As a previous student of psychology and human services, I am aware of what I was always taught about confidentiality between counselors and clients: Clients have the privilege of confidential records unless, under specific circumstances, their records are necessary for a police investigation or may indicate a physical danger to the clients or people those clients may know. This is why it came as a surprise today when I first heard about a lawsuit involving University of Oregon counsel that had access to a rape victim’s university counseling records after she had sued UoO for mishandling her initial case against the three students who were found guilty of sexual assault against her.
In that case, according to an overview at The Chronicle of Higher Education, the UoO campus judicial body found three male students guilty for raping the victim. In the time following, they were subsequently banned from the university’s basketball team and then barred from entering school grounds. It all appears, on the face of it, to be standard fare and perhaps a legal win for the victim and for other students who may be in a similar situation and who need or want to come forward.
However, if you dig beneath the surface, you will find that the UoO judicial body allegedly dragged on the case for long enough to allow the three male students to finish their basketball season. After learning that information, the victim sued the university, and the university filed a counterclaim to protect itself from the so-called “frivolous, unreasonable” student complaint. It was at this point, however, that the worst was yet to come because the legal defense counsel used the Family Educational Rights and Privacy Act (FERPA) to legally obtain detailed records of the victim’s on-campus therapy sessions. The counsel used those personal records in its defense against the victim’s lawsuit.
I can practically hear you asking now, “How is this possible? Aren’t such records supposed to be confidential and beyond access for such a legal counsel?” Normally, it appears, that question would be correct. Regarding most counselor-client privilege and the laws of the Health Insurance Portability and Accountability Act (HIPAA), such records would be out of reach. But FERPA marks records that are part of university-sponsored healthcare to be out of the realm of HIPAA because it deems them “treatment records” — not medical records.
FERPA allows access to treatment records in two cases: with a student’s written consent or with an exception. One of those exceptions is when the student sues the university such as the victim did here against UoO.
The university has since dropped its counterclaim after facing public outcry against its actions. That does not change the laws that inflicted yet more hardship on the victim with regard to her rights under HIPAA and FERPA. The Chronicle of Higher Education calls for all students to seek counseling outside their university systems if they can find and afford it. Local rape-crisis centers can provide some help free of charge and even lead students toward longer-term help in the form of a local counselor. Costs for counseling can be high, though, and it may be the case that health coverage tied to universities does not cover private counseling outside the university system when in-house counseling is available.
If nothing else, there may need to be a change in the definitions which govern student’s personal records. This case shows that there are significant distinctions between types of records and that the medical lives of students can unfairly seep into their academic lives. It is my personal hope that students can find the counseling they need and that situations such as the one described above do not hinder progress made in the sensitive arena that is sexual assault. Victims should feel free to come forward and should be able to find personal protection within the office of a counselor and legal protection from their institutes of learning and local law enforcement. There should be no shame involved in the aftermath of such events; certainly, there should be no second-guessing whether or not the most private of counseling sessions are truly out of sight from unwanted eyes.
Sexual Assault Awareness Month takes place in April. You can get involved and learn more at the National Sexual Violence Resource Center.
Image courtesy of U.S. Navy via Flickr (caption: Members of the U.S. Navy participate in a community walk in support of Sexual Assault Awareness Month.)
