CONFIDENTIALITY VS. LEGAL OBLIGATION

Tim Burke, Manley Burke, tburke@manleyburke.com

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“I’ve been raped, but please don’t tell anyone.”

When the young member of a fraternity or sorority comes to an officer or an alum advisor with that statement, it presents a difficult dilemma.  Obviously, there is a desire to be supportive of the victim and to honor their request for confidentiality.  But that might not be the correct or legally appropriate thing to do.

Notre Dame College, not the one with the golden dome, but the smaller liberal arts college in a Cleveland, Ohio suburb, recently learned just how inappropriate maintaining confidentiality under those circumstances can be.  Late in 2005, a Notre Dame co-ed reported to the Dean of Students at Notre Dame that she had been sexually assaulted by another student whom she named, but she asked that the attack on her be kept confidential.  The Dean apparently agreed and the matter was not reported to the police.  Shortly afterward, a second co-ed approached the Dean with a similar complaint about the same assailant.  Again, the victim asked that her complaint be kept confidential and, again, the Dean of Students honored that request.

Ultimately, another assault occurred on campus, and the same perpetrator was named.  This time it was reported to the police and after their investigation was complete, charges were brought against the perpetrator for sexual attacks on six separate students at the College.

When the Grand Jury issued the charges against the assailant, the startling thing was that it also issued charges against the Dean of Students on three counts of the failure to report a felony.  Those charges, just brought in June, remain pending as this issue of Fraternal Law goes to press.

While criminal law varies from state to state regarding the obligation to report a crime, generally there is an affirmative legal obligation when someone has direct evidence that a felony, a serious crime, has been committed to report that to the police.  The section of the Ohio Revised Code under which the Dean of Students was charged (O.R.C. 2921.22) is fairly typical in demanding that, “No person, knowing that a felony has been or is being committed, shall knowingly fail to report such information to law enforcement authorities.”  The failure to do so is, under Ohio law, a fourth degree misdemeanor and subjects the defendant to potential jail time and fines.

Obviously, too, there is the potential for civil liability.  It is easy to see why.  Especially in the Notre Dame case.  It is not difficult to conclude that had the Dean of Students reported the first incident to the police, the second, third, fourth, fifth and sixth incidents may never have happened.  Arguably, those later victims have a civil cause of action for damages, not only against the Dean but against Notre Dame under the legal theory of respondeat superior.  As the Latin implies, the master (the college) may, under many circumstances, be responsible for the wrongdoing of the servant (the Dean).  One Cleveland newspaper reported that when the President of the college finally learned the whole story, he immediately asked “how much insurance do we have?”

Obviously, the victim of a sexual assault needs the support of friends and anyone else he or she consults with, but the fact that the victim wants to maintain confidentiality does not relieve someone who learns of the assault of the obligation to report it.  Obviously, it is a different situation if the victim is reporting the matter to an attorney, where the attorney-client privilege may apply.  But there is no such privilege that extends to the President of a Chapter or an Alum Advisor.  If confronted with such a report, but the victim does not want to report it to the police and wants you to keep it secret, the best thing to do is to let the victim know that you want to be helpful and supportive, but under the law you may have an obligation to report it to the police.  Promptly consult with legal counsel to determine what the specific obligations are in your state.  Tell the victim you are going to do that.  Once you have the legal advice that is necessary, follow it.  If your lawyer tells you to report what you know to the police, do it.

The victim may choose not to prosecute.  Depending on what the law is in the state where the attack occurred, she may have the right to make that choice, but at least the matter will have been reported to the police, who can do their own investigation.  And at least you won’t be responsible for future attacks by the same perpetrator who remained free only because his initial crime was not reported.