INTERIM SEXUAL MISCONDUCT POLICY

IV. PRIVACY AND CONFIDENTIALITY

Understanding the Colleges' Commitment to Privacy and Confidentiality and the Limits of Confidentiality

Not all employees can promise confidentiality when they receive information related to misconduct covered by this Policy.  Please read this section carefully to understand these limits as privacy and confidentiality have distinct meanings under this Interim Sexual Misconduct Policy.

The Colleges are committed to protecting the privacy of all individuals involved in a report of sex discrimination and harassment, sexual harassment, sexual violence, stalking, intimate partner violence, and sex- or gender-based harassment that does not involve conduct of a sexual nature.  All Colleges’ employees who are involved in the Colleges’ Title IX response—including the Title IX Coordinator, investigators, and hearing panel members—receive specific instruction about respecting and safeguarding private information.  Throughout the process, every effort will be made to protect the privacy interests of all individuals involved in a manner consistent with the need for a thorough review of the report.

Responsible employees: (offices and employees of the Colleges who cannot guarantee confidentiality) will maintain privacy to the greatest extent possible. The information provided to a responsibility employee (non-confidential resource) will be relayed to the Title IX Coordinator only as necessary to the Coordinator to respond, investigate and/or seek a resolution.

Privacy:  Privacy generally means that information related to a report of misconduct will only be shared with a limited circle of individuals.  The use of this information is limited to those Colleges employees who “need to know” in order to assist in the active review, investigation or resolution of the report.  While not bound by confidentiality, these individuals will be discreet and respect the privacy of all individuals involved in the process.

Confidentiality:  Confidentiality means that information shared by an individual with designated campus or community professionals cannot be revealed to any other individual without the express permission of the individual.  These campus and community professionals include mental health providers, ordained clergy, rape crisis counselors, health care providers, and attorneys, all of whom have legally protected confidentiality.  These individuals are prohibited from breaking confidentiality unless there is an imminent threat of harm to self or others.

An individual who seeks completely confidential assistance may do so by speaking with professionals who have a legally protected confidentiality.  These individuals are referred to as Confidential Resources.  On campus, Confidential Resources available to students are:

  • All staff in the Colleges’ Center for Counseling and Student Wellness (“CCSW”);
  • All staff in the Office of Religious Life; and
  • All staff in Hubbs Health Center.

These resources, including contact information, are discussed more fully in Section VII

Employees may access confidential assistance through the Employee Assistance Program.  Information shared with these resources will remain confidential and will not be shared with the Colleges or anyone else without express permission of the individual seeking services.

Limitations on Confidentiality

Responsible Employees

Employees with supervisory and leadership responsibilities—faculty, coaches, administrators, Resident Assistants, and other student employees with a responsibility for student welfare—are considered “responsible employees” obligated to report information about sexual misconduct to the Title IX Coordinator or any member of the Title IX Team.  (On the other hand, counselors in CCSW, the Chaplain and staff working in the Office of Religious Life, health care providers in the Hubbs Health Center, and staff supporting any of these individuals and functions are NOT considered responsible employees.)

The reports must be made to the Title IX Coordinator.  See Section VII(C)(1)(d).

This obligation derives from Title IX, which requires colleges to take immediate and corrective action if a “responsible employee” knew or, in the exercise of reasonable care, should have known about sexual or gender-based harassment that creates a hostile environment.  The Office for Civil Rights defines a “responsible employee” as any employee who:

  • has the authority to take action to redress the harassment;
  • has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees; or
  • a student could reasonably believe has the authority or responsibility to take action.

Using this definition, all employees with supervisory and leadership responsibilities on campus are considered “responsible employees.” These employees are faculty, coaches, administrators, Resident Assistants, and student Orientation staff.

The Colleges require that all “responsible employees” share a report of misconduct with the Title IX Coordinator or a member of the Title IX Team.  Reports must include all details of which the employee is aware, which may include the name of the Complainant and/or Respondent, the alleged misconduct, the date, location, and time of the alleged misconduct, and any other information the employee has related to the misconduct.

The Title IX Team will undertake an initial assessment of the conduct and the Complainant’s expressed preferences, if any, as to course of action.  As part of its initial assessment and on an ongoing basis, the Title IX Team will determine the necessity for any interim measures or accommodations to protect the safety of the Complainant or the community.  In addition, the Title IX Team will consider the Complainant’s expressed preferences as to a course of action on an ongoing basis.

Weighing a Request for Confidentiality

Where a Complainant requests that no personally identifiable information be shared with the Respondent or that no formal action be taken, the Colleges will balance this request with its dual obligation to provide a safe and non-discriminatory environment for all HWS community members and to remain true to principles of fundamental fairness that require notice and an opportunity to respond before action is taken against a Respondent.  When weighing a Complainant’s request for confidentiality or that no investigation or discipline be pursued, the Colleges will consider a range of factors, including but not limited to the following:

  • the increased risk that the alleged perpetrator will commit additional acts of sexual or other violence,
  • whether there have been other sexual violence complaints about the same alleged perpetrator;
  • whether the alleged perpetrator is a repeat offender, has a history of violent behavior, arrests or records from a prior school indicating a history of violence; and
  • whether the alleged perpetrator threatened further sexual violence or other violence against the reporting student or others;
  • whether the incident represents escalation in unlawful conduct on behalf of the alleged perpetrator from previously noted behavior;
  • whether the sexual violence was committed by multiple alleged perpetrators;
  • whether the sexual violence was perpetrated with a weapon of force;
  • whether the Complainant is a minor;
  • whether the Colleges possess other means to obtain relevant evidence of the sexual violence (e.g., security cameras or personnel, physical evidence); and
  • whether the reporting student’s report reveals a pattern of perpetration (e.g., via illicit use of drugs or alcohol) at a given location or by a particular group.

While there is no precise formula and factors will be weighed on a case-by-case basis, in weighing these factors, any factor related to the Colleges’ obligation to provide a safe and non-discriminatory environment for all HWS community members will be given great weight (for example, a pattern or potential for repetitive behaviors will weigh heavily in favor of proceeding with an investigation).  The Colleges will take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation, but their ability to do so may be limited based on the nature of the request by the Complainant. Where the Colleges are unable to take action consistent with the Complainant’s request, the Title IX Coordinator or a member of the Title IX Team will inform the Complainant about the chosen course of action, which may include the Colleges seeking disciplinary action against a Respondent.  This will necessarily limit the Colleges’ ability to keep the complaint confidential to the extent that, for example, the Colleges must speak with witnesses who may have relevant information related to the sexual misconduct.  In the event that the Colleges determine that they must proceed despite a Complainant’s request for confidentiality or not to proceed, the Colleges will immediately notify the Complainant and take immediate action as necessary to protect and assist the Complainant.  The Colleges will offer and assist with accommodations to support the Complainant, including changing living accommodations and/or class schedules, arranging for tutoring, offering counseling, and any other reasonable and available accommodations for the circumstances, regardless of the reporting choices pursued.

Alternatively, the course of action may also include steps to limit the effects of the alleged misconduct and prevent its recurrence that do not involve formal disciplinary action against a Respondent or revealing the identity of the Complainant.  Depending on the circumstances, such steps might include increasing Campus Safety presence at a particular location, restricting access to a particular location, or rolling out an awareness campaign related to particular conduct that is targeted to a particular group or location or open to the entire community.

1. Public Awareness Events

Students should feel free to participate in preventive education programs and access resources for survivors.  Public awareness events such as “Take Back the Night”, candlelight vigils, protests, other public events or forums at which students disclose experiences of sexual violence or other forms of Prohibited Conduct are not considered notice to the school for the purpose of triggering an individual investigation unless the survivor initiates a complaint.  The Colleges may use any information provided at such an event to inform its efforts for additional education and prevention efforts.

Timely Warnings

If Campus Safety and other necessary Colleges’ administrators determine that a report of misconduct discloses a serious or continuing threat to the HWS community, the Colleges may issue a campus-wide timely warning (which can take different forms, including an email to campus) to protect the health or safety of the community.  This is a case-by-case analysis and often hinges on whether the threat is ongoing.

According to the U.S. Department of Education’s Handbook for Campus Safety and Security Reporting, whether an institution issues a timely warning is determined on a case-by-case basis, considering all the facts surrounding a crime, including the following factors:

  • The nature of the crime. This means that you should consider the type of crime that was reported. Was it a Clery crime?¹  Did two students get drunk and attempt to steal a golf cart from the campus one night, or does it appear that professional car thieves are preying on your campus?
  • The continuing danger to the campus community. This means that after a Clery crime is reported you should consider whether your students and employees are at risk of becoming victims of a similar crime. For example, if a rape is reported on campus and the alleged perpetrator has not been caught, the risk is there. If the alleged perpetrator was apprehended, there is no continuing risk. Does a criminal incident appear to be a one-time occurrence or does it fall into a pattern of reported crimes? For example, if your students set some posters on fire after your school’s team lost the homecoming football game, the arsons are probably a one-night event. If an unknown person is randomly setting fires on campus, there is a continuing threat.
  • The possible risk of compromising law enforcement efforts. This factor does not mean that in the event of a serious or continuing threat to your students or employees you should decide not to issue a timely warning. It means that you should take law enforcement efforts into consideration when you issue a warning. For example, you should warn students if there is a serial rapist preying on female joggers along the bike paths running through campus; you should not compromise law enforcement efforts by disclosing that two undercover female officers have been assigned to patrol the bike path.

The Handbook for Campus Safety and Security Reporting February 2011 U.S. Department of Education, https://www2.ed.gov/admins/lead/safety/handbook.pdf (pp. 112-113).

The timely warning will not include any personally identifying information about the Complainant, such as name, race, age, or class year.

At no time will the Colleges release the name of the Complainant to the general public without the express consent of the Complainant.  The release of the Respondent’s name to the general public is guided by the Family Educational Rights and Privacy Act (FERPA) and the Clery Act.

Compliance with all Applicable Laws Related to Privacy and Confidentiality

All Colleges proceedings are conducted in compliance with the requirements of FERPA, the Clery Act, 2013 Re-authorization of the Violence Against Women Act, Title IX, and state and federal law.  No information shall be released from such proceedings except as required or permitted by law and Colleges’ policy.

Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery or Clery Act).

Preparing Students to Lead Lives of Consequence.