In Raped on Campus? Don’t Trust Your College to Do the Right Thing, former law professor Katie Rose Guest Pryal discusses the recent University of Oregon incident, in which UofO lawyers legally accessed a student’s rape trauma therapy records when she sued them for mishandling a charge of rape against their basketball players. Pryal wrote
My advice is simple.
Students: Don’t go to your college counseling center to seek therapy. Go to an off-site counseling center. If, God forbid, you’ve been sexually assaulted, try to find a rape-crisis center. It will have wonderful people to talk to, free of charge. (I know from personal experience.) You simply do not have adequate privacy protections if you go to a college-provided counselor. Sorry. (Or, in the University of Oregon’s case, sorry not sorry.)
Instructors: Don’t advise your students to seek counseling in the on-campus counseling center. There is no way that, in good conscience, I can ever give that advice again. If you have a student in crisis, help that student find support off campus.
The problem with my advice, of course, is one of money—serious money, in some instances. Many student-health plans will not pay for students to see a counselor who is not at the institution’s own counseling center.
The problem is that student medical records are not properly covered by HIPAA (which protects most medical records) but by FERPA (which protects education records). As Pryal says, “compared with HIPAA, FERPA is about as protective as cheesecloth.”
While rape and sexual assault are not huge problems on our campus (thanks, I think, to a lack of frats and Division I sports), they are not unknown either. Although I’ve never had to provide any recommendations to victims individually, I have passed on the group advice that the Title IX officer on campus has recommended, which has never mentioned this huge FERPA-based loophole. Should I now include mention of the problem that therapy records at the student health center are basically unprotected, even if the therapists think that they are?
Pryal’s bottom line is one I agree with:
So my final piece of advice is directed to the U.S. Education Department: Fix this devastating privacy loophole.
Of course, I don’t know if the problem is in the regulations, which the Education Department could fix, or in the law, which would require Congress to act. Given that we now have a Republican Congress, I don’t expect any improvement in laws protecting rape victims—if anything, I’d expect the current Congress to want to assert more institutional control over women’s bodies and less right to privacy (except for the privacy of rich donors to political campaigns, of course—our congress critters are always willing to bend over backwards for those who come with money in hand).