My university, like many in the U.S., has interpreted White House guidelines regarding sexual assault and Title IX to require that all faculty be mandatory reporters. To be clear, this is not specified by the law, and is only one interpretation of the guidelines issued by the U.S. Department of Education’s Office on Civil Rights in its April 2011 “Dear Colleague” letter. The guidelines told colleges that “responsible employees” must report any gender discrimination, including sexual misconduct. They did not define who responsible employees were, although most campuses, including mine, interpreted this mandate by making blanket policies. While some applaud this interpretation as a way to ensure that sexual assault is taken seriously by campus officials and that victims are directed to appropriate resources, I believe that mandatory reporting requirements for faculty are dangerous for victims, deny them personal agency, and ultimately undermine their dignity.
One concern is that while campuses may have informed faculty about this interpretation of their reporting responsibilities—which generally involve reporting any incident of which they became aware to the designated Title IX official or some other campus authority—students may not realize that this is the case. As a result, faculty are put in the awkward position of having to interrupt a student who has begun to describe a traumatic experience in order to inform the student that the faculty member must report what the student communicates. “If a student comes to us and, because of the level of distress, begins pouring out their experience, it’s not the time—or it seems really insensitive to say—‘Stop, wait a minute, I’m a mandated reporter,’” said Catherine MacGillivray, associate professor and director of the women’s and gender studies program at the University of Northern Iowa.
One way that faculty have responded to the mandatory reporting requirement is to include language in their syllabi announcing it to students. Such statements can be useful in terms of informing students about the requirements and directing them to resources. But I contend that informing students does not go far enough, and that faculty should resist mandatory reporting for the betterment and safety of students.
Another concern is that mandatory reporting policies may stifle classroom conversations about these topics, which are essential in many disciplines. The American Association of University Professors (AAUP) has opposed mandatory reporting since 2013, expressing concern that is would have a chilling effect on faculty-student communication and that it limits the academic freedom of professors who teach subjects related to sex and gender.
In addition, Social Work and Counseling faculty have also been interpreted to be mandatory reporters on many campuses, including mine. Such requirements violate the ethical guidelines in these fields, which emphasize victim autonomy, confidentiality, and a survivor-centered approach.
I teach sociology and criminology, so the issues of sexual misconduct and sexual assault are often included in my courses. My students also know that, outside of my work on campus, I am involved with a nonprofit organization that assists victims of domestic violence, sexual assault, and human trafficking. As a result, they see me as someone who understands the issues, is connected to resources, and ultimately, as someone they can trust. I have often had students disclose abuse and assault—in class, in papers, and in the privacy of my office. My campus’s shift in how this must be handled has and will continue to reduce the likelihood that students will seek my assistance. Research has borne this out. In 2018, Newins and White found that students who were survivors of sexual assault were more than twice as likely as students who had no history of sexual assault to say that mandatory reporting decreased the likelihood that they would tell a university employee about their own sexual assault.
Mandatory reporting requirements are paternalistic and undermine the agency and dignity of sexual assault survivors. In nearly all cases on college and university campuses, the student disclosing sexual misconduct is an adult. As such, they have the right to make decisions about their own welfare, including who should know about traumatic life experiences. Mandatory reporting presumes that adults do not know what is best for themselves. I feel as though now I have to discourage students from confiding in me unless they want to report, and anyone educated on this issue knows there are myriad reasons students would choose not to take that course of action. For that reason, mandatory reporting runs counter to the purported goal of ensuring that victims get help, as now a trusted avenue of support has been removed. The presumption is that if students are ready to talk about an incident then they are ready to report it, but that is not consistent with research on sexual misconduct and assault. Student Affairs Administrators in Higher Education (NASPA) has issued a statement opposing mandatory reporting, in particular when it involves notifying law enforcement against the survivor’s wishes:
Student gender-based violence victims are as capable of reporting experiences with violence to law enforcement as any other adult… Mandatory referral thus singles out an entire sub-group of adult violence victims from other adults with the same abilities and treats them legally as children. The fact that those infantilized in this manner are mainly women and girls makes these bills particularly contrary to Title IX’s purposes.
Another concern is that these policies do very little to actually help students. Robert Milardo, a professor of family relations at the University of Maine, said he and colleagues view the mandated reporter policy as “basically one-sided, in that it serves the needs of the institution, the University of Maine, to report and investigate allegations of sexual assault and related issues, but it doesn’t deal effectively with student advocacy.” Anita Levy, AAUP’s associate secretary, explained, “What seems to be happening is that institutions are really going overboard to make sure they’ve dotted all their i’s and crossed all their t’s.”
There are also concerns about student privacy, as faculty on many campuses are unclear what details must be in their reports. At Maine, for example, faculty must report “all relevant details,” which includes the names of all students involved, including witnesses. Unless the victim wants an investigation, there is no need for campus officials to have their name. The Clery Act of 1990, which mandates that campuses report statistics on various crimes, does not require personal information. A 2013 amendment to the Clery Act, the Campus Sexual Violence Elimination (SaVE) Act, also requires universities to report statistics regarding sexual, domestic, and dating violence, not personal information about victims.
Further, experts on sexual assault have expressed concern that faculty will not be prepared to appropriately handle student disclosures, and thus may do more harm than good. This is because research has shown that many campuses fall short in terms of training faculty. At the request of then-Senator Claire McCaskill (D-MO), the U.S. Senate Subcommittee on Financial and Contracting Oversight conducted a national survey in 2014 to assess university sexual assault policies, procedures, and resources. The survey found that 21% of schools did not train faculty and staff members on how to respond to sexual assault disclosures. Furthermore, of the schools that did provide training, 54% said this training was voluntary. Many campuses, mine included, offer one-time presentations, often led by Human Resources employees, rather than extensive training facilitated by sexual assault experts. For instance, inadequately trained faculty may ask questions that insinuate doubt or blame. This is what Smith and Freyd call institutional betrayal.
Finally, this type of approach does nothing to change the institutional culture. As Miron and Palacios explain, “Mandatory reporting principally addresses the victim-perpetrator dyad, doing little to change the institutional context that allows sexual misconduct to flourish or address larger patterns in sexual violence across the student body.”
In sum, several reviews of literature (see, for instance, Holland, Cortina & Freyd, 2018 and Newins et al., 2018) have found that there is little support for the purported rationale for mandatory reporting by all faculty. There are several alternatives that universities can consider. Title IX does allow institutions to designate certain faculty who are responsible employees, rather than the blanket approach, including selecting only specific faculty as mandatory reporters. Holland, Cortina and Freyd offer four alternatives to mandatory reporting: 1) instruct faculty to ask students disclosing sexual assault their wishes in terms of reporting and then follow those—the University of Oregon does this; 2) create a restricted reporting option, as has been done in the military, whereby students can make a report and receive services but no official investigation is launched; 3) use a third-party reporting technology like Callisto, which allows survivors to report, create an electronic record, and submit it to officials if they choose, and which compiles aggregate statistics for universities; 4) reform compelled disclosure policies to at least create some type of blended approach.
References
Brown, S. “Many professors have to report sexual misconduct. How should they tell their students that?” The Chronicle of Higher Education, August 16, 2018.
Campbell, R. “The psychological impact of rape victims.” American Psychologist, (2008), 63, 702–717.
Flaherty, C. “Endangering a trust.” Inside Higher Education, February 4, 2015.
Holland K., Cortina L, & Freyd J. “Compelled disclosure of college sexual assault.” American Psychology, (2018) 73, 256–268.
Miron, R., & Palacios, L. “Mandatory reporting policies protect universities, not survivors.” Gender Policy Report, July 10, 2018.
Newins, A., Bernstein, E., Peterson, R., Waldron, J., & White, S. “Title IX mandated reporting: The views of university employees and students.” Behavioral Science, 8(11), (2018), 106-25.
Newins A., & White S. “Title IX sexual violence reporting requirements: Knowledge and opinions of responsible employees and students.” Journal of Aggression, Conflict, & Peace, (2018), 10, 74–82.
Orchowski, L., Untied, A, & Gidycz, C. “Social reactions to disclosure of sexual victimization and adjustment among survivors of sexual assault.” Journal of Interpersonal Violence, 28, (2013), 2005–2023.
Smith, C. & Freyd, J. “Institutional betrayal.” American Psychologist, (2014), 69, 575-587.