NORTH NEWTON (KS)
IntoAccount [Lawrence KS]
October 11, 2022
By Dwight Krehbiel, PhD, Professor Emeritus of Psychology, Bethel College
Several years ago, Into Account hosted a series of posts from students and faculty in the Bethel College (North Newton, KS) psychology department, exploring the implications of a 2018 report on sexual harassment in academia from the National Academies of Science, Engineering, and Medicine (NASEM). The last planned post in that series, on the problems with mandatory reporting policies in higher education, fell through the cracks when the pandemic hit.
Now is a good time to pick it up again. As the U.S. Department of Education moves towards a much-needed overhaul of the Trump era Title IX regulations, one proposed change drawing extensive criticism is a proposal to place near-universal mandatory reporting requirements on all federally funded colleges and universities. In the time since our original series was released, more empirical evidence is emerging that confirms what advocates like those of us at Into Account have long suspected: that these campus-wide policies take control away from survivors, have a chilling effect on reporting, and impede the ability to teach about sexual violence in college classrooms.
As we wait for the final version of the new Title IX regulations, let’s hope that Secretary of Education Miguel Cardona and his colleagues listen to the expert feedback about mandatory reporting in higher education.
–Stephanie Krehbiel, PhD, Executive Director and Erin Bergen, Director of Student Advocacy
This post is the fifth in a series on sexual harassment in colleges and universities. While it is also based upon the report on sexual harassment released by the National Academies of Science, Engineering, and Medicine (NASEM, 2018), as were the earlier posts, it draws more heavily on other recent research literature than the others did, particularly a review and research report by Holland, Cortina, and Freyd (2018).* All the research on sexual harassment necessarily relies on incidents that are reported in some way. Some of these are formal individual reports to the institutions in which the incidents occurred, typically through the Title IX process of that institution.
However, when sexual assaults are perpetrated on students, the percentage of incidents reported in this manner is extremely small — only 6% in a study at the University of Texas-Austin (Busch-Armendariz et al., 2017). Thus, the vast majority of the incidents are reported only through anonymous surveys to institutional campus climate surveys or to scholars who are using surveys to conduct research on sexual harassment. The possible factors leading to such infrequent formal reporting of sexual harassment and their implications for our understanding of sexual harassment on college and university campuses are the topic of this post.
A previous post in this series (Krehbiel, 2020) examined the issues surrounding legal requirements for colleges and universities when incidents of sexual harassment are reported. Legally mandated responses of the institutions rely on formal or at least informal reports by those harassed or assaulted. These responses receive a great deal of public attention and are often portrayed as a primary mechanism whereby institutions provide support for survivors of sexual harassment. As noted in my previous post, these institutional efforts are severely limited by the reluctance of harassment survivors to report harassment. Thus, if academic institutions regard support of sexual harassment survivors as a significant goal, they are faced with a need to understand and overcome this reluctance.
Without necessarily arising from a deep understanding of the factors affecting likelihood of reporting, one rather widely used strategy to increase the likelihood of sexual harassment reporting is to require such reporting. Survivors themselves are not required to report, but college or university employees who learn about the incidents may be required to report them. Policies based upon this strategy are variously referred to as “mandatory reporting” or “compelled disclosure.” These types of policies are best known as measures to address sexual abuse of children, often with teachers designated as mandatory reporters (Holland et al., 2018). In this context mandatory reporting by adults is assumed to be necessary because children are not themselves fully capable of deciding whether or not to report the abuse.
The issues are somewhat different in institutions of higher education, where students are generally not minors and are assumed to have the wherewithal to make decisions such as whether to report experiences of sexual assault to authorities. This latitude to make decisions is not respected if institutional employees are compelled to disclose information about such occurrences without the consent of the student. A somewhat similar situation arises outside higher education settings as well through widespread state laws requiring reporting of intimate partner violence by medical personnel to police or social services (Holland et al., 2018).
For colleges and universities Holland and associates (2018) identify two main categories of employees whom the institution designates as mandatory reporters. One is Campus Security Authorities, who are required under the Clery Act to report sexual assault information though without any identifying information about survivors. The second is Responsible Employees, designated under Title IX, reporting information about sexual assaults including names and other identifying information about survivors, irrespective of the wishes of the survivors. Reports by Responsible Employees commonly go to the institutionally designated Title IX Coordinator. The latter form of compelled disclosure has become the focus of much concern because personal identifying information may be disclosed without the survivor’s consent. This further loss of control by the survivor may exacerbate the experienced trauma.
LOSS OF CONTROL BY SURVIVORS
To understand the severe disempowerment arising from this loss of control, we need to explore further the reported experience of survivors. Chapter 4 of the NASEM report (2018) includes a review of evidence about the causes of the extremely low levels of sexual harassment reporting to institutional authorities (characteristic of faculty and staff targets of harassment as well as of students). Fears of retaliation, being blamed, uncertain outcomes, a process that may be biased toward the institution rather than individuals, and lack of confidentiality are commonly reported. All of these concerns may entail a perceived loss of control by the survivor. A testimonial to the critical role of the survivor’s perceived control is shown in the following quote from the memoir of a survivor (Freitas, 2019, p. 177):
My own survival depended on my still being able to call the shots, to make the decisions, to say yes or no to the people who now shared the knowledge of my situation. I needed to retain control, at least some control—or regain it, really—since for the last year my primary experience was to have no control at all. I wanted some of that control back.
The impact of these concerns across the higher education landscape depends, of course, on the extent to which such reporting by Responsible Employees is characteristic of colleges and universities. This extent is governed by college and university policies designating employees as mandatory reporters, policies which entail institutional choices about how to comply with Title IX laws and regulations. Holland and associates (2018) surveyed a random sample of 146 colleges and universities (stratified by size — small, medium, large) and found that 88% designated all or almost all employees as Responsible Employees (i.e., mandatory reporters). In other words, across American higher education, this policy is nearly ubiquitous in two ways — almost all employees at almost all colleges and universities.
It is ironic that a widely recognized principle for appropriate sexual interactions is consent (e.g., it is a critical component of the definition of sexual misconduct in a model policy of the organization that provides training for Title IX coordinators — Sokolow, Lewis, Schuster, & Swinton, 2015), while there is apparently no similar principle governing these widespread compelled disclosure policies arising from Title IX. Discovery by survivors that their consent does not determine whether or not personal details of their traumatic experience are revealed to others, and perhaps even that someone whom they had trusted had made the revelations (because that person turned out to be a mandatory reporter) is surely not going to enhance their trust in the institutional reporting process. Other survivors almost inevitably will hear of their experiences. Experiences such as these in which an institution further harms victims of traumatic experiences have been characterized by some researchers as “institutional betrayal” (Smith & Freyd, 2014). Recent research indicates that trust in the Title IX office of the institution plays a significant role in determining the intentions of women to report assaults (Holland, 2020).
IMPACT OF MANDATORY REPORTING ON EMPLOYEES
Thus, it seems clear that many survivors of sexual harassment in institutions of higher education do not view existing institutional Title IX mandatory reporting policies as being in their best interest. One can also ask how others involved in the reporting process perceive these policies. Title IX coordinators themselves tend to be advocates of mandatory reporting, reflecting their own professional training. An important part of their responsibilities is to inform other employees and students about institutional policies regarding Responsible Employees (mandatory reporters). Ambiguity may be avoided if all employees have these same responsibilities. On the other hand, training all these employees for this often complicated role, which is also a requirement of the regulations surrounding Title IX implementation, is very difficult. Missteps by inadequately trained mandatory reporters are another significant risk to survivors (Holland et al., 2018).
Recent studies of college or university employees who are faced with mandatory reporting responsibilities raise additional questions about compelled disclosure policies. In addition to concerns about exacerbating the trauma experienced by survivors, employees who provide services to students (e.g., counselors) believe that they or advisors or professors are expected to support and protect students and that to violate the wishes of students through a mandatory reporting requirement conflicts with that expectation (Holland, Cipriano, & Huit, 2019). The group for whom mandatory reporting is perhaps the most burdensome is student employees. A recent study of the perceptions of student resident assistants regarding mandatory reporting found ambivalence about these requirements. In particular, assistants were concerned about how the requirements complicated their efforts to build community and establish trust with the students they served (Holland, 2019). Resident assistants in this study who themselves had previously suffered sexual assault were especially distrustful of institutional responses to reports and negative about universal mandatory reporting. A reduced likelihood of reporting sexual assaults (of themselves or others) for those with previous experience of being assaulted was also found in research by Newins and associates (Newins, Bernstein, Peterson, Waldron, & White, 2018).
INSTITUTIONAL IMPACT OF MANDATORY REPORTING AND POSSIBLE ALTERNATIVES
As they implement compelled disclosure policies, institutions of higher education pursue a variety of desirable goals such as support for survivors, accountability for perpetrators, enhanced campus safety, and avoiding legal liability, among others. Whether the policies are actually helping them achieve these goals remains very much an open question (Holland et al., 2018; Newins et al, 2018). However, because of the extremely low likelihood of reporting sexual assault, as well as other measurement concerns, one issue that may sometimes be regarded as controversial has been largely laid to rest. There is now little doubt that a compelled disclosure policy does not provide a valid mechanism for assessing the severity of the problems of sexual assault and harassment on a campus. The NASEM report (2018, p. 82) is particularly unequivocal on this matter:
. . . institutions should not expect to gain a comprehensive understanding of the extent of sexual harassment on their campus from the number of sexual harassment cases reported by targets. Rather, institutions should work to gain a better sense for the prevalence and impact of sexual harassment through regular, anonymous campus climate surveys . . .
Fortunately such survey instruments have been rather extensively reviewed (Krause, Woofter, Haardörfer, Windle, Sales, & Yount, 2019) and are readily available (e.g., Krebs et al., 2016).
Perhaps the gravest concerns about compelled disclosure in its current form pertain to (1) the lack of consent for reporting and the potential retraumatization that it entails for survivors, and (2) the ethical violations forced upon employees who must submit reports in spite of that lack of consent. A variety of alternatives providing more options for voluntary reporting have been described (Holland et al., 2018). Institutions that currently designate all or almost all employees as mandatory reporters, might enhance reporting by designating more confidential employees — those who are not mandated to report to the Title IX coordinator and can keep a survivor’s report confidential (Newins, 2019). A survivor-centered approach might also designate student-directed employees, who follow the wishes of students who report incidents to them, reporting them to the college or university administration only at the student’s request (Holland, Cortina, and Freyd, 2019). Yet another option is to offer a third-party reporting option such as Callisto, which has received wide attention in the media (Ladd, n.d.). Legal aspects of this and other technologically based reporting systems have been recently reviewed (Liu, 2018).
Reporting of sexual harassment by survivors and others is a crucial basis for our knowledge of the nature and scope of this problem. Creating evidence-based approaches to the problem has been greatly hampered by the unreliability of that knowledge because of the numerous factors that influence reporting. In higher education a widely adopted approach to improving that knowledge has been to mandate reporting by all employees of any sexual harassment incidents that come to their attention. While the intentions underlying such policies may be laudable, there is no evidence that they have increased the number of incidents reported to institutional authorities. An even greater concern is the considerable evidence of harm to survivors who are retraumatized by the reporting process. More survivor-centered reporting policies as well as regular campus climate surveys appear necessary to gather more reliable evidence about campus sexual harassment.
* We encourage policy-makers and administrators to supplement this piece with “Reporting is not supporting: Why mandatory supporting, not mandatory reporting, must guide university sexual misconduct policies,” published in December 2021 in the Proceedings of the National Academy of Sciences. Dr. Kathryn Holland, the lead author, builds on the 2018 research cited throughout our blog post.
Busch-Armendariz, N. B., Wood, L., Sulley, C., Kammer-Kerwick, M., Kellison, B., McClain, T., Hoefer, S., Wang, A., Westbrook, L., Olaya-Rodriguez, D., Hill, K., & Wachter, K. (2017). Research Methods Report: Cultivating learning and safe environments – an empirical study of prevalence and perceptions of sexual harassment, stalking, dating/domestic abuse and violence, and unwanted sexual contact. Institute on Domestic Violence & Sexual Assault, The University of Texas at Austin.
Freitas, D. (2019). Consent: a memoir of unwanted attention. Hachette Book Group, Inc.
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Ladd, J. (n.d.). How I help sexual assault survivors feel like they’re not on trial. Brief but Spectacular. Retrieved March 23, 2020, from https://www.pbs.org/newshour/brief/231133/jessica-ladd
Liu, H. (2018). When whispers enter the cloud: evaluating technology to prevent and report sexual assault. Harvard Journal of Law & Technology, 31(2), 25.
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Newins, A. R., Bernstein, E., Peterson, R., Waldron, J. C., & White, S. W. (2018). Title IX mandated reporting: The views of university employees and students. Behavioral Sciences, 8(11). https://doi.org/10.3390/bs8110106
Newins, A. R. (2019). Ethical considerations of compelled disclosure of sexual assault among college students: Comment on Holland, Cortina, and Freyd (2018). American Psychologist, 74(2), 248–249. https://doi.org/10.1037/amp000036
Smith, C. P., & Freyd, J. J. (2014). Institutional betrayal. American Psychologist, 69(6), 575–587. https://doi.org/10.1037/a0037564
Sokolow, B. A., Lewis, W. S., Schuster, S. K., & Swinton, D. C. (2015). ATIXA sex/gender-based harassment, discrimination, and sexual misconduct model policy. Association of Title IX Administrators. https://cdn.atixa.org/website-media/o_atixa/wp-content/uploads/2012/01/18122345/ATIXA-Mode l-Policy_07-02-15_Final.pdf