Rape Victims’ Privacy Threatened by New York Ruling; Universities Can Avoid Disclosure by Simple Change in Policy
WASHINGTON, D.C. (April 1, 2020) - Despite the privacy protections of New York State's Mental Hygiene Law [Section 33.13], Syracuse University has been ordered to turn over some confidential records - of a therapy session of a student claiming to have been raped - as part of a Title IX law suit against the university.
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Rape Victims Could Be Detered From Seeking Counseling
This ruling could deter rape victims from seeking much needed counseling, and possibly even from reporting rapes to university personnel, but there's a simple way for colleges and universities to avoid a similar ruling in the future, says public interest law professor John Banzhaf, who has won more than one hundred legal actions fighting sex discrimination against women.
Here it appears that the university made a crucial mistake, says Banzhaf. It combined in one person the therapeutic role of counseling, with the separate and distinct rule of advising student rape complainants.
More specifically, it is alleged here that the female complainant was induced to file a Title IX complaint of rape, after two apparently consensual encounters with the same male student, after first withdrawing a rape complaint with the police, and then being advised by the therapist.
As a result the New York magistrate ruled that the "interests of justice substantially outweigh the need for confidentiality," even though New York law, like that of many other states, generally protects such records,
It provides that "information about patients or clients reported ... at office facilities shall not be a public record and shall not be released by the offices or its facilities to any person or agency outside of the offices."
Shocked Title IX Professionals
Title IX professionals are shocked. One said that it "is definitely a cause for alarm," while another predicted that "when someone in the psychotherapist community gets wind of this, they'll go off."
Several predicted that it will deter students who have been raped from seeking the counseling and therapy which they are likely to need.
For example, one opined that "we already know that most survivors never report their experiences to authorities because of a desire to keep that information private. If seeking mental health support carried the same risk of exposure, survivors would almost certainly react the same way and choose not to seek those services."
Syracuse argued that, without a guarantee that such records will remain confidential, the frequency of students needing rape counseling would decline, and such "students would be left to suffer in silence."
Rape Victims And Disclosure
But, suggests Banzhaf, it appears that there is a simple way of avoiding this disclosure, and whatever problems it might cause. Universities should examine their own existing procedures and make any changes necessary to avoid this apparent conflict of interest.
Therapists should provide whatever therapy is necessary, but a separate person - and perhaps even a separate person in a different university department - should explain to complainants what their options are, and the advantages, risks, and problems of each.
In this way, universities can help insure that students are not pressured into filing rape complaints which aren't warranted - the male student's attorney claimed the therapist "recruited" the female student to file the complaint which led to his expulsion - while at the same time helping to insure that students who need counseling are not deterred by concerns of confidentiality, suggests Banzhaf.