Through much of 2020 and 2021, Lilia M. Kilburn, an Anthropology Ph.D. candidate at Harvard, worked closely with the University’s Office of Dispute Resolution, which was investigating a sexual harassment complaint she filed against professor John L. Comaroff.
By January 2022, further Harvard investigations concluded Comaroff had violated the school’s sexual harassment and professional conduct policies. Faculty of Arts and Sciences Dean Claudine Gay subsequently levied sanctions against the professor.
Now, months after the investigations have ended, ODR’s fact-finding process remains mired in controversy.
Kilburn and two other graduate students, Margaret G. Czerwienski and Amulya Mandava, filed a lawsuit against Harvard in February alleging the school ignored years of sexual harassment by Comaroff. In new filings submitted in July and August, Harvard and the plaintiffs sparred over whether Kilburn gave consent to the school to obtain and distribute her therapy notes to Comaroff during its investigation.
In the tenth count of the suit, the plaintiffs claim Harvard violated Massachusetts privacy laws by failing to obtain Kilburn’s written consent for the access, use, and disclosure of Kilburn’s therapy records.
The University holds that Kilburn encouraged ODR investigators to contact her therapist and obtain those notes.
During its investigation into Kilburn’s complaint against Comaroff, ODR was given her therapy records from her private therapist. The records were later distributed to Comaroff, his legal team, faculty members on Harvard’s appeal committee, the University’s Office for Gender Equity, and deans as part of ODR's final report.
The suit alleges that Comaroff used the therapy notes to “gaslight” Kilburn by “claiming that she must have imagined that he sexually harassed her” because of her post-traumatic stress disorder; however, the suit claims she developed PTSD as a result of his harassment of her.
Over the summer, the University asked U.S. District Court Judge Judith G. Dein to rule in its favor with a summary judgment on the tenth count.
In a memorandum supporting its motion for partial summary judgment, the University claims Kilburn provided her therapist’s information to ODR and told the office that her therapist “should have” some “notes or memories” for investigators. The school maintains that before Kilburn steered investigators to her therapist, ODR notified her “no fewer than seven times” that evidence obtained in an investigation would be shared with Comaroff as part of usual ODR proceedings.
On Aug. 23, the plaintiffs opposed Harvard’s motion, arguing that exhibits submitted by the University show Harvard lacked evidence of written consent from Kilburn. They further argued that the University based its argument on an “ambiguous” verbal statement from Kilburn.
According to a memorandum in support of Harvard’s motion by ODR investigator Ilissa A. Povich, she emailed Kilburn several documents outlining the Harvard’s sexual harassment policies and investigative procedures at the start of the investigation.
After Kilburn asked for clarification on the policies, Jessica L. Shaffer, an ODR staff member at the time, responded in an email that both parties would have “the right to review and respond to all information that ODR may rely on in the investigation.”
In an affidavit, Kilburn wrote she did not get “straightforward” answers after asking how ODR “would determine whether it ‘may rely’” on certain information for its conclusion, she wrote.
Per Kilburn’s affidavit, Comaroff stated in his August 2020 response to Kilburn’s ODR complaint that he believed the “substantial emotional distress” he observed in Kilburn was brought on “for reasons unrelated” to him. Kilburn maintains she decided to involve her therapist in the investigation in order to prove to ODR that her emotional distress “largely” stemmed from his alleged harassment of her.
According to the affidavit, Kilburn emailed her therapist on Aug. 20, 2020, asking if she “might have notes from our sessions that mention” the misconduct she described experiencing from Comaroff. The therapist said she offered to write up “a brief statement acknowledging that we talked about sexual harassment by professors in your department” and the effects it had on Kilburn.
Days later, Kilburn submitted a response to ODR saying her therapist could attest to having conversations about Comaroff’s alleged behavior.
“She is currently on vacation, but I believe she has specific memories of our conversations about misconduct in my department, my concerns about the damage Professor Comaroff could do to my career, and my repeated and unfruitful attempts to get assistance,” she wrote. “She is ready to attest to this when she returns from vacation.”
During an interview ODR conducted with Kilburn on Aug. 28, 2020, Kilburn told ODR that the therapist “should have a bunch of notes or memories for you,” according to ODR’s notes of the conversation.
ODR explained to Kilburn during the interview the process and criteria for including witnesses for investigators to contact, adding that it asks “every single witness if they have documents that are relevant, which we share with you,” per ODR’s notes.
Kilburn, however, wrote in her affidavit that she did not take ODR’s statements during the interview to mean that ODR would seek to obtain records from her therapist. Rather, she assumed the investigators would only ask the therapist whether or not such records existed.
Povich’s affidavit claims that following the interview, Kilburn sent her therapist’s name and email as a witness for ODR to contact. The witnesses’ names and information are redacted in the email from Kilburn that Harvard submitted to the court.
Kilburn noted in her affidavit that she had originally planned to review any relevant materials or statements from her therapist “before deciding whether to submit them to ODR.” But she did not contact her therapist after listing her as a witness.
“I wanted to reach out to my therapist myself, but because I believed that ODR would consider this an improper communication and discredit my therapist’s account, I did not reach out to her,” she wrote.
Povich wrote that she and Shaffer interviewed Kilburn’s counselor in October 2020, and that Shaffer explained to the therapist that ODR would share with both Comaroff and Kilburn any relevant information learned during the interview.
The therapist shared during the interview that she received an email from Kilburn over the summer “asking if I had documentation about what we talked about often,” according to the ODR’s redacted notes of the interview.
Shaffer then asked the therapist if she was willing to provide that documentation, adding that documents sent by the therapist would be shared with both parties if the investigators “think we might rely on it.”
“In transmitting via email I need to comply with HIPAA,” the therapist responded, according to the notes. “I can’t write her whole name. I will change the name of the file.”
The therapist agreed to send entries from two therapy sessions that occured March 2019. ODR then shared redacted versions of the records to Kilburn and Comaroff on Oct. 30, 2020.
Povich wrote in her affidavit that ODR only obtained therapy records from Kilburn’s therapist because Kilburn said her counselor should have notes for ODR and provided her counselor’s information.
“Under the circumstances, I believed that Ms. Kilburn’s therapist could speak to ODR and send ODR the two therapy notes the therapist selected without violating any obligation to Ms. Kilburn,” she wrote.
Kilburn did not complain about the notes at the time because she did not know Comaroff had also received them, according to her affidavit.
In January 2021, Povich met with Kilburn to verbally describe the evidence ODR gathered, as part of normal ODR proceedings. Povich read notes of ODR’s interview with Kilburn’s therapist and told her ODR would then review evidence with Comaroff, according to Povich. Povich wrote in her affidavit that Kilburn did not object to ODR sharing information from witnesses with Comaroff.
Kilburn, however, wrote in her own affidavit that she “felt very upset” at the time upon discovering that ODR and the therapist had discussed the contents of her therapy sessions.
“I had not anticipated that ODR would interview my therapist about the contents of what I shared with her during our sessions,” she wrote. “I was extremely overwhelmed, and did not know how to communicate to ODR that I was not comfortable with the extent to which they had interviewed my therapist.”
Kilburn wrote that she had not seen the unredacted contents of the March therapy notes that her therapist sent to ODR.
In May 2021, ODR emailed Kilburn a draft report containing its findings, noting, “The documents referenced in the draft Report were already provided by you or to you during the investigation, and will be attached as exhibits to the Final Report.”
Though the draft report listed that the two therapy notes from March 2019 had been obtained from a witness in the investigation, Kilburn wrote in her affidavit that the draft report “contained no discussion of the content of [her therapist’s] interview or the progress notes.”
“I concluded that ODR must not have relied on her progress notes or interview to draft the report and that they would therefore not be exhibits to the Final Report,” she wrote.
Kilburn maintains that she only knew that Comaroff had also received her therapy notes when she read Comaroff’s response to the draft report, which questioned her memory due to her PTSD diagnosis.
By the time Kilburn read Comaroff’s response in September 2021, ODR had already released the final report and the deadline for appealing the report had lapsed. Harvard’s Office of Gender Equity denied her request to send more information to the appeals panel.
Because Kilburn claims she never gave written authorization for the release of her medical records and did not intend for Harvard to share them with Comaroff, she argues Harvard violated her right to privacy.
In light of her confusion about what information from her therapist would be shared with ODR and subsequently Comaroff, Kilburn argues Harvard failed to obtain necessary consent from her to utilize and distribute her medical records, which the plaintiffs argue is written authorization.
Samuel Perkins ’70, an attorney based in Boston, wrote in an email that the current filings do not demonstrate that the therapist had authorization to release Kilburn’s medical records.
“ODR itself should have obtained a written confirmation from Ms. Kilburn that she had authorized the therapist to release the therapy notes,” he wrote. “The Kilburn statements Harvard cites at best imply that she may authorize the therapist to release information, but these fall far short of the required explicit permission.”
Harvard spokesperson Rachael Dane declined to comment.
Ellen J. Messing ’72, an employment lawyer with experience handling sexual harassment cases, said written consent for the release of medical records ensures both parties are on the same page.
“People have different understandings of oral communication,” she said. “So the value of written consent is that it’s down there and it’s in black and white, nobody can say there’s some incoherence about the scope of what the patient is agreeing to.”
But Djuna Perkins, the co-founder of the Association of Sexual Misconduct and Discrimination Investigators of New England, said the onus is upon the therapist, not Harvard, to obtain authorization from the patient for the release of medical records.
In addition, she said she believed Harvard arguably had a “good faith belief” they had consent from Kilburn for obtaining her records.
“What’s the point of telling me that the therapist might have specific memories unless you’re also authorizing me to get those memories — whether or not it’s verbal or a written authorization?” she said.
All three experts agreed there seems to be a factual dispute between the plaintiffs and Harvard and that they expect the judge will likely deny Harvard’s motion for partial summary judgment in favor of entering discovery.
—Staff writer Meimei Xu can be reached at firstname.lastname@example.org. Follow her on Twitter @MeimeiXu7.