Rape Victim's Title IX Claims Against Columbia Dismissed

A federal court in New York dismissed a Columbia student's lawsuit against the university alleging that its inadequate response to sexual misconduct in general, and to her own rape in particular, violated Title IX. Specifically, the student alleged that she was raped twice in her dorm room. She claimed that Columbia's liability for the first rape stemmed from its indifference to the problem of sexual assault on campus. This allegation involved too-general a threat, however, to impose some specific obligation on Columbia. Institutions are only liable for pre-assault conduct if they failed to respond to a more specific threat, such as notice that the plaintiff herself was under a heightened risk of assault, or notice involving the particular context or manner in which the plaintiff was assaulted. Absent such allegations, the court dismissed this aspect of her Title IX claim.

The plaintiff also alleged that Columbia was liable for the second rape because it did not adequately respond after she reported her first rape.  The court's conclusion that this claim was also insufficient stemmed in part from the lack of notice that the university received. For one thing, she did not report the first rape to her professor, she only alluded to rape in vague enough ways that did not trigger the professor's responsibility to report to the university's Title IX office. For another, though she later reported the rape at an advocacy group meeting, Columbia policy specifically exempts rapes disclosed "at public awareness events, such as protests, “survivor speak outs,” and other student advocacy forums" from triggering an investigation. The fact that Columbia officials did reach out to her following the disclosure, and that they respected her wishes not to pursue an investigation, precluded the court from characterizing Columbia's response as clearly unreasonable, as required to impose liability under the deliberate indifference standard.

This case made me think about the ongoing debate about mandatory reporting policies. I'm noticing increasing research and advocacy against the mandatory reporting policies, such as this new paper in American Psychologist, which concludes that evidence does support the belief that mandatory reporting policies are helpful to survivors, and that they may in fact harm survivors by limiting their autonomy. The paper proposed several alternatives that the authors believe are more survivor-focused, such as allowing university personnel who receive a student's report of sexual assault to respect the victim's choice on disclosure, and to whom an incident may be reported, and allowing victims to chose whether their report gets investigated.

But what are we supposed to make of those findings  and recommendations in light of stories like the plaintiff's here?  Her autonomy was preserved --  by a mandatory reporting policy that let her say just enough to her professor without triggering the professor's obligation to report, and that exempt disclosures made at public awareness events.  It further preserved her autonomy by allowing her to determine whether her first rape got investigated.  Her autonomy was preserved, but was her safety?  She was raped again.  And I think it's telling that in retrospect she argues that the university should have done more to protect her safety, and that she faults the university for the very things that the university did to preserve her autonomy.

I don't purport to know the right balance between safety and autonomy here, but I am concerned that we are not talking enough about the risks, not only to victims and survivors, but to the campus community as well, stemming from a university's well-meaning choice to do nothing rather than respond.  I appreciate research like the paper I noted above, but I hope there are equal efforts to document the harm that results from policies like the one those authors propose.

The decision described in this post is: Roskin-Frazee v. Columbia Univ., 2018 WL 1166634 (S.D.N.Y. Feb. 21, 2018).