So How Did Harvard Get Private Therapy Records Without Consent?

Yesterday, three graduate students sued Harvard University over what they characterized as its “decade-long failure to protect students sexual abuse and career-ending retaliation.” The case — filed in Massachusetts District Court by plaintiffs Margaret Czerwienski, Lilia Kilburn, and Amulya Mandava — concerned allegations of sexual misconduct against a tenured professor, anthropologist John Comaroff, and the resulting investigation process, which they claimed the university allowed to be “used in service of Prof. Comaroff’s campaign of professional blacklisting.”

At the crux of the complaint are allegations from Kilburn, who claims that Comaroff repeatedly and forcibly kissed her, groped her in public, made inappropriate remarks, cut her off from other professors, and retaliated against her and her co-plaintiffs when they reported his behavior to school administrators. On Jan. 20, graduate faculty dean Claudia Gay sanctioned Comaroff, announcing that two school investigations had found he had violated sexual and professional conduct policies. The school placed him on unpaid leave for one year. But this came after a lengthy review process in which the school, the students allege, displayed “deliberate indifference” to the charges they raised against him.

Last week, however, 38 faculty members (including professors like Jill Lepore, Jamaica Kincaid, and Henry Louis Gates, Jr.) signed an open letter questioning the decision. There was an immediate backlash; Gay publicly warned the signatories that they were “operating without a comprehensive understanding of the facts that have motivated the response.” (As of press time, 34 of them have since said they regret signing the letter). Shortly after the lawsuit was filed on Tuesday, 73 other faculty published a response letter, condemning their colleagues for “openly align[ing] themselves against students who have lodged complaints.”

But for all the public letter writing, few had answers for one of the most alarming allegations in the filing — specifically, the claim that, during the investigation process, Harvard had “obtained Ms. Kilburn’s private therapy records without her consent and disclosed them to Professor Comaroff.” Huh? Anyone loosely familiar with therapy will find that surprising. Typically, a patient’s medical histories are protected by HIPAA. They may be subject to disclosure during court discovery or under circumstances when both therapist and third party have obtained consent from the patient. Some students see psychiatrists through university health systems; those physicians would still be obliged to comply with HIPAA. But this wasn’t even a Harvard physician; Kilburn had been consulting a therapist in private practice. How did Harvard get ahold of her mental health records allegedly without her involvement?

Harvard’s media office did not immediately return Gawker’s request for comment, and the plaintiffs’ attorneys, at the firm Sanford Heisler Sharp, declined to get into the details of how the medical records had been obtained. One of the students’ lawyers, Carolin Guentert, told Gawker that the notes were received during the mediation process with Harvard’s Office of Dispute Resolution (ODR). The office made redacted versions of the notes available to both Comaroff and Kilburn, but Kilburn claims never received the complete version of her own therapy notes. Here’s what the complaint says about the situation:

In 2020, ODR contacted Ms. Kilburn’s psychotherapist, a private therapist unaffiliated with Harvard, and obtained the psychotherapy notes from her sessions with Ms. Kilburn. ODR did not obtain Ms. Kilburn’s consent for the release of those records. After obtaining the notes without Ms. Kilburn’s consent, ODR then withheld the full notes from Ms. Kilburn, redacting swaths of the notes and refusing to disclose the redacted portions even as ODR’s investigator grilled her about the redacted contents during an interview.

ODR then provided the notes to Professor Comaroff as part of its draft report. Professor Comaroff, in turn, deployed the notes to gaslight Ms. Kilburn, claiming that she must have imagined that he sexually harassed her because she was experiencing post-traumatic stress disorder — a condition that she developed as a direct result of his conduct.

In a statement to Gawker following the publication of this post, a spokesperson for Harvard noted that the ODR often collects additional information submitted by either party. This might include interviewing witnesses, collecting documents or conducting site visits. She declined to comment on the specifics of the case, but said that any student filing a complaint with the ODR is informed that additional information submitted during the process will be shared with the other party. A flow chart on the ODR’s website which explains the resolution process notes the following: “Copies of these materials will be given to the other party and, at that party’s discretion, their personal advisor (if applicable).”

The school allegedly shared Kilburn’s records not only with Comaroff but with “multiple people, including but not limited to…his lawyers (one of whom is a Harvard faculty member), several faculty members on Harvard’s appeal committee, members of the Office for Gender Equity, Title IX coordinators, and deans.” In September of 2021, Kilburn’s lawyers sent Harvard a letter requesting that the school “not further disclose her medical records” and inform her of individuals who had received a copy of them. They also asked the school to tell those people to return their copies to Harvard’s general counsel. Per the complaint, Harvard rejected the requests.

“What I can say is Harvard induced somebody else to not follow the HIPAA regulations,” Guentert told Gawker. “Harvard requested notes for which Harvard needed to obtain and the therapist needed to have written consent. This is a serious allegation that we make in the complaint because it shows just how invasive this process can be.”

If you have information about Harvard’s Office of Dispute Resolution or the administrative process involved in obtaining medical records, drop us a line at tips@gawker.com.