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    June 2019

    Campus Sexual Misconduct and Student Social Media Posts

    According to the Pew Research Center, from Oct. 15, 2017 through Sept. 30, 2018, the #MeToo hashtag was used on Twitter over 19 million times, or an average of about 55,300 times per day—which does not include allegations made on Facebook, Instagram or other social media platforms. In the higher education context, some students who are dissatisfied with an institution’s handling of campus sexual misconduct allegations take to social media to vent their frustration. But these posts can backfire, resulting in sanctions for violating institutional policy or defamation lawsuits. There may be little campus officials can do after problematic statements are published online, so United Educators (UE) recommends they focus on reviewing internal policies and educating students in advance about the risks of discussing sexual misconduct allegations on social media.


    Policy Violations

    Accusers who file complaints of campus sexual misconduct and are disappointed with the outcome (e.g., the accused student is found not responsible or is found responsible for a lesser offense) may turn to social media and name their alleged perpetrators. In some cases, accusers identify perpetrators even when no complaint was filed. Such posts create a dilemma for campus administrators, who must balance accusers’ rights to discuss their experiences with accused students’ rights to privacy and to be free from harassment. Accusers’ posts may violate institutional policy, in particular the student conduct code.

    For example, in December 2017, a Middlebury College student, referencing #MeToo, posted on Facebook a list of “Men to Avoid” naming approximately 30 male students she asserted had committed rape or other sexual misconduct on campus. Facebook removed the post, but screenshots of it circulated widely. The student declined to identify other students who contributed names, which Middlebury considered to violate a rule that students cooperate as witnesses in investigations. The college ultimately gave her an “official discipline” letter for violating the Respect for Persons provision of its conduct policy (violating the privacy of the men she named) and obstructing a Title IX investigation (refusing to identify alleged victims).


    Defamation

    People accused of sexual misconduct on social media increasingly have responded by suing their accusers for defamation, which generally is a false statement of fact — not opinion — made to a third party that damages the reputation of the person about whom it is made. Written defamation, such as statements on social media, is known as libel. Certain types of statements, including that a person committed a crime or engaged in sexual misconduct, typically are automatically defamatory.

    Shortly after #MeToo gained steam, film director Brett Ratner filed a libel lawsuit against a woman who posted on Facebook that Ratner had raped her while she was drunk. He dismissed his lawsuit in fall 2018 after the accuser’s attorney released a statement implying her client’s memory of the encounter was “cloudy and unclear.” Similarly, a Kentucky bar owner filed a defamation lawsuit against two women who accused him of rape, one in a Facebook post that was widely shared. In summer 2018, a judge denied the women’s motion to dismiss the case against them.

    Comparable lawsuits are appearing in higher education. For example, Syracuse University found a male student responsible for sexually assaulting a female student at a 2017 party and expelled him. In June 2018 he sued the woman for defamation based on social media posts that he said falsely accused him of rape. The student claimed the woman’s posts, which linked to his Facebook and LinkedIn profiles, caused him to lose his summer job and threatened his status at his new college. Despite his expulsion, he did not sue Syracuse.

    The focus on an alleged victim’s social media posts distinguishes cases like the Syracuse matter from those in which students have sued accusers for defamation based on statements they made as part of a Title IX complaint process.  In many such lawsuits the accused student also sued the institution, claiming the procedure or the result, or both, was unfair. A notable example is the 2015 John Doe lawsuits against Brown University and Doe’s female accuser.


    UE Recommendations

    Review social media guidelines. Some institutions, such as Emerson College, include statements cautioning that people are personally responsible for content they publish on the web and noting that courts have held individuals liable for defamation and libel. If your guidelines do not include a similar warning, consider revisions.

    Evaluate the student conduct code. The code should be broad enough to encompass any student creating a hostile environment for another student through any means, including social media. Include examples of hypothetical posts that could constitute code violations, such as labelling a student a “rapist” if the student was found not responsible, or responsible for a less serious offense, through the institution’s process. The code should clearly explain the range of potential sanctions for violations.

    Enforce the code consistently, regardless of who violates it. Although institutions may hesitate to enforce their student conduct code against an alleged victim of sexual assault or harassment, they should be willing to do so when the circumstances justify it.

    Address social media issues during training. Incorporate problems related to social media use into student training on sexual misconduct. When discussing confidentiality in the disciplinary process, review social media guidelines, stress that the student conduct code applies to everyone, and explain the potential for defamation claims if parties make negative statements about each other on social media. Remind students of real-world examples, such as the Ratner lawsuit and the Middlebury matter.

    Advise parties to think carefully before posting information, including another party’s identity, on social media. Make this a regular practice in all sexual misconduct matters, preferably including the advice in written resources and suggestions for both parties. Provide links to the student conduct code and social media guidelines. Remind the parties that, if criminal charges are pending or possible, law enforcement, prosecutors and defense counsel alike can access their social media posts. After the fact, at least absent a policy violation, criticizing posts by an alleged victim may appear retaliatory, so consult counsel.

    Keep an open mind. Notwithstanding the importance of enforcing the conduct code when students’ social media posts cross a line, remain open to the possibility that posts make legitimate points about problems in your institution’s process. If so, be willing to address them.  For example, in spring 2018 two female students at Texas A&M University who had accused male athletes of sexual misconduct complained on Twitter and Facebook about the internal process and the leniency of sanctions. The posts went viral and prompted widespread anger. Several months later, the University announced significant changes to its Title IX procedures.


    Resources

    #MeToo in Higher Ed: Sexual Misconduct Allegations

    Prevention and Protection Podcast, "#MeToo; Student Social Media Disclosure of Sexual Harassment”

    UE's ProResponse benefit

    By Hillary Pettegrew, senior risk management counsel


    1 Comments

    • Avatar

      This blog is very concerning for many reasons. Here are three.

      First, this blog does not address issue of free speech for public institutions.

      Second, this blog incorrectly assumes that the determination of whether a policy was violated is always a determination as to the truth of the underlying facts. To the contrary, it is often the case that there is a "no policy violation" determination due to insufficient evidence to meet the burden of proof. This is distinct from a determination as to the truth of the underlying allegations. Thus, the advice to "[i]nclude examples of hypothetical posts that could constitute code violations, such as labeling a student a 'rapist' if the student was found not responsible" is particularly problematic.

      Third, this blog encourages universities to wade into the arena of controlling private student speech, an impossible and ill-advised errand. Rather than reduce institutional risk, such an initiative is more likely to increase risk as plaintiff's lawyers will argue that the university has assumed a duty.

      There may be useful nuggets in this blog, but proceed with caution.

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