Let's talk about the Outside the Lines piece

Talking about mental illness is incredibly intimidating. I think that's true even for experts. The brain is intimidating and unpredictable and weird and impossible to completely understand, and those who deal it almost talk about it like a hostage taker making demands.

The last two weeks for ESPN/Grantland have proven just how much we don't yet understand about mental illness and the protocols with which we handle it. First, Grantland, which is run by an incredible set of editors and writers (and employs quite a few friends and/or acquaintances of mine), swung and missed terribly in an attempt to both a) show empathy and b) discuss a portion of the population infinitely more prone to depression and suicide. Then, in an Outside the Lines piece about the suicide death of Missouri swimmer Sasha Menu Courey, ESPN appears to have completely misunderstood general HIPAA and FERPA issues and the difference between procedure and sensitivity.

Because I'm not confident enough to deal with this issue using only my words, I'm going to liberally quote others.

First, here are the most damning (to me) parts of the OTL piece (which has been updated since its original publication).

Under Title IX law enforced by the U.S. Department of Education, once a school knows or reasonably should know of possible sexual violence it must take immediate and appropriate action to investigate or otherwise determine what happened. The law applies even after the death of an alleged victim. Further, the federal Clery Act requires campus officials with responsibility for student or campus activities to report serious incidents of crime to police for investigation and possible inclusion in campus crime statistics.

Among the thousands of pages of documents gathered by Missouri administrators in late 2012 in response to a records request was a December 2010 online chat transcript between Menu Courey and a rape crisis counselor that had been saved in Menu Courey's university email folder. In the transcript, the former top swim recruit describes an assault after having consensual sex with an unidentified man. Another document discovered by a university hospital administrator shows Menu Courey had told a campus nurse and doctor in 2011 that she had been raped by a football player in February 2010. [...]

At least one expert said Friday evening that Missouri is shirking its duties under Title IX law. "At the point that the university's administrators had notice of the alleged rape(s), they had an obligation to investigate, based on the potential harm that the alleged rapists posed and pose to the university community," said Brett Sokolow, executive director of the Association of Title IX Administrators. "Title IX obligates universities to these actions, and to efforts to remedy the effects of the acts for the victim and the community." [...]

She was hospitalized again and placed on a 96-hour involuntary commitment. While in the hospital, Missouri athletic department staffer Meghan Anderson presented a University Withdrawal Form to Menu Courey, which Menu Courey signed despite a desire to continue with her schooling and the fact that she was legally incapacitated at the time. Rhodenbaugh said the withdrawal form was presented in order to preserve her grades and prospects of returning to Missouri. Yet one of Menu Courey's professors told "Outside the Lines" she could have passed his two courses.

Records show that the first university staffer whom Menu Courey told of the alleged incident was her on-campus therapist, in December 2010, 10 months after the incident. The first information uncovered by "Outside the Lines" in which she identified her assailant to university staff as a football player dates from March 2011. The mention appears on a nursing assessment after she had checked herself into the on-campus Missouri Psychiatric Center. Asked if she had a history of sexual, physical or emotional abuse, Menu Courey answered yes. The nurse wrote below that, "raped/football player."

In two published pieces, Missouri SID Chad Moller responded. From the December 2013 response (pdf):

Sasha eventually sought treatment at the MU Psychiatric Center, where it has been reported that she was diagnosed with borderline personality disorder. On an aside, I've seen a newspaper article or two where either Mrs. Courey or Mr. Menu state that they wish this diagnosis had been given for Sasha after her suicide attempt during her high school years. Upon leaving the MU Psychiatric Center, in March of 2011, Sasha attempted to take her life at a local motel, while her parents were in Columbia watching over their daughter's progress, as you know. Thankfully, this attempt was unsuccessful, but due to injuries from this attempt, she was admitted to MU's hospital.

At this time, with only a little over a month left in the academic semester, a decision had to be made related to Sasha's academic future. Knowing that she would likely be in treatment facilities for the remainder of the semester and unable to finish her coursework (let alone have the right mindset to do so at her level of expectation), our academic team, led by advisor Meghan Anderson, consulted with Sasha's family in regards to her academic options. The initial decision was to see how Sasha would progress at the Kansas City facility, where her family and medical professionals had decided to transfer her for further care. Once the decision was made to seek treatment in Boston, following the stay in Kansas City, Megan was consulted again, and Sasha and her family made the final decision to withdraw her from her courses. [...]

Another important thing to note is related to a sexual incident during Sasha’s freshman year. No one on the coaching staff (the previous staff was here in February of 2010), and no one in our administration nor any staff members, were to the best of our knowledge, ever told about this event while Sasha was alive. Had Sasha told any of our staff that she felt she had been assaulted, we expect that our staff would have reported it immediately to the proper authorities. Following the massive Sunshine request from Sasha’s parents, the University’s custodian of records reviewed documents from Sasha’s draft e-mail folder, and saw a reference to this in an online chat transcript that Sasha apparently had kept. The chat transcript was not very clear about the situation and didn’t identify anyone else involved, nor did it give any indication that Sasha had reported the situation to anyone. As you know, the custodian of records contacted the MU Office of Student Conduct, who reached out to Mrs. Courey and Mr. Menu to see if they had information and wanted the University to conduct an investigation. Student Conduct received no response to my understanding, but you would have to ask Sasha’s parents about that certainly.

Tom’s assertion during the interview session that Mizzou Athletics should have known that there was an alleged assault was based on his belief that it was "well known" within the student‐athlete community here at Mizzou. I can’t confirm or dispute the validity of Tom’s assertion, but either way, we are not aware of that supposed knowledge ever making its way to anyone in a position of authority. Again, to be clear, we have no evidence to suggest that Mizzou Athletics personnel had any knowledge of this allegation. Further, any suggestion of that sort seems inconsistent with the chat transcript that ultimately was found in Sasha’s draft e‐mail folder. Nothing in the chat transcript indicated that Sasha had discussed the incident with anyone, even her therapist.

From Friday's response:

You seem to be implying, if not suggesting, that because Sasha told MU medical personnel about a sexual assault while she was a student, that other MU officials should have been aware and taken some sort of action. That is simply wrong.

It is my understanding that when an adult student, such as Sasha, is seeking treatment from MU medical personnel and informs them about a sexual assault, those medical personnel have duties of privacy and confidentiality to the student under state law, professional rules, and HIPAA. They are not required, or even allowed, to report the sexual assault to law enforcement or campus administrators without the authorization of the student. You previously have mentioned the affirmative obligation of universities to address student sexual assaults. That obligation particularly arises from Title IX. While the U.S. Department of Education interprets Title IX to require most university personnel to report student sexual assaults, that doesn’t apply to information that medical personnel receive in the course of treating patients. Nothing in Title IX sets aside a health care provider’s duty of confidentiality to a patient or otherwise requires or allows university medical personnel to report sexual assault of a student patient without that individual’s authorization.

MU’s Title IX website informs student victims of sexual assault that they can get treatment confidentially and without making a police report: http://equity.missouri.edu/titleix.php. This is not just MU’s interpretation. In a quick Google search, right away I found other universities that emphasize how students can get confidential treatment from school medical personnel. I’m sure there are more, but here are some examples that popped up on the first page of my Google search:

* Maryland: http://www.umd.edu/Sexual_Misconduct/;

* Drake: http://www.drake.edu/dos/handbook/resourceguidetosexualmisconduct/; and

* California – Berkeley: http://ophd.berkeley.edu/policies-procedures/sexual-assault .

Nothing in what you’ve provided suggests that Sasha asked or authorized MU medical personnel to report a sexual assault. We’re not otherwise aware of any information to that effect. [...]

Nicole, your organization could contribute to some real harm here if the story gets this wrong. If there’s a perception that medical personnel employed at universities should or must report sexual assaults to police or campus administration whenever a student discusses a sexual assault in seeking medical help, it could discourage victims of sexual assault from seeking treatment at the time of the assault or discussing it in connection with later treatment. That’s why university policies (like those noted above) make it a point to inform students that they can get treatment confidentially.

Secondarily, it’s not right – and is possibly defamatory – to run a story that states or implies that the health care providers who treated Sasha did something wrong by not reporting information of her sexual incident to police or campus administrators. Those people have professional and legal obligations of confidentiality and shouldn’t be faulted for abiding by them.

These considerations are important in addressing the second question you’ve posed. You essentially imply that because of questions Tom asked in the interviews, MU Athletics should have gone to mental health care providers who treated Sasha and questioned them about information she may have provided to them. How would it have been appropriate for MU Athletics staff to do that without authorization? I recognize that Sasha’s parents provided your organization with an authorization to get health records, but they have never provided anything like that to us. When Student Life asked Sasha’s parents if they wanted an investigation conducted, they did not respond, as I’d indicated to you in my December letter.

So, to respond to your second question: MU officials did not try to obtain information from medical personnel who treated Sasha about any sexual incident she may have reported while seeking treatment. Medical personnel employed by MU have privacy and confidentiality obligations to their patients an MU respects those obligations. Sasha had not provided any authorization for MU officials to access her medical records in that regard, nor do MU officials have any such authorization from Sasha’s parents. As soon as MU officials became aware of this sexual incident while reviewing Sasha’s e-mail account in response to a records request from Sasha’s parents, they wrote to Sasha’s parents and asked whether they wanted an investigation to occur. Sasha’s parents have not responded.

With permission, I'm also reproducing a comment made by RMN's own jschooltiger yesterday. It nails the issue better than anything I could produce on my own.

Mrsjst and I talked about this quite a bit last night. She had an interesting perspective, being someone who works in mental health. Before I start here, I think we can all agree:

* The university in general (students, faculty, staff and administration) needs to change the way we think about sexual assault and rape culture. We need to make sexual assault something that people are much more aware of; we need to make reporting it easier/less terrifying, and we need to do a better job of penalizing people who commit sexual assaults.

* We also need to do better with our understanding of student mental health issues, and need to do more to make sure students get the help they need. (At the jschool, for the past year, the chair of our print and digital sequence has led a real push to have our faculty trained in recognizing signs of stress, depression and other mental illness and to understand how to help students with those issues. More on that in a bit.)

* FERPA and HIPAA are real, actual obstacles to the two points above.

During the mental health awareness training this year, we had a couple of individuals lead our editor/professor group through a series of discussions on how to help students. The major points that stuck in my mind are:

* More students are coming to college with mental health issues that once would have kept them out of college, in part because of better treatments and drugs that allow folks to overcome problems. It also leaves those students more vulnerable, however, when they run into trouble.

* We’re experiencing an increase in student stress in general over the past 5-7 year period (they keep rolling stats on use of services) in part because of the economy — students are having to work more jobs when in school, parents are losing jobs, etc.

* The journalism school leads the campus in numbers per capita of students who seek mental health services. Which really isn’t pertinent here, but yay us.

* What we can do as faculty/staff when we see students experiencing mental health issues is to talk to them, offer to reduce workload, make accommodations in class, refer them to the counseling center or outside counselors, etc.

* What we can do is to report that a student is having trouble to our faculty chairs, their superiors (assistant dean, dean, etc.) and to advisors, because those people have access to the student data already.

* What we can do if we see the student in immediate crisis is to call a mental health hotline, or if they’re in immediate danger call 911 and let the police sort it out.

* What we can’t do as faculty/staff, because of FERPA, is to call their parents. (Unless the student has given us permission to do so.)

* What we can’t do as faculty/staff, because of FERPA, is to talk to other professors about the student and his/her struggles. (Unless the student has given us permission to do so, or the other prof is in your chain of command.)

When mrsjst and I were talking about this last night, she was surprised that we aren’t mandatory reporters for things like this (because she works with kids and in the school setting, and teachers/counselors/nurses/admin are), until I reminded her that our students are (with rare exceptions) legally adults. I was half joking on Twitter the other night about FERPA, but I looked into my question and I found out that I honestly literally can’t send a list of students who were on a wait list for my class to another professor, because of student data laws.

In the story, the person on campus who was probably in a position to report the problem to other campus officials was Meghan Anderson, the AD staffer. But the only person/s she could have reported it to were her superiors, up to Alden. But Menu Courey told Anderson in May, after she’d already left school. (The online rape crisis center she contacted could provide counseling and suggest she report it, as could her campus counselor, but neither of them could report on their own.)

The part of the story that’s most troubling to me (other than the assault and and suicide of course), honestly, is how the swim team and Anderson handled this.

I should mention here that I am biased in my views on the swim team; a friend of mine who is himself a former MU swim coach had a daughter who was a swimmer for the team, who is no longer on the team, and whose dismissal was an absolute train wreck. But leaving that aside, if Menu Courey was struggling on the team and not seeing counselors, the coach telling her not to practice may well have been counterproductive. (Given what I know from the family friend, I doubt that was handled well or compassionately, but this is a personal opinion, not a fact.)

In any case, there is quite a bit about this that really bugs me:

She was hospitalized again and placed on a 96-hour involuntary commitment. While in the hospital, Missouri athletic department staffer Meghan Anderson presented a University Withdrawal Form to Menu Courey, which Menu Courey signed despite a desire to continue with her schooling and the fact that she was legally incapacitated at the time. Rhodenbaugh said the withdrawal form was presented in order to preserve her grades and prospects of returning to Missouri. Yet one of Menu Courey’s professors told "Outside the Lines" she could have passed his two courses.

The withdrawal form is something I’ve had to do with two students who were having trouble with mental health and classes. It basically allows students to leave the university in good standing if they have a reason to do so — mental health, family emergency, whatever — rather than failing classes, which remain on their academic transcript. But it’s really not something that you want to push on a student, and it in combination with what happened with the swim coach could easily have left Menu Courey feeling as though she was being pushed out of school/swimming.

That said, it also bugs the crap out of me how ESPN reported that. Both students who I’ve had withdraw from the university probably could have passed my class, because I would have made accommodations for them and worked around it. But that’s not the point of the withdrawal form; it’s meant to give students a break from school and prevent them from having to juggle it with their other problems so they can work those out.

Something that mrsjst pointed out is that people with borderline personality disorder often have stress-related paranoid thoughts or dissociative symptoms, and that it’s a really difficult disease to treat partially because it’s difficult for a therapist to help the client pick through the client’s different versions of reality. Borderline patients also tend to have really turbulent moods and are often histrionic. I’m not bringing that up to say that Menu Courey was not assaulted — we seem to have confirmation of that through Woodland — but that it’s entirely possible that her counselors or health professionals weren’t sure what was true or not, which further complicates the reporting issue.

It’s a really, really terrible story. I don’t think there are any good answers here, or easy ones. I hope that it does have the positive effect of creating a discussion at Mizzou, with a good outcome, about how we can help students who are struggling.

This was something the Missourian did recently as part of reporting on the underreporting of sexual assault/rape at Mizzou.

There are questions I would love for Missouri to answer.

If she really told Meghan Anderson about the rape in May (which Anderson evidently denied), why didn't Anderson go further with that? (Of course, if Anderson denies it, Anderson denies it -- perhaps with complete truth on her side -- and we're never going to get further down this road.)

How sensitive of the university was it to a) present her with her withdrawal options so quickly after the suicide attempt, or b) sit on the chat transcript for a while before presenting it to her parents? Timing and sensitivity matter significantly, and Mizzou seemed to lack both.

And perhaps most importantly, is Missouri really interpreting its Title IX responsibilities correctly? The university obviously thinks so, but ESPN was pretty quickly able to speak to somebody who disagrees with that interpretation.

I would love for Missouri to investigate these questions. I don't ever want this to happen again. And if it's still not too late to investigate the sexual assault itself and/or bring rape charges to the table, do it. I root for this program, and the feeling that I was rooting for people ("people") capable of this makes me sick. And honestly, I would love for this to become a reason for everybody to ask questions about the processes for handling both sexual assault allegations and mental health issues. Both are far too prevalent in college life for us to have so many questions about them.

What drives me craziest about the ESPN piece, however, is the casual nature with which it treats HIPAA. This is a true obstacle, and if Menu Courey did not give the requisite permissions, then there was no way to pass along charges. In my view, Missouri perhaps didn't show the right amount of sensitivity, but it seems to have followed protocol. I demand improvement on the former, but the latter was the entire premise of the ESPN piece, and it is a missed opportunity to have missed so badly in that regard. (It is a further missed opportunity, not to mention incredibly pithy and catty, to bring up Missouri's football record in 2010, suggesting Mizzou's success had something to do with this when there is no evidence for that.) If the chain of communication/protocol was properly followed -- and by Missouri's account, at least, it was -- then the problem is with the chain, not with Missouri.

(And if it turns out that people who could have done something about this, indeed knew about it and didn't act, then my stance changes immediately. Part of me almost wants to have my mind changed so I don't feel like a defensive homer on the issue. Since there are still significant, substantive questions to answer in that regard, perhaps ESPN should have investigated this further before deciding to publish the piece.)

UPDATE: Because I was putting this together, I missed two new responses from Mizzou.

First response:

Our sympathies continue to be with the parents, family, friends and teammates of Sasha Menu Courey for her loss.

As a result of information that first came to the University of Missouri's attention in a Friday, January 24th report by ESPN's Outside the Lines program related to former student-athlete Sasha Menu Courey, the MU Police Department submitted information to the Columbia Police Department on the evening of Saturday, January 25th. This information from ESPN's story included names of individuals who might have relevant information regarding the alleged February 2010 assault.

After review of this new information which was previously unavailable to MU, it was determined that the alleged assault occurred off campus, and therefore lies within the jurisdiction of CPD. The university will assist CPD in any way possible as they conduct their investigation.

MU was previously unable to go forward with an investigation because there was no complaint brought forward from the alleged victim or her parents, and there was otherwise insufficient information about the incident. Privacy laws prohibited MU medical personnel from reporting anything Sasha might have shared with them about the alleged assault without her permission.

MU first became aware of the alleged assault in late 2012, after Sasha's June 2011 death, upon reviewing the transcript of an online chat that Sasha conducted with a crisis hotline believed to have taken place in December of 2010.

MU's Office of Student Conduct asked Sasha's parents in a letter dated Jan. 28, 2013, if they had any information that would help identify those involved and if they wanted an investigation of the alleged assault to occur, but they did not respond. In the fall of 2013, after continued communication with ESPN through numerous Sunshine requests, MU asked that ESPN share names of anyone at the University who they claimed knew about the alleged assault; they refused.

Out of respect for the CPD process, MU will not comment on the investigation.

Second response:

ESPN's story identifies four points at which the University allegedly had information about a sexual assault against Sasha and claims that the University should have done more to address the alleged assault. But a look at the facts on each of those points shows that the claims in the ESPN story are skewed and unfair.

1. Sasha's private discussions with health care providers. The ESPN story acknowledges that health care providers are not required to make reports when their patients tell them about sexual assault. Still, in the context of a piece suggesting that the University knew something about the assault and should have done more, the story repeatedly references records showing that Sasha mentioned a sexual assault to health care providers at the University. Since ESPN itself acknowledges that the health care providers can't make reports without a patient's authorization, this repeated emphasis on Sasha's conversations with health care providers is misplaced and misleading.

It is important to point out this type of skewed and flawed reporting because it is dangerous. Victims of sexual assault need to know that they can seek medical care without the concern that reports will be made to police or campus officials without their consent. Otherwise some victims will be deterred from seeking medical care.

2. Alleged report to Meghan Anderson. The ESPN story reports that there is an entry in Sasha's journal stating that, while she was in treatment in the Boston facility before committing suicide there, she telephoned Meghan Anderson, who was then employed at MU Athletics, and told her about the alleged sexual assault. We have never seen Sasha's journal and were not aware of this assertion in it until ESPN raised the issue long after Sasha's death. Meghan Anderson, who now works at another institution, denies that Sasha ever told her anything about a sexual assault. She has denied this in a statement to ESPN and has denied it to MU Athletics officials when asked about directly about that claim. Based on the experience of MU Athletics in working with Meghan, we have no reason to doubt her statement on this point. In any event, there has been no suggestion that anybody else at the University was told anything about a sexual assault at that time.

3. February 12, 2012 Columbia Daily Tribune article. The ESPN story notes that an alleged sexual assault on Sasha was mentioned in a Columbia Daily Tribune article that was published on February 12, 2012. ESPN suggests that this should have prompted the University to conduct an investigation. ESPN fails, however, to describe what was actually published in the Columbia Tribune article. Here are the only two sentences from that article that discuss a sexual assault: "Menu Courey also wrote in her diary months later that she was sexually assaulted at the end of her freshman year. She did not name the attacker." Thus the article, appearing many months after Sasha's death, did not mention where the alleged assault occurred, much less suggest it occurred on or near campus, or whether any other students were involved. It defies reason to suggest that these two sentences should have prompted the University to investigate.

On that point, it seems apparent that Sasha's parents shared this information from her journal with the Columbia Daily Tribune prior to publication of the February 12, 2012 article. Yet they never - not at that time or since - brought this information to the attention of the University or otherwise asked the University to investigate. It makes no sense to fault the University for not launching an investigation based on two vague sentences in a news article about Sasha's journal when Sasha's parents did not choose to bring that information to the attention of the University or law enforcement and request an investigation. This further shows the flawed and skewed reporting by ESPN. It's also worth noting that the Columbia Daily Tribune never inquired whether the University conducted an investigation as a result of its article.

4.Chat transcript found in response to Sunshine request. The ESPN story discusses an apparent transcript of an online chat between Sasha and a sexual assault counselor. The chat transcript was found and provided to Sasha's parents by the University in response to a Sunshine Law request that they made. It was found in the drafts folder of Sasha's University e-mail account, attached to a draft e-mail that Sasha had addressed to herself. The chat transcript stated that the incident occurred at the place of a man with whom she had consensual sex, but did not indicate where his place was. Nor did the transcript identify any of the other individuals involved, other than noting in passing that the men were "football players." Under the circumstances, we consider that it was right and appropriate to ask Sasha's parents whether they wanted the University to conduct an investigation. The University asked them that question and they never responded. We have addressed this point in more detail in communications to ESPN, which are posted on MU Athletics' website.

We continue to believe that the University did the right thing in trying to be respectful of Sasha's parents and determine their wishes. We think it is strange and inappropriate for the University to be criticized for not undertaking an investigation when Sasha's parents chose not to respond to our request for their input. If they wanted an investigation, they simply could have responded or made a report to law enforcement. Instead, it appears that great lengths have been taken to paint the University in a bad light simply because it asked Sasha's parents about their wishes rather than immediately launching an investigation based on a highly ambiguous chat transcript.

UPDATE #2: ESPN has updated its OTL piece to account for Mizzou's Sunday response.

In a second release Sunday, Missouri took exception with reporting by "Outside the Lines" and stood by its actions over the past three years.

"We continue to believe that the university did the right thing in trying to be respectful of Sasha's parents and determine their wishes. We think it is strange and inappropriate for the university to be criticized for not undertaking an investigation when Sasha's parents chose not to respond to our request for their input.

"If they wanted an investigation, they simply could have responded or made a report to law enforcement. Instead, it appears that great lengths have been taken to paint the university in a bad light simply because it asked Sasha's parents about their wishes rather than immediately launching an investigation based on a highly ambiguous chat transcript."

Menu Courey's parents told "Outside the Lines" for Friday's story that they did not respond to Missouri officials because they had lost faith over time and did not feel it was their job to investigate the matter as they had no access to documents. In one example, they doubted university's officials' sincerity, they said, because it took three months for the university to give them a copy of Menu Courey's online chat transcript with the rape crisis counselor. The university discovered it in late 2012 but provided it three months later.

I will give the benefit of the doubt to her parents, simply because they have experienced something I cannot imagine -- the loss of a child. I think it is quite possible for parents to "lose faith" in quite a bit with an experience like this. But if the university asks for your permission, and you don't give a response because you doubt the "sincerity" of officials, that's a completely different issue, and taking your story to ESPN instead, when nobody's completely sure what the story really is, is spiteful, especially considering that, in the end, it accomplishes the same goal: an investigation.

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