I n the wake of several wood.
- by Michael Popke
- July 2010
Ugly details have emerged regarding an alleged sexual assault at the University of Oregon and the school’s handling of the lawsuit that followed.
The story begins back in March 2014. A female student at Oregon claimed she was raped by three UO basketball players: Brandon Austin, Damyean Dotson and Dominic Artis. The school allegedly knew of these allegations but took no action against the players until weeks later, after the team’s season ended.
The school eventually found all three players responsible for sexual misconduct and banned them from campus for up to 10 years. The district attorney declined to prosecute the case, but said, “While there is no doubt the incidents occurred, the conflicting statements and actions by the victim make this case unprovable as a criminal case.” According to The Big Lead, the victim did not report the incident to police until five days after the incident.
In January, the alleged victim sued the school and head basketball coach Dana Altman, contending the school knowingly admitted a transfer student with a previous record of sexual assault.
Austin transferred to Oregon from Providence College in Rhode Island after he had been suspended by Providence following a sexual assault accusation.
"UO delayed taking any action on the sexual assaults for over two months while it prioritized winning basketball games over the health, safety and welfare of its students, including plaintiff," the lawsuit says.
Then came news a few weeks ago that the university and Altman were filing a counterclaim against the alleged victim. The countersuit sought to have the original "frivolous, unreasonable" complaint dismissed and recover legal fees from either the alleged victim or her attorneys.
That countersuit has since been dismissed after public outcry. But it's not likely criticism of Oregon's handling of the case will end there.
It turns out the Oregon administration accessed the alleged rape survivor’s therapy records from the university's counseling center and handed them over to its general counsel’s office to help them defend against her lawsuit. In short, UO administrators were using the alleged victim's own post-rape therapy records against her.
As The Oregonian reported in February:
Earlier this month, an employee in the UO Counseling and Testing Center notified state officials that she believed UO administrators had improperly looked at an unnamed student’s clinical files to help prepare for a lawsuit they believed the student was close to filing. A UO spokesman later told the Register-Guard that the lawsuit in question was indeed the Jane Doe civil complaint.
The employee also wrote she was told to provide the student with “nonstandard care” because of the pending suit.
That might seem impossible, or at least illegal, in terms of patient confidentiality practices, but it is not. In a column written for The Chronicle of Higher Education titled “Raped on Campus? Don’t Trust Your College to Do the Right Thing,” columnist Katie Rose Guest Pyral explained the loophole:
The university came firing back, arguing that because the rape survivor had asserted a legal claim of emotional distress, Oregon was entitled under, of all things, the Family Educational Rights and Privacy Act to use her medical records to defend against her suit.
When I read the university’s defense of its actions, I had to laugh. Medical privacy typically can be breached in a lawsuit setting only when a patient sues a health-care provider for malpractice. In those instances, the medical records become material evidence to determine whether the provider had breached medical standards of care.
In the lawsuit, it appears that the rape survivor has not asserted any claim of malpractice against her therapist. Indeed, her therapist—and the entire department in which the therapist works—is standing up for the rights of the rape survivor.
How in the world could the university claim that it, as a party outside of this therapeutic relationship between the client (the rape survivor) and the therapist, have a right to access her medical records for litigation defense? That goes against everything I ever learned studying law, teaching law, and practicing in the malpractice courtroom.
However, after researching Oregon’s argument, I stopped laughing. Because it appears that the university was right. By an education-law loophole, it does have a right to her records under Ferpa. And that means everything has to change.
Guest Pyral, a former professor of law at the University of North Carolina, further wrote:
The university is right, under the law. It can access the therapy records of a rape survivor in order to defend itself against a lawsuit that has nothing to do with therapy malpractice. That is the ugly truth of this case.
She then suggests that students avoid their college counseling center and seek therapy elsewhere, and that school officials should advise students to do the same.
As we’ve learned over the course of the many sexual assault stories we’ve covered, these incidents are extremely complex. This particular one undoubtedly casts the University of Oregon in an ugly light. But as Guest Pyral points out, perhaps it’s the system that needs to change.
A system that allows a school to use a patient’s medical records against him or her in a lawsuit will only discourage others from seeking help. According to USA Today, nearly 10 percent of college students receive mental health counseling on campus. Counselors say the demand for their services is reaching record highs, and the illnesses they are treating are serious. No one should be discouraged from seeking the care that can help them live a better life, or in some cases, save it altogether.