Post-Nassar Campus Efforts Should Proceed with Caution

January bore witness to yet another round of sexual harassment and sexual assault allegations against celebrities ranging from Aziz Ansari to James Franco, inspired by the #MeToo movement. Campuses have also been grappling with the #MeToo movement and how to handle lists of alleged perpetrators made public by student survivors and activists. But perhaps the most talked-about series of events to grip higher education within the last two weeks has been the fallout from the conviction and sentencing of Larry Nassar, the former Michigan State University and USA Gymnastics doctor who sexually assaulted hundreds of his former patients. The case brought about the resignation of Michigan State University President Lou Anna Simon, and calls for the ouster of the board of regents. The university is now being investigated by the NCAA and the Michigan Attorney General.

The fallout from this tragic case isn’t localized to Michigan State, however. The question “could this have happened here” is echoing at campuses throughout the country. The conviction and the nonstop media attention to this case has many institutions of higher education rethinking their sexual assault policies and procedures. Presidents are directing their Vice Presidents, Title IX Coordinators, and other sexual assault experts on campus to identify weak areas of training or response that could leave their institutions vulnerable. For other campuses, the directive is coming from outside of campus. Ohio Governor John Kasich has asked for a review of campus sexual assault enforcement and Congress is weighing in with legislation as well.

There are many solutions that might be offered to assuage the fears of campus presidents and legal counsel regarding an institution’s response protocols and policies. These include better training for employees who learn about incidents of sexual assault, stronger mandatory reporting policies and more comprehensive education for students, faculty and staff who are impacted by sexual violence, among others. The problem, however, is that stronger mandatory reporting policies might actually have a contravening effect on sexual violence efforts on campus.

A new study by Holland, Cortina and Freyd (2018), argues that mandatory reporting policies, or compelled disclosure policies as they term them, are not evidence-based. Despite this lack of evidence, in a random sample of 150 campuses, 97% of institutions had a policy “mandating that some employees report any possible sexual assault disclosed to them by a student” while 69% had policies that identified all employees as mandatory reporters of sexual assault (Holland, et al., 8). The authors of the study make a compelling argument for why compelled disclosure policies aren’t the panacea that campus administrators might hope.

Specifically, the authors reference data indicating that other, similar policies requiring campuses to notify law enforcement about sexual assault reports would result in fewer disclosures of sexual violence by survivors. While 88% of survivors indicated that mandatory law enforcement reporting would lead to fewer disclosures, another 21% indicated that they would be “extremely likely” to report if there was a policy “requiring employees to respect students’ decisions about reporting,” (Holland et al., 11). The authors also warn that there is no evidence to support the notion that compelled disclosures to campus authorities result in more – or more successful – investigation and adjudication of sexual assaults.

Compelled disclosure policies are opposed by national medical associations and victims’ rights groups alike because they take the choice about reporting away from an adult whose very recovery depends on being able to regain control over their own lives. Compelled disclosure policies can also sometimes serve to send survivors underground, resulting in their choice to “forego treatment and support, rather than sacrifice their privacy and control under compelled disclosure,” (Ibid, 14).

This isn’t to say that what happened in the Nassar case isn’t an example of what happens when independent adults do come forward and want to make an official report to either the campus or to law enforcement. Clearly, the victims in this case did want to report and they simply weren’t believed. Better training for employees who may receive a report of sexual violence is a laudable goal, but the study’s authors also argue that many campuses are falling short of that goal.

Before anyone throws their hands up and says that there is nothing to be done to prevent the next Larry Nassar on our campuses, there is hope. The compelled disclosure study authors outline several survivor-centered reforms, including policies that respect survivors’ wishes, creating restricted reporting options for survivors while they decide what they ultimately wish to do, and providing confidential advocates on campus with whom survivors can discuss their options while accessing accommodations. There is also hope that some state legislatures are hoping to require campuses to do just that. The Illinois Preventing Sexual Violence in Higher Education Act already requires campuses to have confidential advisors for survivors, and Nebraska is currently considering legislation that would require campuses to designate confidential advisors for survivors who disclose sexual violence.

So while the Nassar case may leave many campuses racing toward more stringent compelled disclosure policies on campus, it is worth taking a look at the compelled disclosure study first. The study is quite useful in helping administrators think through what goals a campus hopes to accomplish with compelled disclosure policies and whether more stringent policies is the route that will actually get them to that goal.

Student affairs practitioners in many ways already know the potential negative impact of compelled disclosure policies. The work of supporting survivors, investigating cases, and adjudicating policy violations rests primarily within the purview of student affairs. It is equally important that the voices and expertise of student affairs professionals and sexual assault survivors are heard during the difficult conversations on campus in follow up to this devastating case. Policies about compelled disclosure should be developed with a clear understanding of the impact on those whom they are designed to protect, and not only with institutional liability in mind. If we really want more survivors to come forward, perhaps considering more survivor-centered, evidence-based and effective reforms is the better way.