Nondisclosure Agreements Silence Survivors Of Sexual Violence

Note: this blog post was originally published on our Inside Higher Ed career advice column (here). Sheila Liming is an assistant professor of English at the University of North Dakota, where she teaches classes on American literature, theory and media history. Her public writing has appeared in venues like The Atlantic, The Chronicle of Higher Education, and the Los Angeles Review of Books.

The Silencing of Sexual Violence Survivors

Back when I was a freshman in college many years ago, something happened. This something involved someone who was a member of my college’s faculty and me, and it resulted in my filing a complaint relating to allegations of sexual assault. But now, 15 years later, I am compelled to rely on those kinds of ambiguous nouns — something and someone — in lieu of specifics. At the behest of college administrators and representatives, I signed a nondisclosure agreement that prevents me from sharing anything more specific about that something and that someone.

At the time, I understood my silence to be a necessary cost levied in exchange for protection and support. I brought my complaint to a trusted faculty member who, in turn, forwarded it to the appropriate administrator. That administrator then told me that I had two options. I could take my complaint to the police, thereby exposing myself to a public trial, newspaper reporters’ inquiries and the scrutiny of our entire college-town community. Or I could let the college handle the investigation, as long as I was willing to aid that investigation by keeping contractually quiet.

I was 18 years old, living more than 1,000 miles from home. Save for that one trusted faculty member, I had not told anyone about the something, not even my roommate or my parents. So I agreed to a private, internal investigation and signed the nondisclosure agreement — before speaking to a lawyer, before receiving any impartial advice and before having the opportunity to tell my story to anyone who might have been in a position to offer me support.

What Are NDAs?

Nondisclosure agreements — or NDAs — are legal agreements that are employed with the aim of protecting sensitive information. In business, “sensitive information” may amount to trade secrets or specific details about a product. In higher education, colleges and universities have historically turned to NDAs when investigating allegations of sexual violence or misconduct.

NDAs typically mandate that both parties involved in the complaint remain silent so as to avoid impeding a college’s investigation (which sometimes includes the gathering of witness testimony). And in order to further discourage those involved from speaking, NDAs often specify that financial penalties and personal liability are likely to result if either party breaks the agreement. (See, for example, The Washington Post’s coverage of the subject in the context of former presidential candidate Herman Cain.)

But in recent years, critics of the practice have pointed out that such confidentiality agreements stifle student speech and prevent victims — be they the accusers or the accused — from speaking out and sharing their sides of the story. What’s more, as a 2014 Inside Higher Ed article explains, NDAs place comprehensive bans on speech that extend beyond investigative proceedings and remain in effect long after the details of a case have gone public.

That means that victims of sexual violence are unable to shape the narrative that gets told and retold about them — instead, they are held hostage by the whims of gossip and hearsay. This situation has prompted some people to ask whether there might be such a thing as too much confidentiality, since, as one expert explains in the Inside Higher Ed article, “Colleges and universities rarely if ever intervene to correct the public record — even if they were to obtain the consent of both parties.”

Citing those same concerns, in addition to mounting public pressure, some colleges and universities have recently moved to discontinue the practice of requiring NDAs for those people wishing to file complaints of sexual violence or misconduct. American University, for instance, announced last year that it would no longer require students to sign them when filing complaints of misconduct against other students.

But as a more recent series of articles in The Guardian points out, NDAs are particularly common — and thus particularly pernicious — where student complaints against faculty or staff members are concerned. In such cases, NDAs “allow alleged perpetrators to move to other institutions where they could offend again,” thus “masking” the very prevalence of issues of harassment, violence or misconduct — all in the name of confidentiality.

What to Know and What to Do

What all higher education professionals must understand, then, is that such practices governing confidentiality are still very much the norm today. Most institutions still rely on them, which is why it is important that faculty and staff members read and acquaint themselves with institutional policies regarding confidentiality and voluntary disclosure. But, even more important, they need to take an active role in communicating their understandings of those policies to students.

I am not saying that folks in higher education need to memorize their campus’s policies and approach all interactions armed with chapter and verse. Rather, now a faculty member myself, I am arguing in favor of a heightened awareness that may permit university professionals to engage candidly and responsibly with student victims. If a student approaches you with the expectation of confidentiality, you need to inform that person of your ability to listen and, perhaps, act in confidence.

For example, if you hail from one of the many professional disciplines that make you subject to mandatory reporting laws (like law, medicine or social work), or if you serve in the capacity of a campus security authority — which, under Title IX, may also require you to report — you need to be honest in explaining that you may be unable to comply with a student’s wishes regarding confidentiality. A colleague at my institution’s law school recently told me that she was thinking of putting a sign on her door to declare her status as a mandatory reporter so that students would be able to consider their options before approaching her. Similarly, if you know that official student complaints on your campus are likely to be met with secrecy in the form of compulsory nondisclosure agreements, you must be up front and explain as much to a student beforehand.

Here’s why a willingness to be both honest and informed matters: what followed my decision to sign that NDA some 15 years ago were, frankly, the worst four months of my life. I was removed from the course that I was taking with the faculty member in question and instead enrolled in an independent study course, conducted by another faculty adviser who had no experience in the topic and little direct interest in overseeing my studies anyway.

Meanwhile, my absence in the class had not gone unnoticed, and rumors proliferated — rumors that I was contractually bound to accept with good grace since I was not allowed to talk about what had happened. The administrator who had dealt with my case had warned me that my violating the NDA “could compromise the investigation or could violate someone’s privacy and expose me and the college to liability.” Those were not my college administrator’s exact words, but they are the words of confidentiality agreements used by higher education institutions today.

There are alternatives, though. American University, for instance, now favors a confidentiality agreement that includes a First Amendment rights statement. The statement is designed to assure victims that confidentiality is the responsibility of their university but not necessarily required by them.

Preventing sexual violence and misconduct on college campuses requires a sincere commitment to acknowledging that sexual violence and misconduct do indeed happen — that they have been happening for some time now, that they are happening right now. Nondisclosure and confidentiality agreements have historically helped to keep us, as university professionals, from acknowledging that. Yet in order to imagine better, fairer alternatives to NDAs, we must start by facing the facts concerning their ubiquity and prevalence on our own campuses.

Why Your Students Don’t Believe That Trump Is A Rapist

Note: this blog post was originally published on our career advice column on Inside Higher Ed. Dr. Jamie L. Small is an assistant professor of sociology at the University of Dayton. She studies the intersection of law, crime and gender, with a particular focus on adult male sexual victimization. She approaches sexual violence education and prevention from a sex-positive perspective.

Teaching About Sexuality, Violence and Power

Here is a fascinating paradox: in the abstract, most people believe that sexual violence is a bad thing. We largely agree that victim trauma is severe, that perpetrators should be punished and that our communities would be better places if we could somehow eliminate this evil. Yet, when we examine specific cases, that consensus unravels.

Adjudication is comparatively straightforward when the alleged perpetrator is a stranger. If the “bad guy” is an outsider, literal or figurative, we have no trouble bringing down the hammer and the full weight of the criminal justice system. But when the alleged perpetrator is an insider, or a person with whom we feel some sort of affiliation or reverence, it becomes difficult to label him as someone who would do such a thing. We start to make excuses and bend over backward to deny the plausibility of the victim’s experience.

I regularly observe such mental gymnastics with my undergraduate students. Last fall, I taught a sophomore-level course on sexual violence. At first, I was pleasantly surprised when the students demonstrated clear concern about sexual violence. Many of them were moved by the 2015 documentary The Hunting Ground, and they were curious about hot-topic issues like child sexual abuse and sex trafficking.

Starting with what I thought was a degree of fluency regarding sexual violence, we moved on to more subtle points about how we address it (or not) collectively. Why are victims reluctant to report sexual violence? How do race, ethnicity and social class matter for criminal prosecutions? Why do some offending men go unpunished, even as others are targeted disproportionately? My students seemed to get it.

But the 2016 presidential campaign season offered some unanticipated teachable moments. After the election, I asked the students how it felt to have a president-elect who, among other allegations, was in fact caught on tape making lewd, sexually aggressive remarks. It did not seem to bother them.

I was shocked. We had just spent three months learning about sexual violence. How could the sexual allegations against their new president not matter to them? But when the bogeyman is familiar, and when politics are involved, the waters become murky.

I pressed them further. Can we ever actually believe sexual allegations against a high-status man, especially if they come from a comparatively lower-status woman? One student brought up the Bill Cosby case and noted that it took dozens of victims before people really started to believe. With a straight face, I asked whether it takes 50 victims to come forward to counter the denials of a high-status man. They did not pick up on this horrific joke.

During recent sociological fieldwork, I interviewed 75 prosecutors and defense attorneys who work on sexual assault cases. I found that while they largely take sexual assault allegations seriously, they also tend to conflate sex offenders with lower-class men. They stereotype sex offenders as “creeps,” “mopes” and “hillbillies.” In essence, they focus on the man’s identity rather than his behavior. A defendant’s social status becomes a proxy for assessing the veracity of the victim’s allegations.

So when the accused looks like a “creep,” it is much easier to believe the victim, especially if her social identity aligns with dominant groups. But when the accused is a high-status man, we have our doubts. We start to do those mental gymnastics to explain away his alleged indiscretions. Now we are doing those mental gymnastics for the president.

I anticipate that teaching about sexual violence will become more complicated during the Trump presidency. We are likely to see a decrease in federal funding, which will affect college students’ baseline knowledge of the issue. Indeed, the symbolism of a sexually aggressive president may increase young people’s tolerance of similar behavior among their peers.

Action Steps

We must continue to engage college students in these difficult conversations about sexuality, violence and power. Regardless of how anticipated decreases in federal funding and prioritization of the issue play out in the coming years, we must maintain the grassroots momentum that has developed since the U.S. Department of Education issued the Dear Colleague letter in 2011. Here are some ideas.

My course is unusual because we devote the entire semester to sexual violence. But briefer units can be easily incorporated into a range of social science and humanities courses. Instructors might start with sensational issues like sex trafficking, which often captivate students’ attention but can then be used to generate critical analyses of power by focusing on dynamics of labor, immigration and transnational feminism. Frontline has several excellent documentaries on sexual violence that chart institutional responses: for instance, how sexual harassment cases among undocumented agricultural workers move through the Equal Employment Opportunity Commission. My students also enjoyed reading Jon Krakauer’s Missoula: Rape and the Justice System in a College Town.

Notably, I do not shy away from the students’ tough questions. (For example, they always want to know how consent is determined in cases where both parties are intoxicated.) In the sexual violence prevention field, there is a tendency toward teaching young people incontrovertible facts about the issue. It makes sense when trainers have one hour with a group to drill down to a couple of key anti-rape lessons. But if we want to provide young people with a comprehensive education about sexual violence, then we need to develop their critical-thinking skills. Complex social problems have no easy answers.

We also need to mobilize key networks of campus actors to achieve this comprehensive education. Student learning is not a linear process, and so they need multiple opportunities during their college years to engage with these ideas, both inside and outside the classroom. Those campus networks also need to be in place to ensure that lines of communication and mobilization are open, should there be funding cuts or programming shifts.

This pedagogical work is about much more than sexual violence prevention. It compels us to examine a range of structural inequalities, including those of gender, race, ethnicity, social class, nationality and sexuality. Ultimately, it is about guiding young people to be critical and engaged citizens.

These are important first steps among many acts of resistance.

Series: Sexual Violence In Academia

blog-series

From March to November 2017, we will be featuring a series of weekly blog posts on our Inside Higher Ed column (and republished here) about sexual violence in higher education.  We received many submissions to our call for blog posts on the topic, ranging from personal experiences to teaching about and doing research on sexual violence, from critiques of how universities facilitate sexual violence to recommendations for structural and cultural changes on campuses.  We are especially pleased to note that this series is intersectional to its core, offering narratives that reflect on sexual violence as a manifestation not just of sexism, but also racism, cissexism, heterosexism, ableism, and fatphobia.  Through this series, we aim to amplify the voices of survivors of sexual violence that occurs in academic contexts, to aggravate the academic status quo that facilitates sexual violence, and to advocate for meaningful change in classrooms, research, departments, and at conferences.

We will continue to log new blog posts here as the series proceeds in case you are unable to keep up, and so that you can refer back to the entire series in the future.

Teaching On/And Sexual Violence

Failures of Title IX Policy and Programming

You may also be interested in our past blog posts on or related to sexual violence in academia:

An Introduction To Our Series On Sexual Violence In Academia

Source: UMBC’s The Retriever Weekly, Volume 39, Issue 27.

Source: UMBC’s The Retriever Weekly, Volume 39, Issue 27.

Note: this blog post was originally published on our career advice column on Inside Higher Ed.

Amplifying the Voices of Survivors

The photo above was taken during a Take Back the Night march at my alma mater, the University of Maryland Baltimore County, in March 2005. It was taken by student, Matt Stockslager, and appeared in the university’s student newspaper, The Retriever Weekly. You can see me on the left, sporting a funky blue button-down Southpole shirt, dark blue jeans and Timberland boots, holding a sign that is hard to read and that my memory fails to recall.

In those days, I double majored in sociology and psychology while pursuing a certificate in women’s studies (now gender studies). My feminist and queer consciousness were just beginning to grow inside the classroom as I was exposed to critical writings on gender, sexuality, feminism, queer theory, race and intersectionality. And my critical consciousness was budding outside the classroom in this and other forms of feminist activism on campus, as evidenced by organizing for the creation of an LGBTQ campus resource center and hosting events to foster dialogue about diversity and inclusion.

I fondly remember marching alongside other students, faculty and staff to demand the end of sexual violence on our campus and in the local community. With slight embarrassment, I also recall being asked to share the megaphone that I must have been hogging during the march. Selfishly, I felt good about knowing that a booming, somewhat masculine voice shouting to end rape was significant and would capture others’ attention. Then, as now, I felt that white heterosexual cis women’s faces were those that typically represented anti-rape advocacy, perhaps to the detriment of the broader movement — women of color, trans women and queer women may hesitate to get involved where they do not see themselves reflected, and cis and trans men may struggle to find a place in the movement. So I shouted with pride, “Two, four, six, eight!” — or something along those lines — until I was politely asked to hand the megaphone off to someone else.

I was a bit annoyed at the time, but I understood. And in hindsight, I realize how problematic my behavior was. Sure, I could make a stink about what seemed to be the silencing of my voice — a voice that very well could be one of a survivor. (And it may be? I am not entirely sure.) Or I could emphasize the points that I just made above, about the power of representing cis and trans men in sexual violence advocacy, about ensuring that the cause is not seen simply as one for white heterosexual cisgender women.

But I believe it was just as important, if not more so, that I not steal an opportunity to hear the voices of actual survivors, especially those of women survivors. While I was proud of my participation, and recall it fondly today, that march was never meant to be about me (no matter my identities) — it was about a movement to end a crisis that affects too many people.

Amplify Their Voices

Over the past year, the informal mission and potential power for change of this blog, “Conditionally Accepted,” has become clearer to me. I have not yet said this publicly, and this is currently not much more than a half-baked idea, so please don’t quote me on this. But I see this blog’s mission as the following:

  1. advocate for justice in academe,
  2. amplify the voices of marginalized scholars and
  3. aggravate the status quo in the academy.

The appealing alliteration aside, I think these three A’s — advocate, amplify and aggravate — effectively encompass what we have been doing on this blog since its inception in 2013 (even before it became an Inside Higher Ed career advice column in 2016), as well as where we will likely go in the future.

Over a decade after the embarrassing megaphone incident in 2005, I now value the opportunity (and, I would even say responsibility) to amplify others’ voices. In gaining access to the megaphone, I had an opportunity to amplify that I did not take. Rather than selfishly projecting my own voice, I could have used it to tell the stories of those who could not speak or, more importantly, handed the megaphone off to survivors who could speak. I could have used my voice (without the megaphone) to echo what a survivor said with the megaphone.

Today, I have successfully established an online platform that features marginalized scholars’ voices and stories. Here, each of us can write in the first person, claiming our truth and our identities, our value and our experiences. I have occasionally opened up about my own experiences with sexual violence, particularly the difficulties inherent in teaching on the subject, I have written about my observations of academic organizations and institutions’ mishandling of sexual violence cases, and I have attempted to draw attention to other activists’ fights against sexual violence. But all of what I do as a well-intentioned advocate is secondary in importance to giving space to survivors to tell their own story, to use their own voices to speak for themselves.

It is more important than ever that we work to make space for survivors to tell their stories. In general, a silence surrounds the subject, with ignorance and complicity keeping bystanders quiet, and victim blaming and slut shaming keeping survivors’ mouths closed.

And even where there is dialogue is typically part of the problem, as well. Conversations about sexual violence — a hate crime, a tool of oppression, a social problem — are too often reduced to speculations about responsibility, intent and the veracity of survivors’ reports. The media qualify reports of sexual violence with the word “allegedly,” which veils the undermining of survivors’ voices with concerns about legal considerations. In some places, “devil’s advocates” — clueless, conservative, white, heterosexual cis men — are given more room to weigh in on something they have probably never experienced and on which they lack expertise.

Apparently, we do not want to hear survivors, we do not want to believe them, we do not want to recognize them as credible sources on their own experiences. So they have to find their own spaces to share their stories. (See also this Washington Post series.)

So in the spirit of amplifying the voices of the marginalized, “Conditionally Accepted” will feature guest blog posts about sexual violence over the next six months. Yes, we are devoting half the year to this oh-so-important topic, though we know six months is hardly enough. Several guest bloggers from different career stages and academic and social backgrounds contributed to our call for blog posts on rape, sexual assault, sexual harassment, stalking and intimate partner violence in higher education. Some people reflect on a personal experience, some offer teaching and research tips, and others offer advice for effectively supporting survivors and ending campus sexual violence.

This series of blog posts will certainly not solve all the issues, but it is at least one way to amplify the voices of survivors — and, to be certain, that is an important first step.