Naming OSU victim may violate federal law
BY SAMANTHA VICENT World Correspondent
Sunday, January 27, 2013
1/27/13 at 7:33 AM
STILLWATER - The release of an alleged victim's name in a sex tape investigation at Oklahoma State University may have violated federal campus safety laws, experts say.
A 19-year-old female student filed a report on Jan. 19 with the OSU Police Department in which she alleged her ex-boyfriend, also a student, made a sex video of the pair together in October without her knowledge.
The incident report indicates the tape was made in October, and a university source confirmed Wednesday that location of the offense matches the on-campus apartment of an OSU football player.
OSUPD released the incident report on Tuesday, which included the woman's name, address, physical description and telephone number. Names of the suspect and a witness were redacted, a move that has called into question OSU's compliance with the Clery and Open Records acts.
The Clery Act requires colleges and universities who receive federal financial aid to maintain a crime log and disclose its contents to the public.
On Friday, OSU Director of Communications Gary Shutt defended the police department's decision to redact the suspect's name.
"Suspect names are always withheld while the case is under investigation," he said. "The names are released once there are charges or the case is closed."
Shutt also said the alleged victim's name is releasable under the Open Records Act because her name is visible in OSUPD's dispatch logs, which are released to media.
"(The name) did not fall under Clery because it was not an assault or other Clery-covered incident," he said.
The Open Records Act does not specify that victims' names are public information, but it includes a list of items in reports that police "may" release.
OSU police Capt. Richard Atkins echoed Shutt's reasoning on Friday. The case is classified as a peeping Tom investigation, which doesn't fall under the Clery Act's victim privacy statue, he said.
"It's an invasion of privacy crime, not a sex offense under the Clery Act, so it is not a Clery-reportable crime," Atkins said. "It is classified in Clery logs as another state law violation."
Atkins also said the victim's name became public once it appeared on the dispatch log. Releasing the suspect's name before charges are filed would set a negative precedent, he said.
The case is still under investigation. No charges have been filed in Payne County District Court.
"The victim has already come forward with the allegation," Atkins said. "The only way to fix that is to get a court order to seal or block her name.
"If the suspect's name was released in every case, that could perpetuate a lot of false reporting. We protect victims or we hope that the media will ... "
It is the Tulsa World's policy not to publish names of alleged sex crime victims.
Frank LoMonte, the executive director of the Student Press Law Center, said Friday that police could have redacted the victim's name.
"I think that, until an arrest is made, police have the discretion under Oklahoma law to withhold any name in a police report," he said. "Once an arrest is made, then the law entitles you to the name of the person arrested."
Joey Senat, an associate professor in the OSU School of Media and Strategic Communications and the author of "Mass Communication Law in Oklahoma," has questioned OSU's interpretation of the Clery and Open Records acts. He said Friday that the Clery Act supersedes the Open Records Act in this case.
The U.S. Department of Education's handbook on the issue says crime log entries must include all crimes reported to campus security departments, not just Clery Act-specific crimes, which include murder, manslaughter and forcible and non-forcible sex offenses, among others.
The handbook also states that the act takes precedence over state crime log laws.
"The federal Clery Act regulations state that a disclosure may not jeopardize the confidentiality of the victim," the handbook says.
Senat said Oklahoma laws do not distinguish between police crime logs and incident reports.
"The previous state attorney general emphasized that access to the listed information does not depend on the record title used by the law enforcement agency," he said. "It seems contradictory for the Clery Act to supersede state laws on crime logs in order to prohibit the release of the victim's name by the university but not override state laws on incident reports and thus allow the release of the name by the university."
He also disputed Shutt's use of the applicable laws as a defense.
"(Shutt) still hasn't cited a state statute requiring that suspect's names be redacted," Senat said. "He's saying that's just what OSUPD does."
Senat also said OSUPD's daily activity summaries, which provide information about reported crimes, are not in compliance with the Clery Act.
"The log is required to include the nature, date (occurred and reported), time and general location of each crime and its disposition if known," he said. "The description of the location must mean something to the campus community, but the location must not lead to identification of the victim. The activity summary (in this case) doesn't include the date the crime occurred or the general location."
Last month OSU officials faced backlash over their internal investigation into multiple sexual allegations committed by a former student. Five students alleged that Nathan Michael Cochran, 22, had sexually assaulted them.
The university cited the Family Educational Rights and Privacy Act as its defense for not immediately providing the suspect's identity to police. The issue eventually led OSU President Burns Hargis to call for a Board of Regents task force review into the university's handling of the situation, which will determine if OSU used the applicable laws correctly.
Original Print Headline: Naming of OSU victim may violate federal law