Recent Illinois Appellate Court opinion, in concert with the new Act on preventing sexual assault on college campuses, may help curb such violence

As you may know from reading the article on this subject that was published in our June newsletter—or from other sources—the Illinois Legislature passed and Governor Rauner recently signed into law PA 99-426 entitled “Preventing Sexual Violence in Higher Education Act” (Act). This Act, which took effect on August 1, 2016, defines a broad range of acts of sexual violence that fall within its scope. It also provides guidance for institutions of higher learning as to protocol for processing reports of sexual assault; for investigating complaints; for providing a “fair and balanced” hearing process for resolving complaints; and for training school personnel. These covered institutions must also inform the student body about the Act and its protections as well as other available resources such as survivor counselling and options for scheduling changes to accommodate survivors, education for bystanders, and the role of campus security. A primary objective of the Act is to hold college and university administrations more accountable and thereby facilitate their provision of safer environments so their students can focus on the pursuit of their higher education goals. Thus, they must also file annual reports with the Office of the Illinois Attorney General.

To further the protections afforded to those students who report their attackers to school personnel, and perhaps as a warning to would-be attackers, we now have a First District Illinois Appellate Court Opinion issued June 1, 2016 that addresses a component of the process for reporting an attack. The case, Omid Shariat Razavi v. Eva Walkuski and Ariel Zekelman and School of the Art Institute of Chicago, 2016 IL App (1st) 151435, clarifies that the privilege attaching to statements made to law enforcement regarding the commission of a crime extends to college student reports of sexual assault to campus security.

All three named parties in the appeal attended the School of the Art Institute of Chicago (SAIC) and lived in the same school dorm. The basis of the trial court action that resulted in an appeal was a defamation claim Razavi filed against two female classmates, Walkuski and Zekelman, both of whom had reported Razavi to the campus security director in late 2013 for sexually assaulting them. One of those complainants, Ariel Zekelman, ultimately withdrew her complaint but Eva Walkuski proceeded with hers (for both sexual assault and stalking) which led to a disciplinary hearing for Razavi before the SAIC student conduct board.

Based upon the board’s finding that Walkuski’s allegations were credible, Razavi was subsequently expelled from the SAIC. In July 2014, Razavi sued both Walkuski and Zekelman for defamation per se and per quod for what he characterized as false reporting of sexual assault to the SAIC campus security officers. When the trial court denied defendants’ Motion to Dismiss plaintiff’s complaint, defendants requested and the court granted certification, under Illinois Supreme Court Rule 308, of the following question for 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, particularly when federal law encourages college students to report sexual violence to campus security?”

In its analysis of the certified question, the Appellate Court first noted that its role was to answer the question and not to “address the application of the law to the facts of the case.” Due to that circumscribed role, the Court did not delve into a detailed factual analysis of the SAIC student policies for the administrative handling of victim reports, nor did it consider plaintiff’s arguments that defendants’ statements to non-police school personnel during the investigation of the reports were of a lesser status because those personnel were not connected in any way to law enforcement.

Reviewing as a matter of law, and de novo, whether a defamatory statement is privileged, the Court observed—and plaintiff acknowledged—that SAIC’s handbook does offer victims the option of reporting sexual assault to local police or to campus security. Plaintiff Razavi asserted, however, that statements to campus security do not quality for protection from liability for defamation as do statements to local law enforcement. The Court disagreed and, consistent with “Illinois’ long history of affording absolute privilege to individuals who report crime to further public service and administer justice”, the Court held that absolute privilege extends to a crime victim’s statements to campus security, whether at a public or private university, and can therefore be raised as an affirmative defense to a defamation action.

The remainder of the Opinion reinforces that a campus security department exists to protect and assist students and uphold the law; that an absolute privilege attaching to reports to campus security helps safeguard students and “further public policy of limiting sexual violence on college campuses”; and that failure to deem such reports as privileged would deter reporting and penalize victims who do report incidents of sexual violence. Moreover, once a privileged statement is made, restatements “in furtherance of an investigation” are covered by that same privilege. The Court buttresses its conclusion with a citation to Hartman v. Keri, 883 N.E.2d 774 (Ind. 2008), wherein the Indiana Supreme Court held that student reports of sexual assault and harassment are protected by absolute privilege even though existing Indiana law extended only a qualified privilege for statements made to law enforcement. The Hartman Court determined, as did the Razavi Court here, that a lack of absolute privilege would have a chilling effect. Finally, the Court made short shrift of the second requirement for a defamation action: that the statements were made for the purpose of initiating legal proceedings, by concluding that courts should not be mandated to examine the subjective intent of the person reporting the sexual assault. Instead, the absolute privilege must apply to protect the victim.

It is encouraging, as well as a reflection that the Court recognizes the gravity of campus sexual violence, that the Razavi opinion references in footnotes both the ‘It’s On Us’ campaign initiated in 2014 by President Barack Obama’s administration and the new Illinois Act, briefly described at the start of this article, that addresses sexual violence on college campuses. It is likely that the Razavi case—in which the remand to the trial court was issued on July 1, 2016, will be considered an important, positive step toward improving the climate for students on college and university campuses throughout Illinois—and it may even be relied upon favorably for assault victims in other states. 

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The part of this article discussing the Razavi case is reprinted with revisions from an article covering the case and the Act that was recently published in The Tablets, the Decalogue Society of Lawyers newsletter.