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The Chilling Effect of Mandatory Reporting of Sexual Assault

Imagine that you are a college freshman who has summoned the courage to seek advice from a trusted professor. But when you review the course syllabus you find a warning, in bold type, that your professor is required to report the content of any conversation that might indicate the occurrence of sexual violence, or any kind of gender discrimination, on campus. This is precisely what could happen at a growing number of college campuses. Moreover, in most cases, the institution reserves the right to conduct an investigation into what the faculty member discloses, even if the student objects.

Faculty members have rightly expressed concern that universal mandated-reporter policies are “basically one-sided,” serving institutional needs but not addressing the needs of students. Have administrators who support such policies ever stopped to consider how students think? It is precisely the most vulnerable students, those who most need a protected space in which they can share a troubling experience, who will be least likely to tell their stories if they cannot expect their communications to be kept confidential.

Colleges must try to keep students safe. At the same time, they must acknowledge their students’ legal rights, including due-process rights affirmed by state and federal courts. They must also accept their students’ needs to make choices that promote intellectual and personal maturity, even if some of those choices involve taking risks. Finding the right balance among these values has always been challenging, especially in responding to student misconduct.  But institutions abrogate their responsibility to genuinely address the challenges when they adopt policies that place institutional anxiety about public censure above concern for their students’ well-being.

Consider what it means for an institution to designate all of its faculty members as “mandatory reporters of sexual assault.” The policy effectively demands that every faculty member disclose the details of any student account of a sexual assault, whether it has been expressed in a course assignment, a classroom discussion, or a private conversation. Faculty will be required to make the disclosure to campus officials, even if the student has expressly indicated a desire not to file an official complaint. These requirements will have a chilling effect on students’ willingness to talk about difficult experiences with anyone on campus, even those experiences that may have nothing to do with sexual violence.

Federal and state laws require colleges to report statistics about crimes that occur on or near their campuses. They also require them to identify employees (sometimes even specially trained faculty members) to serve as “campus security authorities” who collect information about crimes and disseminate it to campus reporting offices. But the statutes relevant to reporting sexual assault — most notably, the Campus Security Act, known as the Clery Act, in memory of a young woman murdered in a college residence — have long been interpreted as allowing post-secondary institutions to exclude most faculty members from any mandatory reporting requirement.

The institutions that have now decided to reject this interpretation are giving their faculty a license to violate student privacy, to undermine the confidentiality of a relationship that depends upon  mutual trust, and to override the wishes of students who may not be prepared to tell their stories to campus officials.

The Association of Title IX Administrators, Atixa, defends such policies as a way of avoiding “confusion” about who has reporting responsibilities, and thereby strengthening an institution’s ability to meet its reporting obligations. But the primary goal of sexual-assault policies should be to ensure student well-being, not to protect the institution against public censure. Atixa, and the colleges who have adopted their recommendation on mandatory reporting, have simply got things the wrong way around.

Of course, in an elementary- or secondary-school setting, one of the most important means of promoting student welfare is to require schoolteachers to report any possibility of child abuse.  Indeed, schoolteachers must regularly place concern for a child’s vulnerability above concern for the child’s autonomy. But when teaching or advising college students, an instructor must often put autonomy first: encouraging the young adults with whom they interact to find their own voices and, in particular, to learn how to stand up for themselves when they have been wronged. As the American Association of University Professors has urged, faculty members can best support a victim of sexual violence by explaining procedures for dealing with their concerns and offering assistance in “navigating the campus bureaucracy.”

To override a college student’s wishes in the matter of reporting suspected sexual violence is especially problematic, since sexual violence can be a particularly insidious kind of coercion, undermining a victim’s sense of control over the most personal details of human experience. Colleges should not be in the business of further wresting a student’s control over those details. Moreover, since most victims of sexual violence are women we must reject any policy that makes us complicit in cultural institutions and practices that tend to discourage young women from speaking in their own voices.

Students, families, and lawmakers rightly challenge our nation’s colleges and universities to strike a better balance than we have so far managed among the disparate values that colleges should promote. But the solution to the problem is not to adopt policies that consistently elevate one of those values over the others, even if the value being elevated is public accountability. We must reject any demand to place institutional compliance with reporting requirements above concern for the welfare of students.

Michele Moody-Adams is a professor of political philosophy and legal theory at Columbia University, and a former dean of Columbia College there.

 

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