Sexual Assault Privacy Litigation

Confidentiality and Privacy of Victim-Survivors

Overview

The University of Kentucky is engaged in a lawsuit with the Office of the Attorney General and the Kentucky Kernel over a fundamentally important question – will UK be allowed to protect the confidentiality and privacy of victim-survivors who have been impacted by sexual assault and interpersonal violence? 

This issue is a national one. Universities and colleges across the country are wrestling with the tension that exists between laws designed to protect student privacy and laws that mandate a commitment to openness and transparency. 

As a public university – and Kentucky’s flagship, land-grant institution – both openness and protecting student privacy are deeply held values for us. When those values – and the laws that enshrine them – are in tension, it is appropriate and necessary to look to the courts for guidance and direction. 

That’s where we are today. At the same time, this issue has understandably generated a number of questions, concerns and media interest. With those interests and questions in mind, we have developed this site to provide the latest information about the legal issues involved as well as our efforts as an institution to safeguard the safety, privacy and confidentiality of students, particularly those who courageously come forward to report victimization. 

Above all else, that’s what is at stake here – the idea that we strongly believe in that only a student, a victim, should tell his or her story. No one else – not the media, not the university, not a friend or adversary – has that right. That’s what we are fighting in the court of law – and in the court of public opinion to protect.

 

The legal status of this case

There are two central issues, among many, involved in this case: 

--What does the university have to turn over relative to student records in a case like sexual assault or misconduct? 
--What does the university have to turn over to the Attorney General’s office as part of its due diligence in its role as the initial arbiter of open records requests in Kentucky? 

Legal briefs filed in Fayette Circuit Court by the university (see links above)

 

Commonly asked Questions and Answers about UK’s position 

How would the university respond to the allegation that it's trying to protect a faculty member who has been accused of sexual assault and harassment? The university aggressively investigates any claims or reports of sexual assault or harassment, regardless of the source and regardless of who is accused. The professor in question, as of the end of this month, is no longer employed at UK. He hasn’t been on this campus for several months. From the time the university was made aware of a formal complaint to resolution of this matter was less than eight months and involved a detailed examination and interviews with several people. The university acted swiftly and effectively to address this issue and that’s consistent with our approach to ensure the safety and belonging of everyone on our campus. Indeed, that is our top priority at UK. 

Specifically, the university has invested millions of dollars in the last few years on safety, including additional safety officers and counselors, as well as technology such as lights, campus cameras and emergency phones. Two years ago, we also became the first campus in the country, to our knowledge, to mandate participation among all students in a campus-wide climate survey that delves deeply into issues of security, safety, sexual assault and related issues. President Capilouto is funding this survey, each year, for five years so that we can develop not just a baseline of information, but a robust set of data that we can track over time to measure our progress and where gaps exist. In the first two years, more than 20,000 students participated each year. 

The Green Dot program, largely considered a national model for bystander training, was created at UK, and our Violence Intervention and Prevention Center (VIP) provides counseling and training across campus to assist victims and those who want to help. 

And how would releasing the information about the investigation hurt the alleged victims if any identifying information is redacted from the released documents?

When victim-survivors courageously come forward to report violence – in this case and in those that may follow – they do so under the assurance of confidentiality as mandated by federal law and supported strongly by University policy. Our University cannot – and should not – decide when it is appropriate to violate a victim-survivor’s privacy – and a victim-survivor’s trust - by providing information to the Office of the Attorney General, the Kernel, or any other entity. According to the Kentucky Supreme Court, only a judge can request review of such information and only then under extraordinary circumstances. That is why it is essential that this dispute be settled in a court of law. 

Finally, and importantly to your question about redaction, federal law explicitly prohibits the disclosure of victims’ names or materials that may lead to the identity of a victim. 

In addition to federal law, state law explicitly exempts personal privacy matters and preliminary materials.  Materials which our administrators consider before making a final decision are preliminary and exempt from disclosure.  

While the state Supreme Court has said that preliminary materials lose their preliminary status when they are incorporated into the final agency action, in this instance, none of the investigative materials were incorporated into a final action as represented by the settlement agreement. Therefore, the materials – and most importantly the identities of the victims – should not be disclosed.

 

President Capilouto’s messages and statements on this issue:

Statement on privacy and speech
Continuing conversation on safety

 

Resources: 

VIP
Counseling Center 
UK Police Department  
Title IX office