.
