Confidentiality Concerns

Advocates say that confidentiality in investigating sexual assault and harassment cases is crucial to promoting an environment in which victims feel comfortable coming forward. So colleges’ individual sexual assault harassment policies usually err on the side of more privacy, not less.

But is there such a thing as too much confidentiality? Two recent cases of sexual harassment, both involving a student accuser and a professor defendant, suggest that balancing all parties’ right to privacy with their right to address it publicly – especially when some details become public anyway – remains a delicate act.  

The first such case is that of Eric Tranby, an assistant professor of sociology at the University of Delaware who is taking a leave of absence this year at his own request. He said he asked for time away from campus to find new employment following allegations of sexual harassment brought by a student. The student said that at the end of last academic year, Tranby invited her to his office and offered her an “A” in the class in exchange for sexual favors, and later sent her emails and texts asking her not to tell anyone about the incident.

In an email to Inside Higher Ed, Tranby denied those claims and said that a university investigation found no evidence of quid pro quo harassment. He said no sanctions were taken against him and that he remains on the faculty, but that the allegations and “ensuing rumors” upset him enough that he wants to leave.

Tranby’s case was supposed to remain confidential, according to Delaware’s sexual assault policy. But Delaware’s student newspaper and other local media outlets caught wind of the story and published a series of lengthy pieces, including interviews with the student accuser. In media interviews, the student accuser is not identified by name but says she’s been frustrated with the transparency of the university’s investigation.

The student’s comments have sparked campus protests, including a rally this month featuring speakers who are survivors of sexual assault.

Tranby maintains that he is innocent. But he declined to provide a copy of the findings of Delaware’s investigation, saying that it would be against university policy for him to do so since the report identifies the student accuser.

“I intend to abide by my ethical obligations under that policy, regardless of others’ actions,” he said.

The student did not respond to an interview request through a faculty adviser. The university confirmed that Tranby is on administrative leave and will be resigning at the end of the year.

In another case, at the University of Colorado at Boulder, an associate professor of philosophy is taking leave this semester to prepare for the university’s termination proceedings against him. David Barnett is accused of retaliating against a female graduate student who accused a male graduate student in the department of sexual assault. Before Barnett became involved in the case last year, Colorado’s office of discrimination and harassment determined that the male student had violated the university’s sexual assault policy. It first suspended him and then did not renew his teaching position.

Barnett said he had serious concerns about the accuracy and process of the university’s investigation. He said it was plagued by procedural errors and bias against the male student -- mainly the alleged suppression of witness testimony that would have helped his case. So he compiled a 38-page report that is said to contain a critique of the university’s investigation and the findings of Barnett’s own sort of inquiry into the assault allegations, and sent it to the university.

But the female accuser said Barnett’s report and line of questioning with witnesses about what happened on the night of the alleged incident defamed her; she said Barnett questioned her character and sexual history. She hired a lawyer and recently settled out of court with the university for some $825,000. Accused of retaliating against the female student for reporting sexual assault, Barnett is awaiting the university’s termination proceedings against him. He denies that the report defamed the student accuser.

Lawyers for Barnett and for the female student have declined to provide a copy of the second report to Inside Higher Ed, citing the university’s confidentiality policy regarding sexual harassment and assault. Barnett said he’s wanted to release his report to publicly address some of the allegations made against him, but can’t. He said Colorado has “taken the position” that the contents of the report are confidential under the Family Educational Rights and Privacy Act protecting student records.

But the professor provided a copy -- with names redacted -- of the cover letter that he sent to Colorado’s president and chancellor last August, when he submitted his report. He accused the office of discrimination of “willful misconduct,” in the form of “deliberately suppressing evidence not favorable” to the office’s conclusion. He said he believed the practice went beyond the case and requested that the Colorado system conduct another, independent investigation of the assault case.

The letter does not prove that Barnett did not engage in misconduct through his report. Likewise, Tranby’s claims that a university investigation found there was no quid pro quo harassment don’t prove his innocence. But sexual harassment policies prevent both professors from releasing documents about their cases if they wanted to do so, even though details of their case have become public. Meanwhile, the absence of public debate leads advocates for tougher enforcement of sexual harassment penalties to say they can't evaluate whether institutions are handling allegations appropriately.

Such frustrations helped fuel the Delaware student rally, where students chanted, "End the silence, end the shame," and a related social media campaign called #UDobetter. More than 100 Delaware faculty members also participated in the dialogue, publishing an opinion piece in the student newspaper expressing surprise that with "so much university and national attention focused on the persistent, and institutional, problems of sexual harassment and assault on campuses, [Delaware], according to the article in [the student newspaper,] The Review, did not involve the alleged victim in the investigation (indeed, it is unclear whether the university conducted a formal investigation), inform her of the resolution of the case, or take appropriate measures to safeguard potential future victims."

Universities such as Delaware are bound, too, by their confidentiality policies, even when they’re under pressure from students to release information about sexual assault and harassment cases. When Delaware’s student newspaper published an article criticizing the university for its alleged lack of transparency with Tranby’s student accuser, Provost Domenico Grasso wrote an open letter to students, faculty and staff, saying the story contained errors and “misrepresentation of fact.” But he said he could not address the case specifically because of “privacy interests.”

“In order to protect the privacy of both the complainant and the respondent, our policies provide that confidentiality must be maintained to the fullest extent possible throughout the process,” Grasso said. “The university takes this confidentiality requirement seriously because victims would not come forward without it.”

A university spokeswoman declined to answer any questions about the case, other than to say that the matter was handled “promptly and properly, with sensitivity to the complainant and clear communication with all parties involved.”

According to official guidance on Title IX of the Education Amendments of 1972 and sexual violence from the Education Department’s Office for Civil Rights, students can request that their names not be disclosed to alleged perpetrators, or that no disciplinary action be pursued to address the alleged misconduct. And even if a student does not specifically ask for confidentiality, the OCR says that an institution should only disclose information about sexual assault and harassment cases to those responsible for investigating them. The office also says that, to improve trust in the reporting process, complainants should be notified throughout the investigation what information is being disclosed about their cases and to whom. Beyond Title IX, student records receive additional privacy protections under FERPA. And cases involving professors or other employees are subject to additional privacy restrictions under state employment records laws.

Individual institutions’ sexual harassment and assault policies typically mirror those guidelines and concern for promoting trust among complainants. Parties, both accuser and accused, often also are asked to sign confidentiality agreements saying that they want talk about cases publicly, even after they’re resolved.

Such policies can leave victims frustrated, too, and at times they take matters into their own hands. At Columbia University, for example, students last semester scrawled the names of alleged student rapists onto bathroom walls to warn other students. One student whose alleged attacker’s name appeared on the walls told Inside Higher Ed at the time that a university panel had dismissed her claim after a hearing and she was urged to keep quiet.

“I watched one of these people hit on another woman and I wasn’t able to say anything because of the confidentiality restrictions the school put on me,” she said. “But now I can feel a little bit safer knowing that there will be a little more awareness. Otherwise what are we supposed to do? I feel like the school has backed us into a corner. Whoever did this is willing to take risks.”

In another example, the friend of a Yale University alumnus last year started an internet campaign to raise money to sue the institution. She said her friend was harassed and assaulted by a professor there, but that Yale dismissed the claims and asked her to sign a confidentiality agreement. Yale officials said they take seriously and investigate all sexual harassment and assault claims. But they couldn’t comment specifically on the case in question, citing their confidentiality policy.

Daniel Swinton, senior executive vice president at the NCHERM Group, a law and consulting firm that advises schools and colleges on safety issues, said that Title IX requires colleges to have in place policies that promote accountability in sexual harassment and assault cases and protect the safety of victims. And colleges usually view maintaining privacy in investigations as a way of keeping victims safe emotionally as well as physically, he said.

Regardless of what institutions find in their investigations, Swinton added, because of legal concerns and concern for the parties involved, they “aren’t in the habit of broadcasting outcomes.” That leaves open the possibility for a “skewed narrative to get out to the public, particularly on social media. The story that gets out there first is the one that gets the most traction.”

Still, Swinton said, colleges and universities rarely if ever intervene to correct the public record – even if they were to obtain the consent of both parties.

Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis and Clark Law School, said via email that allowing victims of sexual assault to “maintain privacy and some semblance of control over the narrative of their victimization is absolutely critical to their healing and their ability to move toward becoming survivors.”  Beyond that, she said, survivors won’t come forward in the first place without assurances of privacy and confidentiality.

Garvin said it was “absolute insanity” to put victims to a “Hobson's choice” between their privacy and seeking justice. “We just can’t operate our school administrative proceedings or our courts that way,” she said.