Toward an Absolute Privilege from Defamation for Statements Made in Campus Sexual Misconduct Proceedings

Title IX prohibits recipients of federal funding from discriminating on the basis of sex in their education programs and activities. The regulations implementing Title IX impose strict requirements on the procedures that institutions must follow in investigating and adjudicating complaints of sexual harassment. But survivors using campus processes are facing potential liability for defamation at an increasing rate. The existence of this threat leads to further underreporting of an already-underreported crime, a detrimental impact on survivors’ education, and psychological stress created by the re-traumatization of a civil suit that carries potential monetary liability for their report. This Note argues that absolute privilege should be extended to statements made in campus sexual misconduct proceedings. It explains why currently available lesser protections are insufficient to protect the interests of reporting and participation in the campus sexual misconduct process. It then describes how absolute privilege for these statements is necessary to protect survivors and the integrity of the sexual misconduct process. Finally, it includes proposed statutory and common law language for extending this privilege to statements made in campus sexual misconduct proceedings.