Reporting Requirements Walk Line Between Safety and Trust

Editor’s note: This article was initially published in The Daily Gazette, Swarthmore’s online, daily newspaper founded in Fall 1996. As of Fall 2018, the DG has merged with The Phoenix. See the about page to read more about the DG.

Only a couple weeks after Swarthmore released its new Interim Sexual Assault and Harassment Policy, students are facing a shift in the nature and availability of confidential resources. Under the new policy, students are being asked to put renewed trust into school-run systems in order to promote the safety of complainants, respondents, and everyone else in between, due to many of their peers becoming mandatory reporters.

Discussions surrounding the need for clarification of the interim policy flared up once more when the college revoked Mia Ferguson’s ’15 Residential Advisor (RA) status, citing her unwillingness to provide a sexual assault victim’s name as a hindrance to the college’s investigation of this still ongoing case.

“We have an institutional, and I would say a moral and ethical responsibility that when we receive information, we have to do everything we can to follow up on that,” Dean of Students Liz Braun said.

For Ferguson, her decision to withhold the victim’s name – information that she originally learned about while compiling testimony for the Clery Act complaint she filed last April – ultimately boiled down to what she viewed as her moral responsibilities to the students who had confided in her last semester.

“I will go to jail before disclosing names of victims,” she said.

In removing Mia from the RA program, the college was abiding by the required and retroactive reporting clauses outlined by a campus-wide email that Interim Title IX Coordinator Patricia Flaherty Fischette sent out on Monday afternoon.

According to the new policy, six student groups have been approved as required reporters, which mandates that students belonging to one of these groups must refer any and all information they have received about a sexual assault or harassment case, whether they became aware of the details of the case before or after becoming employed by the college.

This essentially eliminates an argument raised in the New York Times article written about Ferguson, which points out the uncertainty in whether Ferguson could technically be considered a student employee during the time she became aware of details about the case in question, which was after being accepted as an RA, but not yet having signed her RA contract.

“Two days ago, we were under the impression that every student worker from the ball boy at the soccer game to someone who works at McCabe to an RA are all required reporters,” Richard Scott ’14, who is a returning RA, said.

One other condition must be met in order for a student to be obligated to report a sexual assault case – not only must he or she belong to one of the six required reporting groups, but the case must be grounds for an “ongoing or current potential hostile environment or active safety threat.”

Until the college publishes clearly defined parameters for what constitutes “ongoing,” “current,” or “potentially hostile” cases, it is up to students under their required reporting obligations to make the call.

“It really is a matter of asking people to use their judgment. The language is about a kind of clear and present danger. It’s not about something that happened several years ago, or to someone who graduated,” said President Rebecca Chopp.

While this system relies upon a high level of trust within the college of its students, it inevitably introduces gray areas. A term such as “potentially hostile” is open-ended. Without a clear definition provided by the administration, it can be interpreted differently by different students, depending on their previous experiences dealing with such cases.

In Ferguson’s specific situation, she says she was not aware that the alleged perpetrator would be returning to campus until the clear and present danger qualification was raised during her questioning. In this instance, the status of the case would shift rapidly from seemingly posing no immediate threat to campus safety to becoming a highly relevant and potentially hostile threat, all within the span of time it took for administration to question Ferguson the first time.

The college recognizes that transparency between what the administration expects and what students do or don’t understand has been an ongoing issue.

“I think a lot of these changes have been directly influenced by student feedback, asking for more clarity, more ease of access in terms of finding everything from what are the policies to what are the sources,” Braun said.

Scott, the RA, said, “We can always work with the dean’s office on issues regarding transparency…I know that’s something they’re working on. I know that I personally had a lot of nervousness around this idea that the policy could change on any given day.”

Ferguson said she would be interested to see a slightly different policy. She suggests that anyone designated as a required reporter be trained on how to take a basic intake of a victim that includes all the required details of the case, as well as the date and time of the intake. This intake would not necessarily be released until the victim decided to go forward.

Her suggestion in fact contains similar ideas to Fischette’s vision for expanding and strengthening the college’s Title IX support system, including developing a more comprehensive method of collecting data.

“There will be a compilation Title IX investigation report, which will compile all the investigation materials together, but that has no determination of guilt. It’s more like fact-finding and presenting it all in a complete package to the judicial system,” she said.

Fischette, who is only acting as the Interim Title IX Coordinator until the full-time position is filled, is a central figure in the college’s plan to revamp the role of the Title IX Coordinator position as one that oversees and streamlines the college’s policy of maintaining student privacy.

“I can imagine from a student perspective worrying ‘if this referral is made, who is going to know, what are they going to know?’…That information is only shared on a need-to-know basis. Patricia will do a wonderful job of being that point person in terms of who else might need to know,” Braun said.

If this system is to run smoothly, the college has to make sure it builds students’ trust in Fischette – just as the college is putting its trust into students acting as required reporters – seeing how this process is highly dependent on how effectively she can exercise her judgment and discretion.

The college has a monumental task before it – building students’ trust in not only Fischette, but also the confidential resources available on campus, and in the largest sense, the system itself. Pointing students in crisis toward professionally trained, capable resources is in the college’s best interest, for all people involved in a sexual assault case.

“We’re really trying hard in every setting to really stress the confidential resources available to any student at any time, particularly a student in crisis who may not know what they want to do in the immediate aftermath of a trauma,” said Nancy Nicely, spokesperson for the college.

Not only does this benefit a victim or survivor by placing them in more experienced, capable hands, but it also relieves a massive burden from students who may not have received the training that required reporters, members of CAPS, Worth Health Center nurses, or Religious Advisers would have received through the new policy.

“If the reporting process works well, what it does is it ensures that the survivor has access to the support systems that are legitimate support systems like people who have training, people who are equipped to deal with this, while also protecting the rest of the campus,” Hope Brinn ’15 said.

This revitalized effort by the college to protect students, whether they are personally involved or affected by sexual assault or not, has not gone unnoticed.

“What I really see that is good about this and from RA training is that people are really working on this campus to make changes that are positive and safe for students. It might not seem that way all the time, but I really do think that there are people…in the Dean’s Office [who] if you got to know them as an individual, you would understand that they really do have students’ best interests in mind,” Scott said.

Having the number of confidential resources significantly reduced certainly pushes students, in some instances against their instincts, to engage with the resources they should be engaging with, rather than the resources they want to. Brinn personally understands the sense of security that many students feel in confiding in a close friend.

“I am someone who was assaulted and didn’t report it for a year and a half. Now I told people, and they didn’t tell, and I’m very grateful in some ways that they respected my confidentiality, because I felt like I had control over the process,” she said.

Brinn continued, “The idea that a friend who knows nothing about trauma or sexual assault is not a trained therapist, is not trained to deal with this, has to keep this horrible traumatic information confidential, is a form of trauma for the friend…keeping that information in about something so terrible is incredibly, incredibly difficult. The people who are supposed to be confidential resources like therapists, attorneys, religious advisors, they study for years and years and learn skills to deal with this.”

However, the issue remains that the rule changes remove an incentive–the guarantee of confidentiality–to refer a potential instance of assault or harassment to fellow students. Victims and survivors may still be prevented from going to individuals who they would normally gravitate towards, such as a close friend who happens to work as an RA, and students who wish to obtain their right to exercise confidentiality would refrain from applying to such positions.

“The problem is that in a lot of cases, more people just stay silent and suffer alone, because they don’t feel safe telling their friends something without having control of that information,” Ferguson said.

As it stands, all eyes are on Swarthmore. Students have been waiting restlessly since last semester for change to happen, and the college has been keen on showing that it is capable of acting. However, their eagerness to prove themselves still has Ferguson on edge.

“I know that fixing these problems is really difficult in a lot of ways, but as long as you don’t flail your arms and hurt people in the process of coming up with such solutions, then you’ll totally be forgiven for shortcomings in your policy. Because no one’s doing it right nationally, and the government knows that, and the government knows that these laws have been too ambiguous for too long,” she said.

With its new interim policy, the college has the chance to set a national precedent with the direction it decides to take. According to the definition of “retroactive reporting” as set by the college, certain students could never file Clery Act or Title IX complaints without either having to divulge information of every case they encounter during the process, or leaving their on-campus job. Newly formed positions such as the Sexual Assault Advocate and the Grievance Advisor and Community Educator have the potential of shaping the way sexual assault cases move forward for both parties for the future.

“It’s up to the students now that the policy has changed to test the waters with these new policies,” Scott said.

“I think [Swarthmore] is absolutely going in the right direction. If you compare it to other colleges going through the same thing, Swarthmore is out of everyone’s league,” Brinn said.

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