Mandatory Reporting Is Exactly Not What Victims Need

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Proposed Title IX regulations intended to help students will only make things worse.

Last month, the Department of Education released new proposed Title IX regulations. The sweeping rules would force colleges to require their employees to report suspected sex discrimination experienced by students, even if the victims do not consent. Unfortunately, research has clearly shown that mandatory-reporting policies do not reduce sex discrimination. In fact, such policies make things worse.

Mandatory reporting is wrong in principle, as it is a violation of adult autonomy. To illustrate this, imagine Jody Smith, a college student with a close and trusting relationship with her honors thesis adviser, Professor Diamond. During her senior year in college, Smith is sexually assaulted by another student and has found it difficult to work on her thesis. Professor Diamond asks Smith why her work has stopped. Smith wants to tell her professor about what happened but fears doing so because the professor would have to report the assault to the college. Smith doesn’t want strangers hearing what happened to her and knows that if the report is made, the college could choose to investigate even if she asks them not to. She wants to talk to her trusted professor, and yet she cannot do so while maintaining control over her privacy and her life. The policy has taken away her autonomy, her right to consent.

Rights aren’t protected by trampling on rights. College students are adults, with the right to self-determination. Yet the Department of Education appears to consider adult college students to be children, asserting that sex discrimination experienced by students must always be reported because they “may be less capable of self-advocacy.” The reporting policy would not only include employees who are clearly positioned and obligated to initiate a formal response as part of their institutional role, but also employees with teaching or advising roles and student employees.

The Department of Education appears to consider adult college students to be children.

Employees will not only be required to report sex discrimination they witnessed or were directly told about, but also information learned indirectly, for instance from someone other than the victim, or even from flyers, posts on social media, or classroom discussions. The proposed regulations make no exceptions for employees who learn of possible sex discrimination while attending activist events like Take Back the Night.

Mandatory reporting is not consistent with the research on what causes harm versus healing. A fundamental principle of trauma-informed responses to sexual assault and harassment is empowerment, voice, and choice, and regaining a sense of control is essential to recovery. The evidence is clear: When people take control away from victims (for example, by forcing them to report when they are not ready), there is an increase in post-traumatic stress, depression, and anxiety. Research shows that victims (as well as victim advocates) are less supportive of broad mandatory-reporting policies than they are of policies that grant autonomy and control over the decision to report.

The proposed regulations are rooted in the unfounded assumption that mandatory reporting is necessary and effective for tackling sex discrimination. This assumes that requiring reporting will surface more discrimination, enable institutions to identify perpetrators (especially repeat perpetrators), and ensure that institutions respond promptly and effectively (e.g., by initiating grievance procedures and offering supportive measures). But there is little evidence to support these assumptions. On the contrary, there is evidence that such policies can chill reporting and create barriers to seeking help. Broad mandatory-reporting policies can discourage victims from speaking about their experiences to those they trust, including teachers and advisers.

Colleges will not protect the civil rights of students by violating their rights to autonomy.

There are better ways. For instance, the University of Oregon’s “mandatory supporter” model requires university employees to listen to and respect victims’ intentions when they disclose, which may include not reporting to the university. The university provides and requires training so that employees can respond to disclosures in a trauma-informed and inclusive manner. Employees are required to provide information to survivors — including reporting options and confidential resources — so survivors can make informed choices about how to proceed. Only employees with the authority to institute corrective measures or with administrative leadership are required to notify the Title IX coordinator.

We know this from extensive research about sexual harassment and assault. A mandatory-supporting approach is consistent with the research evidence, models respect for consent, and is more likely to tackle sex discrimination and ensure equal access to education. The good news is that it’s not too late to move the regulations in this direction; the proposed changes are subject to modification. The proposed regulations were published in the Federal Register July 12, and the clock has started on a 60-day notice and comment period ending September 12. Anyone with concerns can submit comments, which the Department of Education considers.

The Chronicle

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