University Violates Rape Victim’s Medical Privacy – Legally

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SORTA TRANSCRIPT:
There’s been a lot of talk lately about how college campuses in the US deal with rape reports, and a lot of criticism over some colleges choosing to cover up allegations of sexual assault or letting offenders get away with a slap on the wrist.

In fact, the Department of Education reports that 97 colleges are currently under federal investigation for mishandling sexual assaults on campus.

The reason why I’m talking about it right now, though, is that I’ve just learned about a disturbing loophole in the law that actually allows colleges to violate students’ medical privacy, and that loophole was recently used to punish a rape victim in court.

Katie Rose Guest Pryal recently wrote up her findings for The Chronicle of Higher Education. She found out that a woman was raped by three men on the University of Oregon campus, and the woman reported her rape to the University and went for campus therapy sessions to help her deal with the traumatic aftermath of the rape. The University eventually kicked the rapists out of school, but not before their basketball season had concluded.

The woman sued the University for mishandling the case, and to strengthen its defense, the University demanded that her therapists release her confidential records to them. The therapists refused and were threatened with firing, and so eventually they turned over the records, which were promptly given to the University’s legal team.

Normally, this would be a clear-cut illegal move. Patients’ medical records are protected by the Health Insurance Portability and Accountability Act, which is a federal law that says no one can access your medical records without your consent. Legally, your records can be turned into evidence if you sue a healthcare provider for medical malpractice, but that’s not what was happening in this case.

But what Pryal discovered is that the University actually did have the legal right to access the victim’s confidential records, due to the Family Educational Rights and Privacy Act, the federal law that protects students’ educational records. And as the law goes, if you access your healthcare through the University, then your medical records aren’t considered medical records – they’re educational records, and therefore not protected by HIPAA. And under Ferpa, the university can access those records without your consent under a wide variety of cases.

In other words, if you value your privacy, you shouldn’t use university-provided healthcare if you can help it. Especially if you’re seeking therapy, because that therapy session could be used against you in the future.

The problem of course is that many students in the US can’t help it. Their University health plan may be the only one they can afford, so they simply don’t have any other option. There are places that will provide therapy resources for low-income people, but it can be hard or sometimes impossible to find those resources depending upon where you live and how much money you have to spend.

As Pryal mentions in her article for the Chronicle, the only real solution here is for the Department of Education to fix the loophole. I won’t be holding my breath.