Protecting College Students Who Report Sexual Assault

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Protecting College Students Who Report Sexual Assault

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Last week the Illinois Appellate Court held that college students in Illinois may report crimes of sexual assault to campus security without risking a defamation lawsuit. The decision is a sweeping victory for college students who are victims of sexual violence, and makes Illinois only the second state to recognize an absolute privilege for reports of sexual assault to campus security.

This pro bono case came to Schiff Hardin through the Chicago Alliance Against Sexual Exploitation (CAASE). Paula Ketcham and Shawna Boothe represented the defendant, E.W., who had been sexually assaulted and stalked by a fellow School of the Art Institute of Chicago (SAIC) student. She reported the assault and stalking to the SAIC’s campus security, who escorted her to the police station where she made a police report. Her complaint led to two legal actions: SAIC conducted a disciplinary proceeding, found E.W.’s report to be credible, and expelled the accused. And when the stalking persisted, CAASE represented E.W. in filing a petition for order of protection in the Circuit Court of Cook County, Illinois. After an evidentiary hearing, the court granted E.W. a two-year plenary Stalking No Contact Order.

Schiff Hardin’s representation of E.W. began after these proceedings, when E.W.’s attacker sued her for defamation in the Circuit Court of Cook County, based largely on the statements she had made about him to campus security.

Paula and Shawna moved to dismiss the case, with prejudice, on several grounds, including that the absolute privilege afforded to crime reports to law enforcement should also apply to reports to campus security. The motion raised a question of first impression: While Illinois law provides that a report of a crime to law enforcement is absolutely privileged, no case had extended or interpreted the law to also protect reports of crimes to campus security.

The circuit court denied the motion but agreed that the absolute privilege issue was a matter of first impression in Illinois, and so agreed to certify the following question for interlocutory appeal: “Under Illinois law, does the absolute privilege for reporting crimes to law enforcement apply to a college student’s report of on-campus sexual violence to campus security?”

After accepting the interlocutory appeal, the First District answered the certified question in the affirmative.[1] In a strongly worded 3-0 decision issued on June 1, 2016, the court wrote, “We find that the absolute privilege applies to statements that are made to campus security for the purpose of initiating legal proceedings.” The court agreed that “a contrary policy would surely have a chilling effect of deterring victims from reporting a crime of sexual violence for fear that retaliatory legal action may be taken against them. Moreover, it is manifestly counterintuitive to penalize a victim for reporting an alleged incident of on-campus sexual violence to her security department.”  It noted further that “we cannot fathom any public policy that would be served by adopting plaintiff’s argument that he ought to be able to sue these alleged crime victims merely because they opted to contact campus security.” It remanded the case to the trial court for a ruling consistent with its holding.

The First District’s ruling means that the accused’s defamation claims based on E.W.’s initial report to campus security will be dismissed by the circuit court. However, the accused also argued that E.W. defamed him by restating her accusations to school officials when they investigated them. During oral argument, Shawna argued that these statements too should be absolutely privileged. While the court determined this issue was outside the scope of the certified question, it offered favorable guidance: “We do note that generally once a privileged statement is made to law enforcement any subsequent restatements made in furtherance of an investigation fall under this privilege.”

Paula and Shawna plan to renew their motion to dismiss in the trial court based on the First District’s decision.

This was the second time the firm teamed up with CAASE to successfully defend a defamation suit brought against a woman who reported a sexual assault.

 

[1] See Razavi v. Walkuski et al., 2016 IL App (1st) 151435.