In response to a 2004 complaint filed by the non-profit organization Security on Campus, the Department of Education has ruled that aspects of the University’s sexual assault policies at the time requiring confidentiality violated federal law.
Security on Campus filed the complaint on behalf of Annie Hylton, a former University student who was sexually assaulted and chose to bring her case to the Sexual Assault Board, an autonomous subcommittee of the University Judiciary Committee. Hylton was forced to agree not to disclose information about the hearing in order to receive its results, explained Daniel Carter, Security on Campus public policy director. The organization believed this constituted a violation of the Clery Act, a federal law that requires that both accused and accuser be informed of the outcome of any institutional discipline hearing, and therefore filed the complaint with the Department of Education, Carter said. Susan Russell also joined in filing the complaint on behalf of her daughter, former University student Kathryn Russell.
The Department of Education’s ruling, handed down in a letter to University President John T. Casteen, III found that Hylton and Russell’s actions in speaking about their cases were not in violation of the Family Education Rights and Privacy Act, as the University argued. The ruling also found the Sexual Assault Board’s confidentiality policy at the time to be in violation of the Clery Act.
The ruling states that the Department of Education is aware that the University has worked to improve and evaluate the effectiveness of the policies of the Sexual Assault Board as well as to bring them into compliance with the Clery Act.
“Nevertheless ... the University is required to conduct a comprehensive review of its Clery Act policies and procedures to identify and address violations or weaknesses in its Clery Act program,” the ruling states.
The University is required to submit a copy of current Student Assault Board policies and procedures, a summary of changes between the current policy and the one in place at the time of the complainant’s hearing and a copy of the most recent Campus Security Report. The Department of Education currently is not imposing any fines or sanctions on the University.
Asst. Dean of Students Nicole Eramo, Sexual Assault Board chair stated in an e-mail that the letter is still under review and that the University currently has no comment.
University spokesperson Carol Wood said the University’s policies regarding sexual assault have changed significantly since this complaint was filed.
“We have implemented numerous changes and revisions to the policy,” Wood said, “in order to be more aggressive, flexible ... and nimble in responding to sexual assault cases.”
Wood also said University President John T. Casteen, III has spoken a number of times about the University’s zero-tolerance policy for sexual assault.
“[President] Casteen has come out very vigorously in the past about how we do not tolerate sexual assault at the University,” Wood said.
The letter is currently under review by the general counsel’s office, she added, and the University plans to formulate a response once the letter has been thoroughly examined.
Carter spoke about the significance of the ruling, explaining that “this decision empowers victims with the freedom to talk about what disciplinary action, if any, was taken against their alleged assailant.” The Department of Education’s ruling will have a nationwide impact, Carter said, noting that the confidentiality policy criticized by the Department of Education is common on campuses across the country.
“It’s an important point that the University cannot silence victims, and it’s not just them relaxing the policy,” Carter added. “[These are] clear guidelines that the United States Department of Education appl[ies].”
The Department of Education’s ruling echoed its 2004 decision regarding a case in which a Georgetown student was forced to sign a confidentiality agreement. The recent decision concerning the University “makes it clear that [the Clery Act] doesn’t just apply in cases where there’s a written agreement,” Carter said. “It applies in cases where there’s a verbal agreement or [where] there’s just the threat of a sanction for talking.”
Victims’ right to talk about their experiences is important for two main reasons, Carter said. First, it “can be an important part of the hearing process ... [and] they should have that freedom,” he said. Secondly, it allows victims to seek a redress of grievances if necessary. Carter explained that before, “if they believed there were problems with how the process worked, they were unable to raise those concerns in a public forum.”
Fourth-year College student Matt Arango, a member of sexual assault awareness group One in Four, said confidentiality is important for victims in the sense that the people victims choose to share their experiences with keep the information confidential. Speaking about their experiences is a crucial part of the healing process for victims, Arango said.
“There can’t be any real sort of healing if the survivor isn’t able to talk about it — whether that’s just because they feel they’re not going to be believed or because there is some sort of legislation put in place that sort of prevents them from talking about it,” he said. “Being able to talk about the experience is important and can be very helpful in the right circumstance.”
Russell, who is also the founder of the Web site uvavictimsofrape.com, said she hopes the decision is empowering.
“I would hope victims would see that it is OK to speak up, and even when the administration tells you they’re right, that doesn’t mean they’re right,” she said. “It’s OK to question the policies of the school.”
Russell said she this ruling as part of a larger battle. The complaint she filed also charged the University with violation of Title IX, which includes the standards of truth used for student tribunals in sexual assault cases. Title IX requires a “preponderance of evidence,” while the SAB required the evidence to be “clear and convincing,” which is a higher standard than held in civil court and constitutes a violation of Title IX, Russell said.
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