Terrence J. Lavin
In 2013, two female students at the School of the Art Institute of Chicago reported to the campus’ private security force that they were sexually assaulted by a male SAIC student. In response, the accused student sued his alleged victims for defamation.
But a state appeals panel Wednesday found the statements to campus security are protected claims under absolute privilege — the same as if they had been made to a police officer as the reporting of a crime.
The 1st District Appellate Court panel’s nine-page opinion only addressed whether the statements made to campus security were privileged. The merits of Omid Shariat Razavi’s lawsuit against the women and their accusations will be left to the trial court.
“Any answer we provide would be an advisory opinion and the courts of Illinois do not issue advisory opinions to guide future litigation,” Justice Terrence J. Lavin wrote.
The panel’s ruling sends the lawsuit back to the courtroom of Cook County Associate Judge Moira Susan Johnson for further proceedings.
The Law Bulletin does not generally identify victims or possible victims of sexual offenses and will use the initials E.W. and A.Z.
In the fall of 2011, A.Z. and E.W. met Razavi when all three were living in an SAIC dormitory.
In 2013, the two women separately reported to campus security that Razavi had sexually assaulted each of them. A.Z. later withdrew her complaint, but E.W. obtained a “plenary stalking no contact” order against him.
SAIC held a student disciplinary hearing based on E.W.’s complaint. The hearing resulted in Razavi’s expulsion from the school.
According to Razavi’s attorney, Deidre Baumann of Baumann & Shuldiner, her client was never criminally charged in connection to the defendants’ claims.
Razavi sued E.W., A.Z. and SAIC in July 2014 for defamation per se and defamation per quod — accusing them of falsely reporting to campus security that he had sexually assaulted them.
In a combined motion, the defendants argued the statements they made were protected by absolute privilege.
Johnson, however, ruled Razavi’s case raised a question of first impression. She denied the defendants’ motion to dismiss it in April 2015. The defendants filed an appeal to address this question of law.
The question of law the panel ruled on asked whether state law covered these statements as absolute privilege, especially in light of federal efforts to encourage the reporting of sexual violence crimes.
The justices came down strongly in finding statements made to campus security were covered by absolute privilege.
Case law provides that statements are absolutely privileged when they meet two elements: They are made to law enforcement officials and meant to initiate legal proceedings.
The justices noted that campus security essentially act as police officers and conduct their own investigations.
They took note of President Barack Obama’s comments in September 2014 when his administration launched an initiative to end sexual assault at U.S. universities. According to White House statistics at the time, nearly one in five women has been sexually assaulted in college, but only 12 percent of them will report it.
“It stands to reason that a report of sexual violence made to an on-campus university security officer should be absolutely privileged to not only safeguard students but to the further public policy of limiting sexual violence on college campuses,” Lavin wrote.
Finding that victims could be sued for reporting sexual assaults to the campus security would be counterintuitive and have a chilling effect, Lavin added.
“We cannot fathom any public policy that would be served by adopting plaintiff’s argument that he ought to be able to sue these alleged crime victims merely because they opted to contact campus security,” Lavin wrote.
The panel cited a 2008 case from the Indiana Supreme Court which extended absolute privilege to a university. The university removed a professor after two students filed sexual harassment complaints against him.
The professor sued for libel and slander, but Indiana’s high court extended absolute privilege to the university because of state and federal policies encouraging the reporting of these crimes, the 1st District panel noted.
The public policy goal to protect sexual assault victims contributed to the panel’s finding that making a statement to law enforcement on its face satisfies the first and second elements to make it absolutely privileged.
Lavin wrote the panel would continue its practice of presuming victims’ statements “are made for the purpose of constituting legal proceedings.”
“Any other result would effectively transform an absolute privilege into one quality by the victim’s intent, thus potentially exposing victims to the threat of defamation claims,” Lavin continued.
Attorneys for Razavi and the defendants disagreed on whether the panel’s ruling dealt a fatal blow to Razavi’s lawsuit.
Baumann contended the panel’s ruling does not necessarily render the women’s testimony during SAIC student disciplinary hearings as privileged.
She said E.W. and A.Z.’s allegedly false statements led to Razavi’s expulsion.
“They should not get a free pass because they happened to originally report it to campus security,” Baumann said.
E.W.’s attorney, Paula M. Ketcham of Schiff, Hardin LLP, said those statements are absolutely covered, otherwise crime victims would be left in an untenable position.
“My client had no control over the investigation once it began,” Ketcham said. “It would be nonsensical — to not extend the same privilege to her statements made later in the investigation.”
Ketcham noted as well that the school disciplinary hearing arose from E.W.’s statements to campus security, which the panel found to be protected.
Lavin addressed Razavi’s argument as being “outside the scope of the certified question, but we do note that generally once a privileged statement is made to law enforcement any subsequent restatements made in furtherance of an investigation fall under this privilege.”
E.W. was also represented by Shawna S. Boothe of Schiff, Hardin and Katherine E. Gaughan of the Chicago Alliance Against Sexual Exploitation.
Christine Evans, the legal director of CAASE, said in a statement survivors of campus sexual assault have previously expressed fear they could face legal repercussions for reporting their assaults. She praised the panel’s ruling as being “immensely important” to not only CAASE’s work but to these survivors as well.
“More than one survivor has asked our legal team if she could be sued if she reports the sexual assault perpetrated against her to her school,” Evans said in the statement. “This is not an idle concern in the face of backlash against increased awareness of campus sexual assault. The uncertainty over this question at times had a chilling effect on students' willingness to report.”
“With this ruling, we can now alleviate these concerns for students who wish to report or have reported to campus security, as so often directed by their school and Title IX guidance, and empower them to come forward without fear of retaliation through a defamation suit,” she added.
A.Z. was represented by Vincent M. Casieri Jr. and Christopher T. Buckley of Schueler, Dallavo & Casieri. They did not return a request for comment.
Justices Mary Anne Mason and James Fitzgerald Smith concurred with the opinion.
The case is Razavi v. Walkulski, et al., 2016 IL App (1st) 151435.