A School’s Obligation to Respond to Sexual Violence in New York

According to Title IX, schools must take immediate action when they become aware of an incident of sexual violence, and take steps to investigate the claim, impartially and thoroughly.

Sometimes, however, a student may ask that their identity not be revealed, that disciplinary action not be taken against the alleged perpetrator, or that the school not pursue an investigation.

The Office for Civil Rights (OCR) recommends that a student’s request for confidentiality be respected, however, there are certain situations where it may be necessary for the school to override the student’s request in order to be in compliance with Title IX.

Whether a school can honor the request for confidentiality or not, it is important that the school respond to an alleged act of sexual violence in New York by protecting the victim during the entire investigation process.

Protecting a Student’s Confidentiality

If a student requests confidentiality when making a Title IX complaint in New York, the school must take the necessary steps to protect the student’s identity. In order to do this, a school must only disclose information about the sexual violence to the Title IX coordinator and those responsible for investigating the incident within the school.

A school must also inform the student that the investigation may be limited if details of the incident are kept confidential, and that it may be impossible to take disciplinary action against the alleged perpetrator.

However, even though a school may be unable to fully investigate a sexual violence incident, the school can still take steps to address the violence and prevent future occurrences.

For example, universities and colleges can increase security on campus, provide additional sexual violence education to students, or change the school’s policies regarding gender-based harassment.

Overriding a Student’s Request for Confidentiality

Under certain circumstances, a school may be unable to keep a student’s identity confidential, even if the student specifically requests that the school not investigate the incident or reveal their name to the alleged perpetrator.

Whether or not a school can protect a student’s confidentiality depends on if the school can still provide a safe environment for its students without fully investigating the case.

To determine this, a school must evaluate if the alleged perpetrator is likely to continue committing further offenses by looking at whether the perpetrator:

• Has a history of committing sexual violence
• Has a criminal background
• Has multiple Title IX reports made against them
• Has threatened sexual violence in the past

A university should also take into consideration the age of the victim and whether the violence involved a weapon when determining if the school can honor the victim’s request for confidentiality.

If the school decides it must override the student’s request, it should take the necessary interim measures to protect the student, such as no-contact orders, rearranged schedules, and changes to housing assignments.

Obligations of Mental Health Counselors

School employees who receive reports of sexual violence in New York from a student are usually considered “responsible employees” and are obligated under Title IX to report it to the university. However, employees who carry professional licenses requiring confidentiality are not required to report the incident, including:

• Pastoral counselors
• Social workers
• Mental health counselors
• Doctors
• Therapists

Other employees exempt from mandatory reporting under Title IX include staff at women’s centers, victim advocacy offices, and health centers, which even includes front desk staff.

Even though these employees are not obligated to report sexual offenses to the campus’s Title IX coordinator in New York, it is important that they provide access to resources, counseling, and medical support, as well as offer information on the school’s policies and how to file a Title IX complaint.