The requirement that college employees report campus sexual assaults is designed with an important goal in mind: to ensure that no incident gets swept under the rug.
If a student is assaulted on a Friday night and immediately informs a resident adviser or faculty member, that employee must notify the college’s Title IX coordinator as soon as possible. The coordinator then must investigate the student’s claims, as required by Title IX, the federal gender-equity law.
One consequence of such a process, however, is that if students want to keep a sexual assault confidential, at least initially, it’s not always clear whom they can go to on the campus for help. That’s where a confidential adviser can step in, says Jill Dunlap, director of the Advocate Office for Sexual and Gender Based Violence and Sexual Misconduct at the University of California at Santa Barbara.
Some institutions for years have had on-campus advisers or advocates, like Ms. Dunlap, who deal primarily with sexual-violence cases. Other colleges have recently hired or are searching for such staff members.
At least four states have considered legislation in the past 15 months requiring their colleges to designate confidential advisers for sexual violence; it became law in Connecticut, and in Illinois a bill is awaiting the signature of Gov. Bruce Rauner, a Republican. And proposed federal legislation known as the Campus Accountability and Safety Act, which featured prominently in a U.S. Senate hearing on sexual assault last month, would require every college to have such an adviser.
Under the bill, the advisers would inform victims of sexual assault about their reporting options, make accommodations such as class-schedule changes, and support them through the campus-judicial or criminal-justice process, without triggering an investigation right away.
However, there are conflict-of-interest questions and legal issues at stake, some experts say. If the adviser is employed by a college, can he or she objectively counsel an alleged victim if those duties diverge from the interests of the institution? And what happens to confidentiality if an adviser is subpoenaed as part of a criminal investigation?
The debate has drawn attention to the often-murky subject of confidentiality and campus sexual assault. College officials have to balance victims’ desire to retain control over their own cases while complying with federal law and keeping campuses safe, a duty that could warrant removing a perpetrator from a campus quickly and overriding a victim’s request for privacy.
Robb Jones, general counsel for claims management at United Educators, a risk-management and insurance firm that works with colleges, calls confidentiality “one of the most controversial and difficult concepts” in Title IX compliance.
Increasing Reports
If colleges aim to embrace a victim-centered approach, students should have a choice of when and how to get campus officials or local police forces involved, says Holly Rider-Milkovich, director of the Sexual Assault Prevention and Awareness Center at the University of Michigan at Ann Arbor.
Ms. Rider-Milkovich says she and the other full-time confidential advocates at Michigan work outside of the Title IX process to bridge that gap and provide victims with immediate care and information.
“Sometimes it doesn’t matter if you have 15 amazing services if the process of accessing those services is overwhelming or unclear for survivors,” she says.
Confidential advisers generally receive the same training as community-based sexual-assault advocates, and they must also become educated on college-specific regulations like Title IX and the Clery Act. Recent job postings for full-time advocate positions indicate that colleges are looking for candidates with advanced degrees in psychology, social work, or similar fields.
The University of California has at least one adviser on every campus. At the Santa Barbara campus, which has five, staffing levels have increased in recent years. Ms. Dunlap says she and her colleagues can help with academic arrangements or dormitory changes, and they can support a victim through a campus or criminal investigation if the student decides to pursue that route.
Angela Fleischer, student-services case manager and confidential advocate at Southern Oregon University, says having an advocate on the campus “is so much more than a phone call or a referral to an address,” which can be the case with colleges’ counseling services. “It’s someone saying, I actually know these detectives, and I can actually call them for you,” she says.
A central goal of a confidential adviser, some experts note, is increasing the number of students who come forward about their assaults. Southern Oregon’s approach has worked, Ms. Fleischer says.
Since the confidential-advising program opened last fall, the number of students reporting sexual assaults has increased substantially. She estimates that more than three-quarters of cases that involve a crime and make use of confidential advising eventually have interaction with law enforcement. And Ms. Dunlap, of Santa Barbara, says that since her office increased to its current size, there has been nearly a threefold increase in the number of students seeking services.
The role of confidential adviser is becoming more professionalized, she adds. She is working with L.B. Klein, a former confidential advocate at Emory University who now works as an independent consultant on gender-based violence issues, to form the Campus Advocates and Prevention Professionals Association, which will start officially this month.
She hopes the group will help advocates share expertise and offer advice on proposed legislation, as well as come up with uniform training standards for campus advisers.
Conflicts of Interest
But as more colleges hire such advisers, a spotlight is being cast on the limitations of confidentiality and sexual assault.
Confidential advisers’ duties, like helping a student move to a new dorm, could put them in a position where they are interacting with colleagues who are required to report an incident, potentially compromising the confidentiality of students’ information.
And some states don’t protect the legal privilege of sexual-assault advocates, which leaves them vulnerable to being subpoenaed if a student pursues a criminal investigation, says Ms. Klein. That issue might surface more often in the future because lawyers for accused students are becoming increasingly aggressive, adds Mr. Jones, of United Educators.
Dealing with the landscape of confidentiality and sexual assault requires a nuanced approach, he says. Simply hiring an adviser for every campus, as the Campus Accountability and Safety Act would do, he says, “is likely to cause more confusion and conflicts.”
Additionally, some sexual-assault experts aren’t sure that a college-employed confidential adviser can give students unbiased support.
“You can’t have someone who works for the school say they represent the interests of the survivor because they don’t,” says Laura L. Dunn, executive director of SurvJustice, an anti-sexual-violence group.
Dana Bolger, co-director of Know Your IX, a student-led prevention-advocacy group, says that while she was a student at Amherst College, the victim advocate on the campus was assigned other duties that made some students reluctant to trust her as a confidential resource.
Particularly for campus or legal proceedings, Ms. Dunn prefers the approach formalized by the 2013 reauthorization of the Violence Against Women Act. It gives students the right to choose a third-party adviser, such as a counselor or a lawyer.
Ms. Dunlap, of Santa Barbara, emphasizes that she and her staff are committed to serving victims’ interests. She points out that many off-campus advocates aren’t trained to handle the complexities of a campus-based Title IX investigation.
She also says she is well aware of the challenges of confidentiality. When she makes a class-change request for a student who wants to keep an incident confidential, she says, “we can leave things as vague as, they’re working with our office,” ensuring that a faculty member won’t have enough information to feel compelled to report.
Ms. Fleischer, of Southern Oregon, notes that even when she is speaking with students in confidence, she gives them a detailed written explanation about the limitations of that confidentiality.
The bottom line, Ms. Bolger says, is that while confidential advising on sexual violence might look different at large public universities versus small private institutions, it should be a priority for colleges.
Still, Mr. Jones says, there will ultimately be instances when college officials must override confidentiality to get a dangerous person, such as a repeat sexual offender, off the campus.
“Confidentiality and empowering survivors is important,” he says. “But an equally important issue is bringing predators to justice. You have to reconcile these competing interests in some way.”