Sexual Misconduct – Confidentiality, Privacy,
and Reporting Policy
Different people on campus have different reporting responsibilities and different abilities to maintain confidentiality, depending on their roles at the university and upon university policy.
When consulting campus resources, all parties should be aware of confidentiality, privacy and mandatory reporting in order to make informed choices. On campus, some resources can offer you confidentiality, sharing options and advice without any obligation to tell anyone unless you want them to
Other resources are expressly there for you to report crimes and policy violations and they will take action when you report your victimization to them. Most resources on campus fall in the middle of these two extremes. Neither the university nor the law requires them to divulge private information that is shared with them except in certain circumstances, some of which are described below. A victim may seek assistance from these university officials without starting a formal process that is beyond the victim’s control, or violates her/his privacy.
At Barry, all faculty and staff (with the exception of custodial staff and food service workers) are considered “responsible employees”, meaning they have a duty to report.
To Report Confidentially
If one desires that details of the incident be kept confidential, they should speak with:
- Mental health counselors who practice in the University’s Center For Counseling and Psychological Services;
- The Victim Advocate
- The University Chaplain, or any member of the clergy hired by the University to perform pastoral duties
- Off-campus rape crises resources
Campus counselors are available to help you free of charge, and can be seen on an emergency basis. In addition, you may speak on and off-campus with members of the clergy and chaplains, who will also keep reports made to them confidential.
If you are the victim or a witness of a crime and do not want to pursue action within the University system or the criminal justice system, you may still want to consider making a confidential report. With your permission, a designee of the Office of Public Safety can file a report on the details of the incident without revealing your identity.
The purpose of a confidential report is to comply with your wish to keep the matter confidential, while taking steps to ensure the future safety of yourself and others. With such information, the University can:
- keep an accurate record of the number of incidents involving students, employees, and visitors
- determine where there is a pattern of crime with regard to a particular location, method, or assailant
- alert the campus community to potential danger
Reports filed in this manner are counted and disclosed in the annual crime statistics for the institution.
Non-confidential reporting options
Students are encouraged to speak to the Dean of Students to make formal reports of incidents. However, students may also notify other officials of the University such as deans, vice presidents, faculty, administrators and campus public safety. The University considers these people to be “responsible employees” (or Mandatory Reporters). Notice to them is official notice to the institution and they will notify the Dean of Students of reported incidents. You have the right and can expect to have incidents of sexual misconduct to be taken seriously by the institution when formally reported, and to have those incidents investigated and properly resolved through administrative procedures. Formal reporting means that only people who need to know will be told, and information will be shared only as necessary with investigators, witnesses, and the accused individual.
Responsible Employees (Mandatory Reporters)
Mandated Federal reporters include: all staff in Student Affairs, faculty, staff, campus public safety, coaches, athletic directors, athletic trainers, RAs, Human Resources staff, advisors to student organization and any other official with significant responsibility for students and campus activities.
Federal Statistical Reporting Obligations
Certain campus officials have a duty to report sexual assault, domestic violence, dating violence and stalking for federal statistical reporting purposes (Clery Act). All personally identifiable information is kept confidential, but statistical information must be passed along to campus law enforcement regarding the type of incident and its general location (on or off-campus, in the surrounding area, but no addresses are given) for publication in the annual Campus Security Report. This report helps to provide the community with a clear picture of the extent and nature of campus crime, to ensure greater community safety. Mandated federal reporters include: student/conduct affairs, campus law enforcement, local police, coaches, athletic directors, residence life staff, student activities staff, human resources staff, advisors to student organizations and any other official with significant responsibility for student and campus activities. The information to be shared includes the date, the location of the incident (using Clery location categories) and the Clery crime category. This reporting protects the identity of the victim and may be done anonymously.
Federal Timely Warning Reporting Obligations
Victims of sexual misconduct should also be aware that University administrators must issue immediate timely warnings for incidents reported to them that are confirmed to pose a substantial threat of bodily harm or danger to members of the campus community. The University will make every effort to ensure that a victim’s name and other identifying information is not disclosed, while still providing enough information for community members to make safety decisions in light of the danger. The reporters for timely warning purposes are exactly the same as detailed at the end of the above paragraph.
QUESTIONS AND ANSWERS
Here are some of the most commonly asked questions regarding University’s sexual misconduct policy and procedures.
Does information about a complaint remain private?
The privacy of all parties to a complaint of sexual misconduct must be respected, except insofar as it interferes with the University’s obligation to fully investigate allegations of sexual misconduct. Where privacy it not strictly kept, it will still be tightly controlled on a need-to-know basis. Dissemination of information and/or written materials to persons not involved in the complaint procedure is not permitted. Violations of the privacy of the complainant or the accused individual may lead to conduct action by the University.
In all complaints of sexual misconduct, all parties will be informed of the outcome. In some instances, the administration also may choose to make a brief public announcement of the nature of the violation and the action taken, without using the name or identifiable information of the alleged victim. Certain University administrators are informed of the outcome within the bounds of student privacy (e.g., the President of the university, Dean of Students, Director of Public Safety). If there is a report of an act of alleged sexual misconduct to a conduct officer of the University and there is evidence that a felony has occurred, local police may be notified. This does not mean charges will be automatically filed or that a victim must speak with the police, but the institution is legally required to notify law enforcement authorities. The institution also must statistically report the occurrence on campus of major violent crimes, including certain sex offenses, in an annual report of campus crime statistics. This statistical report does not include personally identifiable information.
Will my parents be told?
No, not unless you tell them. Whether you are the complainant or the accused individual, the University’s primary relationship is to the student and not to the parent. However, in the event of major medical, disciplinary, or academic jeopardy, students are strongly encouraged to inform their parents. University officials will directly inform parents when requested to do so by a student, in a life-threatening situation, or if an accused individual has signed the permission form at registration which allows such communication.
Will the accused individual know my identity?
Yes, if you file a formal complaint. Sexual misconduct is a serious offense and the accused individual has the right to know the identity of the complainant/alleged victim. If there is a hearing, the University does provide options for questioning without confrontation, including closed-circuit testimony, Skype, using a room divider or using separate hearing rooms.
Do I have to name the perpetrator?
Yes, if you want formal disciplinary action to be taken against the alleged perpetrator. No, if you choose to respond informally and do not file a formal complaint (but you should consult the complete confidentiality policy above to better understand the University’s legal obligations depending on what information you share with different University officials). Victims should be aware that not identifying the perpetrator may limit the institution’s ability to respond comprehensively.
What do I do if I am accused of sexual misconduct?
DO NOT contact the alleged victim. You may immediately want to contact someone who can act as your advisor; anyone may serve as your advisor. You may also contact the Dean of Students Office, which can explain the University’s procedures for addressing sexual misconduct complaints. You may also want to talk to a confidential counselor at the counseling center or seek other community assistance.
Will I (as a victim) have to pay for counseling/or medical care?
Not typically, if the institution provides these services already. If a victim is accessing community and non-institutional services, payment for these will be subject to state/local laws, insurance requirements, etc. [In this state, victims may be ineligible for state-based assistance if they were engaged in any illegal activity during the assault or if they fail to cooperate with criminal prosecution].
What about legal advice?
Victims of criminal sexual assault need not retain a private attorney to pursue prosecution because representation will be handled by the District Attorney’s office. You may want to retain an attorney if you are the accused individual or are considering filing a civil action. The accused individual may retain counsel at their own expense if they determine that they need legal advice about criminal prosecution and/or the campus conduct proceeding. Both the accused and the victim may also use an attorney as their advisor during the campus’ grievance processes. However, this attorney may not verbally participate in the student conduct/grievance procedure.
What about changing residence hall rooms?
If you want to move, you may request a room change. Room changes under these circumstances are considered emergencies. It is institutional policy that in emergency room changes, the student is moved to the first available suitable room. If you want the accused individual to move, and believe that you have been the victim of sexual misconduct, you must be willing to pursue a formal or informal university complaint. No contact orders can be imposed and room changes for the accused individual can usually be arranged quickly. Other accommodations available to you might include:
- Assistance from University support staff in completing the relocation;
- Arranging to dissolve a housing contract and pro-rating a refund;
- Assistance with or rescheduling an academic assignment (paper, exams, etc.);
- Taking an incomplete in a class;
- Assistance with transferring class sections;
- Temporary withdrawal;
- Assistance with alternative course completion options;
- Other accommodations for safety as necessary.
What should I do about preserving evidence of a sexual assault?
Police are in the best position to secure evidence of a crime. Physical evidence of a criminal sexual assault must be collected from the alleged victim’s person within 120 hours, though evidence can often be obtained from towels, sheets, clothes, etc. for much longer periods of time. If you believe you have been a victim of a criminal sexual assault, you should go to the Roxy Boulton Rape Treatment Center 305-585-7273; 1611 NW 12 Ave., Miami. Specially trained medical personal at the Center is on call 24 hours a day, 7 days a week. A victim advocate from the institution can also accompany you to Hospital and law enforcement or Security can provide transportation. If a victim goes to the hospital, local police will be called, but s/he is not obligated to talk to the police or to pursue prosecution. Having the evidence collected in this manner will help to keep all options available to a victim, but will not obligation him or her to any course of action. Collecting evidence can assist the authorities in pursuing criminal charges, should the victim decide later to exercise it.
For the Victim: the hospital staff will collect evidence, check for injuries, address pregnancy concerns and address the possibility of exposure to sexually transmitted infections. If you have changed clothing since the assault, bring the clothing you had on at the time of the assault with you to the hospital in a clean, sanitary container such as a clean paper grocery bag or wrapped in a clean sheet (plastic containers do not breathe, and may render evidence useless). If you have not changed clothes, bring a change of clothes with you to the hospital, if possible, as they will likely keep the clothes you are wearing as evidence. You can take a support person with you to the hospital, and they can accompany you through the exam, if you want. Do not disturb the crime scene—leave all sheets, towels, etc. that may bear evidence for the police to collect.
Will a victim be sanctioned when reporting a sexual misconduct policy violation if he/she has illegally used drugs or alcohol?
No. The severity of the infraction will determine the nature of the University’s response, but whenever possible the University will respond educationally rather than punitively to the illegal use of drugs and/or alcohol. The seriousness of sexual misconduct is a major concern and the University does not want any of the circumstances (e.g., drug or alcohol use) to inhibit the reporting of sexual misconduct.
Will the use of drugs or alcohol affect the outcome of a sexual misconduct conduct complaint?
The use of alcohol and/or drugs by either party will not diminish the accused individual’s responsibility. On the other hand, alcohol and/or drug use is likely to affect the complainant’s memory and, therefore, may affect the outcome of the complaint. A person bringing a complaint of sexual misconduct must either remember the alleged incident or have sufficient circumstantial evidence, physical evidence and/or witnesses to prove his/her complaint. If the complainant does not remember the circumstances of the alleged incident, it may not be possible to impose sanctions on the accused without further corroborating information. Use of alcohol and/or other drugs will never excuse a violation by an accused individual.
Will either party’s prior use of drugs and/or alcohol be a factor when reporting sexual misconduct?
Not unless there is a compelling reason to believe that prior use or abuse is relevant to the present complaint.
What should I do if I am uncertain about what happened?
If you believe that you have experienced sexual misconduct, but are unsure of whether it was a violation of the University’s sexual misconduct policy, you should contact the University’s Dean of Students office or victim advocate’s office. The institution provides non-legal advisors who can help you to define and clarify the event(s), and advise you of your options.
Acknowledgement: ATIXA Gender-Based and Sexual Misconduct Model Policy & Grievance Procedures, 2011.