6. Confidentiality

The NSHE recognizes that confidentiality is important. However, in some limited circumstances confidentiality cannot be guaranteed. The administrators, faculty or staff responsible for implementing this policy will respect the privacy of individuals reporting or accused of discrimination or sexual harassment to the extent reasonably possible and will maintain confidentiality to the extent possible. Examples of situations where confidentiality cannot be maintained include, but are not limited to, necessary disclosures during an investigation, circumstances where the NSHE is required by law to disclose information (such as in response to legal process), or when an individual is in harm’s way.
a. Confidentiality in Complaints Involving Sexual Violence. In complaints involving sexual violence the following applies:

1. Varying Confidentiality Obligations. Complainants who are victims of sexual violence are encouraged to talk to somebody about what happened in order for them to receive the support they need, and so the institution can respond appropriately. Different individuals at the institution have different abilities to maintain a complainant’s confidentiality:

• Some are required to maintain near complete confidentiality; talking to them is sometimes called a “privileged communication.”
• Other employees may talk to a complainant in confidence, and generally only report to the institution that an incident occurred without revealing any personally identifying information. Disclosures to these employees will not trigger investigation into an incident against the complainant’s wishes, except in certain circumstances discussed below.
• Complainants are encouraged to talk to one of the individuals identified in this Section 6.
• Some employees are required to report all the details of an incident (including the identities of both the complainant and all others involved) to the Title IX coordinator. A report to these employees (called “responsible employees”) constitutes a report to the institution – and generally obligates the institution to investigate the incident and take appropriate steps to address the situation.

   This policy is intended to make employees, students and others aware of the various reporting and confidential disclosure options available to them so they can make informed choices about where to turn should they want to report an act of sexual violence. The institution encourages such complainants to talk to someone identified in one or more of these groups.

2. Privileged and Confidential Communications. A complainant or respondent may wish to consult with professional counselors, pastoral counselors or others. Certain professionals are not required to report incidents unless they have been granted permission:

• Professional Counselors. Professional, licensed counselors who provide mental-health counseling to members of the institution community (and including those who act in that role under the supervision of a licensed counselor) are not required to report any information about an incident to the Title IX coordinator without a complainant’s permission.
• Pastoral Counselors. A complainant and/or a respondent may choose to consult with a non-institution pastoral counselor and is encouraged to discuss confidentiality with that individual.
• Under Nevada law other professionals who may maintain confidentiality include lawyers, psychologists, doctors, social workers, and victim advocates employed by non-profit entities.

3. Complainant Options

    A complainant who reports an act of sexual violence to a professional listed above in Section 6.a.2 must understand that, if they want to maintain confidentiality, the institution will be unable to conduct a full investigation into the incident and will likely be unable to pursue disciplinary action against the respondent.

   A complainant who at first requests confidentiality may later decide to file a complaint with the institution or report the incident to local law enforcement, and thus have the incident fully investigated. A complainant shall be assisted in reporting the incident to local law enforcement if the complainant requests such assistance.

   Other Reporting Obligations: While professional counselors may maintain a complainant’s confidentiality vis-à-vis the institution, they may have reporting or other obligations under state law. For example, there may be an obligation to report child abuse, an immediate threat of harm to self or others, or to report in the case of hospitalization for mental illness.

   NSHE Employee Assistance Program providers would follow these guidelines, as would professionals in NSHE institution student counseling and psychological services areas, and professionals in community health clinics that reside on or are associated with NSHE institutions.

b. Reporting to "Responsible Employees"

1. “Responsible Employees” Defined and Duties. A “responsible employee” is an employee who has the duty to report incidents of sexual violence or other sexual misconduct, or who a complainant could reasonably believe has this authority or duty. When a complainant reports an incident of sexual violence to a responsible employee, the complainant has the right to expect the institution to take prompt and appropriate steps to investigate what happened and to resolve the matter promptly and equitably.

   A responsible employee must report to the Title IX coordinator all relevant details about the alleged sexual violence shared by the complainant and that the institution will need to determine what happened – including the name(s) of the complainant, respondent(s) and any witnesses, and any other relevant facts, including the date, time and specific location of the alleged incident. To the extent possible, information reported to a responsible employee will be shared only with people responsible for handling the institution’s response to the report. A responsible employee should not share information with law enforcement without the complainant’s consent or unless the complainant has also reported the incident to law enforcement.

   Institutions must identify in their policies those employees who are designated as “responsible employees” and may also designate those employees who are not considered “responsible employees.” Responsible employees may include but are not limited to the following employees (or categories of employees):

• Title IX Coordinator
• Anyone in a supervisory, managerial, administrative or executive role or positions, such as a provost, vice provost, vice president, dean, department chair, director of a unit, resident director, resident assistant, supervisor, student advocate or faculty advisors to student clubs.
  
  Before a complainant reveals any information to a responsible employee, the employee will inform the complainant of the employee’s reporting obligations. If the complainant wants to maintain confidentiality, the employee will direct the complainant to confidential resources.
  
  If the complainant wants to tell the responsible employee what happened but also wants to maintain confidentiality, the employee will inform the complainant that the institution will consider the request, but cannot guarantee that the institution will honor it. In reporting the details of the incident to the Title IX coordinator, the responsible employee will also inform the coordinator of the complainant’s request for confidentiality.
  
  Responsible employees will not pressure a complainant regarding the extent of the report the complainant wants to make. Responsible employees will not pressure a complainant to request confidentiality, but will honor and support the complainant’s wishes, including for the institution to fully investigate an incident. By the same token, responsible employees will not pressure a complainant to make a full report if the complainant is not ready to make such a report.

2. Requesting Confidentiality From the Institution: How the Institution Will Weigh the Request and Respond.

• Request for Confidentiality. If a complainant discloses an incident to a responsible employee but wishes to maintain confidentiality or requests that no investigation into a particular incident be conducted or disciplinary action taken, the institution will weigh that request against the institution’s obligation to provide a safe, non-discriminatory environment for everyone, including the complainant. If the Institution honors the request for confidentiality, a complainant will be informed that the institution’s ability to investigate the incident and pursue disciplinary action against the respondent may be limited.
  
  There are times when, in order to provide a safe, nondiscriminatory environment for all, the institution may not be able to honor a complainant’s request for confidentiality. The institution shall designate an individual to evaluate requests for confidentiality made by a complainant.
• Factors to Be Considered. When weighing a complainant’s request for confidentiality or a complainant’s request that no investigation or discipline be pursued, the institution will consider a range of factors, including the following:
• The increased risk that the identified respondent will commit additional acts of sexual or other violence, such as: whether there have been other sexual violence complaints about the same respondent;
  • Whether the reported sexual violence was committed with a weapon;
  • Whether the complainant is a minor; 
  • Whether the institution possesses other means to obtain relevant evidence of the reported sexual violence (e.g., security cameras or personnel, physical evidence);
• Whether the complainant’s information reveals a pattern of behavior (e.g., illicit use of drugs, alcohol, coercion, intimidation) at a given location or by a particular group;
• Other factors determined by the institution that indicate the respondent may repeat the behavior or that others may be at risk. Based on one or more of these factors, the institution may decide to investigate and, if appropriate, pursue disciplinary action even though the complainant requested confidentiality or requested that no investigation or disciplinary action be undertaken. If none of these factors is present, the institution will work to respect the complainant’s request for confidentiality.

c. Actions After Decision to Disclose. If the institution decides that a complainant’s confidentiality cannot be maintained, the institution will inform the complainant in writing or via email prior to starting an investigation and the institution will, to the extent possible, only share information with people responsible for handling the institution’s response.

    The institution will inform the respondent that retaliation against the complainant is prohibited and will take ongoing steps to protect the complainant from retaliation or harm and work with the complainant to create a safety plan. Retaliation against the complainant, whether by the respondent, or employees, students or others, will not be tolerated. The institution will also:

1. assist the complainant in accessing other available advocacy, academic support, counseling, disability, health or mental health services, and legal assistance both on and off institution property; 
2. provide other security and support, which could include issuing a no contact order, helping arrange a change of living or working arrangements or course schedules (including for the respondent pending the outcome of an investigation) or adjustments for assignments or tests; 
3. inform the complainant of the right to report a crime to the institution and/or local law enforcement and to have a criminal investigation proceed simultaneously; and 
4. provide the complainant with assistance if the complainant wishes to report a crime.

   The institution will not require a complainant or a respondent to participate in any investigation or disciplinary proceeding.

   Because the institution is under a continuing obligation to address the issue of sexual violence institution-wide, reports of sexual violence (including nonidentifying reports) will also prompt the institution to consider broader remedial action – such as increased monitoring, supervision or security at locations where the reported sexual violence occurred; increasing education and prevention efforts, including to targeted population groups; conducting climate assessments/ complainant surveys; and/or revisiting its policies and practices.

    Issuance of Timely Warning: If the institution determines that the respondent poses a serious and immediate threat to the institution community, police or security services may be called upon to issue a timely warning to the community. Any such warning will not include any information that identifies the complainant.

d. Reports to Other NSHE Institutions. If a responsible employee receives a complaint about sexual misconduct that has occurred at another NSHE institution, the responsible employee shall report the information to his or her Title IX coordinator, who shall provide the information to the Title IX coordinator at the other NSHE institution.

e. Public Awareness Events—Not Notice to the Institution. Public awareness events such as “Take Back the Night,” the Clothesline Project, candlelight vigils, protests, “survivor speak outs” or other forums in which complainants disclose incidents of sexual violence, are not considered notice to the institution of sexual violence for purposes of triggering the institution’s obligation to investigate any particular incident(s). Such events may, however, inform the need for institution-wide education and prevention efforts, and the Institution will provide information about complainants’ Title IX rights at these events.

f. Off-Institution Counselors and Advocates. Off-institution counselors, advocates, and health care providers will also generally maintain confidentiality and will not share information with the institution unless the complainant requests the disclosure and signs a consent or waiver form