The Problem with "Required Reporting" Rules for Sexual Violence on Campus

04/25/2016 11:50 am ET Updated Apr 24, 2017

We Must First Understand the Fundamental Injuries of Sexual Violence

Sexual violence robs survivors of autonomy and control. This is its fundamental injury.  However, the injury of disempowerment doesn't always end with the assault.  A second fundamental injury of sexual violence can occur after the event is perpetrated when other people -even well-meaning people - learn about the violence and then further intrude on the survivor's autonomy and control.  This may happen, for instance, when the survivor discloses the event to a trusted
other who then shares the private information with official sources against the survivor's wishes.

Across the nation universities, colleges, and schools are struggling with how to address sexual violence on campus.  One of the issues at the heart of this struggle has been called "required reporting" -- when someone at the institution learns that sexual violence has occurred, should they be required to report it to official university sources?  Does it depend on who (peers, faculty, counselors, etc.) learns about this violence?  What information should be reported?  What should happen to the information once it is reported?  What about the wishes of the student or employee who was allegedly victimized - should that person's wishes be considered?  Do survivors' opinions matter?

I am alarmed by what I believe is a developing fundamental threat to a survivor's liberty to determine what happens with her or his private (and especially private sexual) information. This threat is coming, in part, from increasingly stringent "required reporting" rules many universities are imposing on faculty - that all faculty must report sexual violence no matter the wishes of the survivor.

"Required Reporting" Might Seem to be a Good Idea -- but it is Not

At first blush "required reporting" might seem to be a good idea.  Many well-meaning people believe that sexual violence should always be reported so as to prevent further violence, meet survivor needs for accommodation, and track repeat offenders, never mind protect the institution from legal liability.

However, required reporting is destructive when the survivor or student does not want their private information shared. Taking away autonomy from a survivor of sexual violence is a further betrayal of that survivor.  Rather than help a survivor heal, institutional rules for required reporting can actually further victimize survivors of sexual violence.

Social Science Research Reveals the Importance of Respecting Survivor Autonomy

Social science research is clear about trauma disclosure and about about the harm of violating survivor autonomy.  First, we know from research that disclosure of sexual violence is often delayed, that it almost always happens as a process over time, and that it is highly risky for the survivor in that a good response can help but a bad response can cause profound harm   We also know that most victims of sexual violence first disclose not to receive practical help or action, but for emotional reasons.

When that first disclosure goes well victims are much more likely to later seek help, promote action, etc.   We know as well that victims turn to those they most trust when they make that first disclosure and we know that in schools that person is often a teacher or faculty member.   We furthermore know that about 90% of sexual violence survivors currently do not report to official university sources, ever.

Trusting Relationships with Faculty are Crucial for Students to Have Equal Access to Education

There is another important angle here as well: the importance of trusting relationships to educational access.  Education occurs in the context of relationships between teachers and students.  The more profound a positive relationship, the better the educational outcome. What is it to have a profound and positive relationship between a teacher and a student, a faculty member and her advisee?  That relationship is one in which the student has the freedom to tell the faculty member about her experiences as a student in private.  Think about what happens when a graduate student, for instance, who trusts her advisor most in the institution, cannot safely tell her about a profoundly relevant experience within the context of her education at the institution? Survivors typically want to start the disclosure process with someone they most trust.  It is deeply destructive to a survivor's rights to an education to be deprived of a trusting relationship with her mentor and to be silenced in this way. 

Or think about what happens when a student is in a memoir-writing class and her professor says "write about what is most important to you in your life" but then adds "but not your sexual victimization experience here unless you are okay with my passing that information on to someone you may not know."  Whether the students trust in these cases is simply violated because they did not know the information would be passed on, or the student gets the message in advance (through a syllabus or other "do not ask; do not tell" message) and thus must silence themselves in order to protect their own privacy, I submit to you that is institutional betrayal.  That student is being deprived of freedom of speech and freedom of educational access.

Do Not Put Addressing Sexual Violence on the Backs of Survivors of that Violence

While the institution has a duty to prevent continued sexual violence, it must not come on the backs of survivors of that violence.  A concept at the core of my argument is the known toxicity of institutional betrayal. When people are dependent on an institution that then betrays them, they are likely to be harmed. Institutionally required reporting can betray people in at least two ways: (1) by ignoring survivors' wishes about how their private information is shared when they do disclose, and (2) by conveying to survivors that if they do share information it will be passed on without their consent and thus possibly taking away from them crucial access to the person they most trust in the institution.

This is not to say that all reporting is bad. Reporting when done with the survivor's consent and with appropriate safeguards can have many good consequences for the survivor and others.  Furthermore, if a survivor does want a report pushed forward, the institution can do terrible damage to the survivor as well as future victims by dead-ending and/or covering up the report.   The fundamental first principle here is respecting the survivor's autonomy.  Disrespect of autonomy causes harm.

Policies that  Respect Survivor Autonomy

For me the whole issue is really is pretty simple.  If a survivor or student believes a report will result in action but it dead ends, that is terribly damaging.  If a survivor or student believes a report will be held in confidence and it is shared, that is also hurtful betrayal.   Similarly if a student survivor requires privacy but believes they cannot get it from the people they most trust they have a high probability of not reporting to the institution at all.

There is much debate in universities and schools about whether the law actually requires that faculty and teachers be so-called "responsible employees" who necessarily must report disclosures -- or if instead this is something universities are imposing beyond what is absolutely required.  My students and I have researched disclosure, trauma, betrayal, and institutional betrayal for decades. I have no doubt from conducting this research and reading the research of my colleagues, that one of the most important things we can do for survivors is put them in charge of their personal information.  If the law truly does not allow that, then we need to change the law.  Alternatively, if the law does allow it but universities are making policy that is more oppressive than necessary, we need to change that.  However we do it, we need to put control back into the hands of survivors.

So what to do about reporting policies?  Start with the rights of the individual to control their private information.  Prioritize our values: liberty, freedom, privacy, trust, student-faculty relationships, and equal access to education.   Begin any policy with a plan to help faculty find out what the student or survivor wants to have happen with his or her private information. If that person wants the information passed forward, the person receiving the report should pass it forward.  If that person wants privacy, the person receiving the report should provide privacy.  Understand too that the survivor wishes may change with time.  While a bell cannot be un-rung, a silent bell can be run the next week, the next month, if and when the survivor is ready.

In both ending sexual violence and protecting survivor or student control of personal information, we must promote liberty and autonomy and gender equality. 

We should begin with a fundamental tenet of respecting student and survivor autonomy and liberty - that the student/survivor gets to determine what happens with their private information and we go from there.

Required Reporting Violates Student Rights

To tell a sexual assault survivor they cannot speak freely with the person they most trust in the context of the assault (if it turns out a faculty member is that person which is especially likely for graduate students) without losing control over their private (and especially private sexual) information is simply cruel and stomps on their liberties.  Furthermore it is counter-productive in that awareness of this policy will chill reports.  (It is in the recommended syllabus statement a version of: Don't ask; don't tell.) 

Who are the students and survivors most impacted by these "required reporting" rules?  They are disproportionally women of all races. They are disproportionately people of color, LGBT, and other groups who have higher victimization rates. Furthermore, mandating reporting to those minority individuals who have justified mistrust of societal systems, including universities, is likely oppressive in its own right. Thus these "required reporting" rules violate - in my opinion - the spirit of Title IX itself and--with its disproportionate impact--interrupt the pursuit of equality for all.

While there are many other important goals we need to consider, including tracking repeat offenders, we must employ ways that do this (such as provided by the Callisto Project) without trampling on the civil rights of survivors and students.   Some of those ways can directly include faculty: educate our colleagues and students about Title IX, sexual violence, and institutional betrayal; have and provide information regarding resources for sexual assault and Title IX in all syllabi (without the "don't ask don't tell policy" that is so chilling); support campus research using scientifically-sound victimization surveys; provide information on how to be a good listener; and conduct research and provide education on how to disrupt a culture of sexual assault.

Respecting Rights Will Likely Lead to More, Not Fewer, Reports

The practical impact on reporting is this: if we respect student and survivor rights, we are very likely to ultimately inspire more official reports.  Remember, only 10% of victims are reporting at all; if we can be good listeners, living up to the trust students place in us, I am pretty sure we will see that number rise.  If we go the other way - if we are not trustworthy and respectful of survivor autonomy - I fear we will see the percentage of survivors reporting fall even lower.

This is Really Very Simple

The bottom line is this:  we do not need to choose between ending violence and supporting freedom of speech, liberty, and privacy.  In fact, ending sexual violence is about respecting freedom, liberty, and privacy.

And sure, there will be some exceptions to a survivor-lead reporting policy.  There are always exceptions, such as when there is imminent danger to self or other or there is information regarding the abuse of a minor.  But most of the reports of sexual violence on campus do not meet these conditions. 

Here is how it should work for trusted faculty and teachers:

(1)    Our duty as faculty members is to our students.

(2)    If a student wants a report to move forward then it must move forward. 

(3)    If a student wants confidentiality then we must provide it.

(4)    Harm comes from not respecting the rights and autonomy of individuals.

Adopting policies guided by these principles with help stop sexual violence.  We can do this by respecting suvivor freedom and dignity.