Ohio State accused of concealing rape details by legal blog
Published: Tuesday, December 4, 2012
Updated: Tuesday, December 4, 2012 23:12
Some Ohio State officials have been accused of violating federal disclosure acts in regards to several reported rapes in Park-Stradley Hall, however the university is standing its ground.
A Nov. 27 “FERPA Fact” blog post accused OSU authorities’ of incorrectly using FERPA, HIPAA, and the Clery Act in handling the sex crimes cases.
“HIPAA never applies to anything law enforcement or student life ever does, ever, at all,” the blog post said. The post went on to say that OSU doesn’t “intend to comply with open records law.”
FERPA stands for the Family Educational Rights and Privacy Act, which “prohibits a school from disclosing personally identifiable information from students’ education records without the consent of a parent or eligible student, unless an exception to FERPA’s general consent rule applies,” according to the U.S. Department of Education.
HIPAA is the Health Insurance Portability and Accountability Act of 1996. Its job is to protect “the privacy of individually identifiable health information,” according to the U.S. Department of Health and Human Services website.
The Clery Act was designed to make college campus crime information readily available. It was created in the name of Jeanne Clery, a student at Lehigh University who was raped and murdered in 1986 after crime warnings were not sent out after a series of thefts on campus. It is speculated that she would have been more cautious if she had known about the thefts, which in turn would have prevented her unrelated death.
Attorney advocate for the Student Press Law Center Adam Goldstein accused OSU of violating the timely crime warnings portion of the Clery Act in his blog post.
“Each institution (U.S. college or university) … shall make timely reports to the campus community on crimes considered to be a threat to other students and employees … Such reports shall be provided to students and employees in a manner that is timely and that will aid in the prevention of similar occurrences,” according to the act.
“Of the things that we’ve put on (the blog), that was certainly one of the more disturbing ones,” Goldstein said. “What makes it worse is this is trying to cover up rape, and that’s just different than trying to cover up ethics violations that athletes might participate in.”
Goldstein was referring to ESPN suing OSU in July 2011 for “wrongfully (citing FERPA) as a reason for withholding various documents” during the “Tattoo-Gate” scandal where OSU football players were found guilty of selling memorabilia to get discounted tattoos, among other things.
University Police Deputy Chief Richard Morman and Denton each told The Lantern in different interviews that campus police was not sending out timely crime warnings because the sex crimes did not present a continued threat to the campus community.
“In these cases when you have a known offender and a known suspect and we are confident that action is or has been taken through the Student Conduct process, plus in respect to the privacy and sensitivity of this type of offense to the reporting party, the survivor (victim), we weigh all of those circumstances into the decision of whether to or not to issue a public safety notice,” Denton said.
Goldstein said under these circumstances, a report should have been issued.
“The question for the timely warning act isn’t, ‘Will telling students about the rapes stop them from being raped by this guy?’ it’s, ‘Will telling them about the rapes convince them to take extra steps that will stop them from being raped by someone else?’ And the answer to that is clearly yes,” Goldstein said.
David Cuillier, an assistant professor of journalism at the University of Arizona and a Society of Professional Journalists expert on public records, agreed that the Clery Act is being violated.
“Well they should be alerting everyone in the dorm … They’re really required by law to do so. So and if they fail to let everyone know what’s going on, they can be fined,” Cuillier said.
Cuillier also commented on the use of FERPA by University Police, who denied to give The Lantern information regarding on whether any disciplinary action had been taken against the suspects of any of the crimes.
In interviews for the Nov. 26 article about the third reported sex crime to happen this semester in Park-Stradley Hall, OSU Police Chief Paul Denton said “there’s some FERPA issues involved” with releasing that information.
“They can’t use FERPA to protect criminal things,” Cuillier said, although he added, “legally they don’t even have to return your phone calls.”
He said that citing HIPAA in that situation was “just silly.”
Denton said in an email that he does not believe any laws were violated by citing FERPA in this case.
“(I) cannot explain nor comment on any information you obtained from a legal blog about FERPA and CLERY interpretation. I follow the legal guidance of the OSU Office of Legal Affairs. I do not agree that there (h)as been ‘misuse’ in regard to the response or criminal investigation of these crimes,” Denton said.
Dave Isaacs, OSU spokesman for Student Life, said in interviews for the same article that he could not tell The Lantern about the judicial processes “because that’s all HIPAA protected.”
Isaacs was unavailable for comment Tuesday, but Student Life spokeswoman Kellie Uhrig said in an email that “if Dave (Isaacs) referenced HIPAA, he simply mistakenly used the wrong acronym, and meant to reference FERPA. Due to FERPA regulations, the university is not at liberty to comment on any individual student conduct-related issue.”