Of this, there can be little doubt:
“When someone in the psychotherapist community gets wind of this, they’ll go off,” Lake said.
How dare a judge require the notes of a therapist for the female “victim” to be disclosed in a federal suit by the accused male student? Outrageous! Except the therapist and Syracuse University created its own problem.
Syracuse itself created the risk of having to disclose counseling records by combining the “therapeutic role of counselors” with “the procedural role of advisors” in its counseling center’s Sexual and Relationship Violence Response Team, or SRVRT, wrote Michael Thad Allen, the accused student’s attorney, in a February brief to Baxter.
The problem isn’t that NDNY Magistrate Judge Andrew Baxter cares nothing for therapist/patient confidentiality, but that the scope of confidentiality ends when the relationship changes from therapist to Title IX advocate.
This turn of events suggests the therapist, Tekhara Watson, “recruited” RP to file a Title IX complaint with the university’s Office of Equal Opportunity, Inclusion, and Resolution Services, where it handles violations of Title IX, Allen wrote to the court. The question now is whether Syracuse should be required to provide Watson’s communications with RP as evidence, given Watson’s role as both a therapist for mental health treatment and an adviser to RP on her reporting options.
The accuser initially complained to police that her third sexual encounter with the accused student was nonconsensual, apparently after two earlier consensual encounters. She then withdrew her police complaint and sought therapy from Syracuse for her trauma.
The complainant, a female student called “RP” in court records, initiated an investigation of the alleged rape with the Syracuse Police Department but later withdrew it, according to Doe’s lawsuit. Two months after, Doe said Syracuse began a Title IX investigation into the two students’ third sexual encounter, which he claims was entirely consensual, after RP sought support from a licensed therapist on the SRVRT, which provides counseling to students who have experienced sexual or relationship violence.
Watson, her therapist, apparently wasn’t satisfied providing mental health support, and used her relationship to push RP to file a Title IX complaint. Mag. Judge Baxter reviewed the notes and ordered disclosure.
Baxter, who already reviewed Watson’s records, also said the court had “carefully and stringently redacted” some sections, so that only “advice that related to reporting options and procedures” through Title IX is disclosed.
“The more extensive portions of the records that constitute therapy or treatment records shall not be disclosed to the parties,” he wrote in the decision.
This argument in response is that this violates New York’s Mental Hygiene Law § 33.13, which protects the confidentiality of therapeutic records, and will inhibit “survivors” from seeking therapy.
Sarah Nesbitt, a policy and advocacy organizer for Know Your IX, . . . wrote in an email that “providing reporting options in response to a client’s disclosure of violence fits comfortably within the scope of counselors’ professional ethics.”
“The possibility that a survivor’s confidential mental health records could be exposed in the future threatens to massively chill help-seeking,” Nesbitt said. “We already know that most survivors never report their experiences to authorities because of a desire to keep that information private. If seeking mental health support carried the same risk of exposure, survivors would almost certainly react the same way and choose not to seek those services.”
There are two questions as to whether disclosure in this instance is appropriate, neither of which are addressed by the “fits comfortably” rhetoric. If Watson did nothing more than answer a question as to what college avenues were available for a student who claimed to be a victim of sexual misconduct, then that would arguably implicate no advisory or manipulative capacity on the part of the therapist, and wouldn’t give rise to revelation of confidential information.
But if a therapist pushed her patient to take action, perhaps even framing her treatment for the purpose of acting upon it in order to vindicate the therapist’s view of what her patient should do rather than put the patient’s mental health concerns first, she’s abandoned her role as therapist and become a Title IX activist. There is no confidentiality for Title IX activists.
The magistrate’s decision to go into a therapist’s confidential client records is “very unusual,” unless there’s a threat of imminent danger, said Peter Lake, director of the Stetson center for higher education law. Courts have been reluctant to reveal such records, and when they do, there are health and safety risks involved, he said.
This is certainly true, and disclosure of a therapists confidential records should be “very unusual.” But that begs the question of whether the therapist limited her role to therapy. Much as lawyers can’t advise clients how to commit crimes, even though we may have some ideas about how to get away with murder, without subjecting our attorney/client confidentiality to disclosure under the crime/fraud exception, neither can mental health providers.
The issue is not whether therapists for women claiming to be victims of sexual misconduct should be entitled to therapeutic confidentiality, but whether a therapist, exceeding the scope of her treatment, can extend confidentiality to whatever she says or does, without regard to whether it “fits comfortably” in the eyes of activists. As for Mag. Judge Baxter’s decision, he did what he could and should, by reviewing the notes in camera, redacting whatever falls within confidentiality and ordering disclosure only of that portion beyond the scope.
Will this outrage the psychotherapist community as well as the Title IX “survivor” activist community? Of course, but the lesson isn’t that their professional confidentiality is at risk, but merely their ability to remain within the scope of their profession. If they provide therapy, they will enjoy confidentiality. If they want to be activists, then they’ve made their choice.