Utah lawmaker proposes making campus advocate conversations with sex assault victims confidential

When students walk through the doors of Weber State University's Women's Center, they come face-to-face with a sign declaring the center nonconfidential.

That means the center's victim advocates may be required to share information about an alleged sexual assault victim's attack as part of federal requirements, or be compelled to do so by law enforcement or university officials, for example.

But a bill filed Wednesday by Rep. Angela Romero, D-Salt Lake City, aims to change that, making communication with the victim private and confidential, with some exceptions.

"We believe this will encourage more survivors to report," said Turner Bitton, executive director of the Utah Coalition Against Sexual Assault (UCASA), after a Monday news conference. "By doing [this] we are putting the victim in charge of their own future."

But S. Daniel Carter, board vice president of SurvJustice, a nonprofit that provides legal assistance to victims of sexual violence, said the bill's wording would need changes to actually increase confidentiality for Utah victims under federal law.

Utah colleges currently have a patchwork of policies regarding communication with victim advocates. At Weber State, advocates are considered "responsible employees" under Title IX, a federal law that requires universities to swiftly respond to complaints of sexual violence. So when a victim reports such an attack, those advocates must report that information — including some identifying details — to the school's Title IX office, said Stephanie McClure, director of Weber's center.

McClure said that offering a confidential relationship while the student is navigating the school's system and resources is beneficial.

"A lot of times advocates are able to build trust with survivors in ways that other folks are unable to do because they're focused on the survivor as their primary, number one thing," McClure said, adding that some students may not feel comfortable coming to advocates if their conversations are not kept private.

A recent UCASA survey found that this is a concern for some student victims: 21 percent of about 1,500 victims polled said they did not report "due to concerns of confidentiality."

Under HB251, advocates who have finished at least 40 hours of trauma-informed training can become a confidential advocate.

That advocate only can disclose information about the alleged victim's attack if the victim gives informed, written consent or the disclosure is required under federal law, according to the measure.

The two most relevant federal laws — Title IX and the Clery Act, which deals with campus safety — specify which university employees must report details to school officials, Carter said. These laws grant some exceptions for "privileged communication" — such as conversations with certain counselors or priests, he explained.

Romero's legislation, in its current form, only protects "confidential" communication, considered a lower standard than privileged, he said.

Victims need to be able to access resources in confidence, "but this bill, as introduced, will not effectively address that need as it relates to the Clery Act or Title IX," he said. "If this bill passes and survivors expect it to shield their information and it does not, the consequences could be devastating."

Even privileged employees may have an ethical or legal obligation to breach that privilege — if there is an immediate threat to student safety, for example — and Title IX and the Clery Act could apply in those instances, Carter said

For example, when universities have a credible report that a student has sexually abused multiple students, "that pattern of conduct should trigger an inquiry" — even without a formal complaint from an alleged victim, he said.

A bill such as Romero's is not unprecedented in the U.S.: Oregon's governor signed a similar measure into law in the summer of 2015. Oregon officials have found that more students have formally reported their attacks to university officials since the law was implemented, said Jackie Sandmeyer, campus coordinator for the Oregon Attorney General's Sexual Assault Task Force.

Preliminary numbers show that in 2016, there has been a 120 percent cq increase in students making formal Title IX reports that resulted in an investigation and adjudication since privileged advocates were implemented on campuses, Sandmeyer said, and a 138 percent increase in student victims accessing on-campus victim services, such as counseling and changes to housing and classes.

Under Oregon's law, campus victim advocates can voluntarily complete at least 40 hours of trauma-informed training to become privileged advocates. There currently are nearly 200 cq privileged advocates at campuses across that state.

"When [Oregon campus advocates] weren't privileged, students never made the initial step: Most students were going into the community or they were just staying silent," Sandmeyer said. "The best way to get more students to come forward is to say you have an option" to remain confidential.