It’s a horrific scene, one all too familiar but also straight out of your worst nightmares: a college-aged girl is at a party, drinks too much and things get out of hand. But the next thing she knows, three men who all easily could individually overpower her are locking her in a room. She is violated in every sense of the word before being dragged into a car and being taken to another house, only to have it happen again. Then they all leave, leaving her alone, undressed in an unfamiliar environment, confused and upset.
This is, unfortunately, the story of many. But in this case, it’s the story of a University of Oregon student, who chose to file a federal Title IX lawsuit against the school under the name Jane Doe.
The woman, whose name is understandably not listed in any source about the incident, pressed charges against three Oregon basketball players — Brandon Austin, Damyean Dotson and Dominic Artis — about a year ago. According to the police report filed by the Eugene Police Department, the victim first stated that she wanted the three men to get “a slap on the wrist,” stating that she didn’t “want to ruin their lives.”
And the university took that statement very literally: Oregon basketball coach Dana Altman, despite knowing about the charges filed against the three players, allowed Austin and Artis to play in the Pac-12 and NCAA postseason tournaments. Because Austin was a transfer student from Providence College, he was ineligible to play during the 2013-14 season.
“The Eugene Police Department requested that we not do anything that might hinder their criminal investigation — including suspending players or not playing them in a game,” University of Oregon President Michael R. Gottfredson said in a press conference on March 9, 2014, three days before the Ducks’ opening Pac-12 Tournament game. “We complied fully with that request, and appropriately so.”
The university, appropriately, faced much criticism for this decision, and in June found the men responsible for sexual misconduct. They are now banned from campus for a minimum of four years and maximum of 10, depending on how long the victim is on campus, the victim’s lawyer John Clune told The Huffington Post.
It’s a nightmare indeed, but it’s far from over. The victim is now suing the university and Altman for mishandling her case in the name of Title IX.
She claims that not only did Oregon violate the law by delaying the trial so that the men could play in the NCAA tournament, but they also handed over the victim’s counseling records to their lawyer.
It seems as though this is a blatant violation of HIPAA, or the Health Insurance Portability and Accountability Act, which is supposed to keep medical records private. But the university is claiming that since the victim sought counseling through the university, they can use it as evidence in her trial by means of FERPA, or the Family Educational Rights and Privacy Act.
According to FERPA, notes from on-campus counseling falls under the umbrella of “education records or treatment records.” And technically, they are correct.
In addition to this shocking loophole, Jennifer Morlok, a staff member at the University of Oregon’s counseling center, wrote in a letter to university administrators that the university was engaging in “potentially illegal and unethical behavior” when they went through the victim’s medical records.
“My concern was confirmed when it came to my awareness that the client’s clinical records were accessed without the client’s permission or consent and without proper authorization prior to any litigation occurring,” Morlok wrote in a letter obtained by HuffPost.
What is probably most disgusting about the handling of this case is that in the investigation, they want to take into account the victim’s counseling history but not the disciplinary history of one of the perpetrators, who was previously expelled from another school for sexual misconduct, HuffPost reported. It speaks to sexual assault investigation reform at universities — a huge problem that we see time and time again is blaming the victim. In pulling her counseling records, they’re not focusing on the bigger issue, which is the three men who allegedly raped her.
Highly publicized cases such as this one, where the victim is being treated so poorly, can cause other problems as well, discouraging other survivors from coming forward and reporting. It’s just a continuation of the stigma toward rape allegations, making the victim less of a victim and more of someone to antagonize.
What is the purpose of HIPAA laws for protection if things like this can happen? Records concerning mental health are the kinds of records that one cares about other people seeing. If we have HIPAA, the laws need to protect patients to the fullest extent.
Furthermore, whether or not the victim had mental health issues before she was raped doesn’t matter. What matters is answering one question: why do they need this information at all? Mental health records aren’t needed to confirm the existence of rape or the gruesome nature of the rape.
What are they looking to find by gaining access to her counseling records? Are they trying to see how brutally she was raped? If it messed her up enough to count as “legitimate?” It doesn’t matter how “badly” she was raped — she was raped, and all rapes are equally horrible and traumatizing. It’s not something you can put on a spectrum of legitimacy.
The point of counseling is being able to talk to someone anonymously and off the record, and most importantly, in a safe environment. There’s no reason that universities should be able to manipulate rules to take away from the value of on-campus counseling. The resources are there to help students. Why does there need to be a catch?
