Otterbein University Scraps Nondisclosure Agreements for Sexual Assault Cases

By May 15, 2013

Thanks to two student journalists at Otterbein University, students involved in sexual assault cases will no longer be required to agree not to speak about their cases. Chelsea Coleman and Katie Taggart wrote for Otterbein360.com on May 7 to alert the Ohio school’s community to the startling fact that Student Affairs administrators were requiring parties to sexual assault cases to sign gag orders.  

As Coleman and Taggart aptly noted in their article, the forms—which stated that "Privacy must be maintained and the matter should not be discussed"—violate federal law. The Clery Act is typically cited for its requirement that colleges and universities that receive federal funding collect and publish data about crimes that occur on or near campus, including "sex offenses, forcible or nonforcible." But the Act also states:

[B]oth the accuser and the accused shall be informed of the outcome of any campus disciplinary proceeding brought alleging a sexual assault.

Coleman and Taggard explain:

The U.S. Department of Education’s position on the matter is "an institution would be in violation of the Clery Act if a student was required to sign the nondisclosure agreement as a condition of receiving information to which he/she is unconditionally entitled to receive."

In addition to violating federal law, gag orders generally run contrary to principles of free speech. FIRE has criticized colleges and universities in the past for attempting to keep students from discussing their cases. Recently, for example, FIRE intervened when DePaul University punished a student for naming the vandals who destroyed his group’s display; we also commented when the University of North Carolina at Chapel Hill charged student Landen Gambill for speaking out about her sexual assault case. 

Robert Gatti, Otterbein’s vice president for student affairs, said that the form item was meant to protect the parties involved and was only "an advisory." "Once we were informed by the students that that was perceived as signing a confidentiality statement," he said, "we took it out immediately." That said, it is unclear how administrators would interpret the requirement as anything but a nondisclosure or confidentiality agreement, given its plain language. Moving forward, Gatti told The Columbus Dispatch that the university "will be seeking legal counsel to better understand the rights of our students and the institution."

The Student Affairs’ form previously included information about students’ rights to file criminal charges and receive counseling, as well as information about the investigative process. Otterbein will continue to distribute this information in brochures. Gatti further clarified the university’s position with respect to sexual assault cases: "We support open conversation and actively encouraging students to seek counsel from campus or off-campus resources." This is a step in the right direction for Otterbein. 

FIRE applauds Coleman and Taggart for educating their community and their campus administrators on this issue. All universities should make every effort to ensure that, in the process of trying to protect their students, they are not infringing upon their rights.