Limits to Confidentiality When Reporting Sexual Harassment

View the Power Topic Limits to Confidentiality When Reporting Sexual Harassment

What’s Ahead

Understanding the methods for reporting sexual harassment confidentially is crucial. This SASH Club Power Topic will help you understand your options for controlling who knows about your incident, report, or complaint of sexual harassment or assault, and when they have access to your specific information.

• Your legal status at school
• When you need advice but need privacy too
• When you share your information with a school counselor
• When you share your information with a teacher or staffer
• About the police

A few definitions

• Disclosure (noun): the act of making new or secret information known
• Legal adult (noun): a person who has reached the age of majority – age 18 in the USA – able to consent and enter into contracts on their own behalf
• Minor (noun): a person under the age of full legal responsibility
• Mandated reporter (noun): someone who comes into contact with children as a part of their employment or profession and is required by law to report suspected child abuse and possibly child-on-child sexual misconduct to a state agency or to law enforcement.
• Policy (noun): a course or principle of action used by an individual or an organization

Your legal status determines how your report is shared at school

• If you are under age 18:
  • School will follow state law & district policies about disclosures
  • State mandatory reporting requirements could apply — most school staff and teachers are mandated reporters
• If you are 18 or older:
  • Laws and policies about disclosure don’t apply, therefore you have more control over when and how people share information
• School Policies:
  • Include Title IX obligations (for schools receiving federal funds) to investigate incidents of sexual harassment and other forms of sex discrimination
  • State childhood sexual assault laws apply to all schools: public, private and parochial

Option #1: You need advice but must also have privacy

• Use a “hypothetical” case — tell a trusted adult that you want to help “a friend” who is being harassed:
  • Describe the problem as if it were your friend’s
  • Do not give identifying information about the harasser
• This approach allows adults to talk with you about options for help without triggering an investigation or any required disclosures because you have not provided specific personal information

Option #2: You share your situation with a counselor

• Speak with an intervention counselor, staff from the school health center, or an academic counselor — they can:
  • Answer your questions about the reporting process
  • Help you to prepare for each conversation that you or they consider necessary
  • Role play with you until you feel ready to confront the harasser effectively
  • Involve your parents/ guardians, or report to the school
• If the counselor thinks they can help you can take care of the problem, they may keep your information confidential
• Examples where a counselor must involve a parent/guardian, administrator or other adult:
  • Even with the counselor’s help you can’t get the harasser to quit
  • When the harasser is harming other students, too, or is likely to do so
  • When there’s a big power or age difference involved (e.g. senior/freshman or teacher/student)
  • They believe you are so upset you might harm yourself or someone else
  • If you tell them that you are or have ever been physically, sexually, or emotionally abused (typically by an adult)
  • If the harassment involves criminal battery or assault
  • If the harassment involves sending or possession of sexually explicit images of people under 18 years of age

Option #3: You share your situation with a trusted teacher or other school staff

• Must always be informed:
  • An administrator (dean of students, principal, etc.)
  • The school district’s Title IX coordinator
• Almost always will be informed:
  • A parent or guardian
  • The person who harassed you
• Sometimes will be informed:
  • The police, when the harassment is a crime
  • Your teachers and school safety officers so they can protect you from further interactions with the harasser
• Should never be informed:
  • Other members of the school community

Option #4: You share your situation with a community advocate

1. Call a local nonprofit sexual assault response organization using RAINN’s interactive form. Many certified advocates are not mandated reporters. When you call the organization do not give your last name. Ask:
   • “Are your advocates mandatory reporters?”
   • “Do you serve minors without parental permission?” If they are not mandated reporters, your conversations are confidential.
2. Advocates can help victims talk to their parents or other adults. Often advocates will first talk to parents or other adult allies to make sure they know how to respond appropriately to their child.
3. You can speak in hypotheticals, saying, “This happened to a friend of mine.”
4. If you are unable to continue your education free from sexual harassment/ abuse and hostility because your school is unhelpful, advocates can help create a safety plan for school or help you transfer to another school if desired.
5. A sexual assault or other youth organization can connect you with a counsellor. If privacy is an issue, confirm that the counsellor is NOT a mandatory reporter.

About the police Part 1

• When your report involves a crime, like criminal battery, assault, or explicit sexual images, whoever you tell is obligated to inform the police
•  The police report is confidential. Without a court order it is not revealed to anyone aside from yourself or your parent/guardian (if you are under age 18).

About the police Part 2

• If your school has a School Resource Officer (SRO) and you want to know more about the potential consequences of reporting your situation you can ask the SRO if you can speak hypothetically:
  • You can say: “How would you approach a case in which…?” and fill in the details without giving any identifying information
• Remember that the SRO’s answer may change if the facts change over the course of an investigation

About the police Part 3

• Law enforcement will take a more active role in certain situations:
  • When a victim or their parent/guardian wants the matter prosecuted as a crime
  • If there are multiple victims and any one of the victims or their parents/guardians want the matter prosecuted
  • If the police have prior reports of similar behavior by the same perpetrator (they will not be able to tell you for confidentiality reasons)
  • If there are other aggravating circumstances, such as the harasser being 18 years of age or older, or if there is a big age difference between the harasser and the victim

Talk About It

• Why is controlling your information important?
• Why should there be opportunities for reporting sexual harassment confidentially
• Does using a hypothetical (asking “for a friend”) feel like something you would do? Why or not?
• Does educating peers about confidentiality options in reporting feel like something that would be impactful here at school? Why or not?
• Do you have additional ideas to help students understand information sharing when they report an incident of sexual harassment or assault?

Do More

• Role play a situation to build skill in communicating with others about how to use a hypothetical (ask “for a friend”) to get advice from a mandatory reporter and/or community advocate
• Develop a one-page chart to show options for getting help without reporting sexual harassment confidentially. Show how the school shares reported information with others . Can the school include this in the student handbook or planner?
• Identify the school Safety Officers and talk with them about how they support students who report sexual harassment and assault
• Everyone in the room shares one thing they learned today and one thing they will commit to doing to move forward

Learn More

• Review your school’s policies & administrative regulations (procedures) for:
  • Reporting sexual harassment confidentially
  • Investigating a report or complaint
  • Creating a safety plan for students who experience harassment or assault
• Talk with your Principal, Dean of Students, or counselor about their practices at the school to support students while an investigation is underway

Sources & Acknowledgments

Shout out to Margit Roos-Collins, JD, a Berkeley Unified School District parent, for her research on the legal limits of confidentiality options for students reporting sexual harassment or assault at school.