Justice LAVIN delivered the judgment of the court, with opinion.
¶ 1 This interlocutory appeal arises from a defamation action that plaintiff Omid Shariat Razavi filed against defendants Eva Walkuski and Ariel Zekelman. Pursuant to section 2-619.1 of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 2014)), defendants filed a combined motion to dismiss which the trial court denied. Thereafter, defendants filed a motion to certify a question of law pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016). The dispositive issue presented for review is:
Based on the following, we find that the absolute privilege applies to statements that are made to campus security for the purpose of initiating legal proceedings.
¶ 4 We recite only those facts necessary to answer the certified question. The plaintiff and defendants were students at the School of the Art Institute (SAIC), a private institute of higher education located in Chicago, Illinois. Defendants met plaintiff in the fall of 2011, when all three were living in an SAIC dormitory. In September 2013, Walkuski reported to the SAIC campus security director that plaintiff had sexually assaulted her on several occasions and was also stalking her. SAIC's campus security director then escorted Walkuski to the Chicago Police Department (CPD) where she filed an incident report pertaining to the sexual assault and stalking. She also obtained a "plenary stalking no contact" order against plaintiff. Zekelman also reported to SAIC Campus Security that plaintiff had sexually assaulted her, but later withdrew her complaint. Thereafter, a disciplinary hearing was held to consider Walkuski's complaint against plaintiff and the SAIC student conduct board found the allegations to be credible. Subsequently, plaintiff was expelled from SAIC.
¶ 5 On July 22, 2014, plaintiff filed a defamation action against defendants and SAIC. In pertinent part, plaintiff alleged separate counts of defamation per se and defamation per quod against Walkuski for falsely reporting to SAIC campus security that plaintiff had sexually assaulted and stalked her. Plaintiff alleged separate counts of defamation per se and defamation per quod against Zekelman for falsely reporting to SAIC campus security that defendant sexually assaulted her. In response, defendants filed a combined motion to dismiss contending that their reports to SAIC campus security were absolutely privileged because the reports were made to law enforcement personnel. The circuit court denied defendants' motion, finding that whether the absolute privilege applied to reports of sexual violence made to campus security was a question of first impression in Illinois. Thus, the trial court certified the question at issue pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016).
¶ 8 We initially observe that a Rule 308 appeal is limited to answering a certified question of law and is not intended to address the application of the law to the facts of a particular case. Walker v. Carnival Cruise Lines, Inc., 383 Ill.App.3d 129,
¶ 9 The certified question asks whether campus security should be considered law enforcement for purposes of an alleged victim's report of sexual violence on campus. Before answering the question, we note that the parties have extensively briefed the potential effect of the SAIC student handbook's specific policies regarding the reporting of sexual assault and the administrative ways of handling such reports, but a detailed examination of these factual matters is outside the purview of our limited role here. Plaintiff has also made various arguments regarding statements that were made in the course of the SAIC investigation to personnel who were not employed within the campus security department. Specifically, plaintiff argues that these statements were not privileged, and thus, this appeal will not materially advance litigation. In our view, all of these fact-based arguments are 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. See Belluomini v. Zaryczny, 2014 IL App (1st) 122664, ¶ 26, 379 Ill.Dec. 575, 7 N.E.3d 1 ("[a]n investigation is a continuum and it defies rational thinking to isolate certain portions of the investigation in order to apply different levels of privilege"); Morris v. Harvey Cycle & Camper, Inc., 392 Ill.App.3d 399, 404, 331 Ill.Dec. 819, 911 N.E.2d 1049 (2009). ("[d]efamatory statements that would otherwise be actionable will escape liability when the conduct is to further an interest of social importance such as the investigation of an alleged crime"). Based on the record before us, we further find that plaintiff has waived any such consideration by failing to object at the time that the question was certified in the trial court, or in the alternative, file an objection to defendants' Rule 308 petition for leave to appeal. See Mabry v. Village of Glenwood, 2015 IL App (1st) 140356, ¶ 15, 397 Ill.Dec. 97, 41 N.E.3d 508 (it is a well-settled principle that arguments not raised before the circuit court are forfeited and cannot be raised for the first time on appeal). As a result, we will not consider these arguments.
¶ 11 For our purposes, the only necessary factual information from the handbook is that victims of sexual assault and/or stalking were encouraged to either report the incident to the local police or campus security. Defendants chose the latter option. Plaintiff acknowledges that absolute privilege would attach to any statements made to local law enforcement, but contends that statements made to campus security should expose defendants to liability for defamation. We disagree and hold that absolute privilege extends to statements made by alleged campus crime victims to campus security.
¶ 12 Privilege is an affirmative defense that may be raised in a motion for involuntary dismissal of a defamation action. Hartlep v. Torres, 324 Ill.App.3d 817, 819, 258 Ill.Dec. 389, 756 N.E.2d 371
¶ 13 Although there is not a reported Illinois case that has addressed this specific factual scenario, we believe that the underlying rationale for the privilege as well as the public policy of helping prevent sexual assault on college campuses warrants treating campus security as law enforcement.
¶ 14 Further, a contrary policy would surely have a chilling effect of deterring victims from reporting a crime of sexual violence for fear that retaliatory legal action may be taken against them. Moreover, it is manifestly counterintuitive to penalize a victim for reporting an alleged incident of on-campus sexual violence to her security department. 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.
¶ 15 We also find support in a case in which the Indiana Supreme Court extended an absolute privilege to two students' reports of sexual harassment to their university. Hartman v. Keri, 883 N.E.2d 774 (Ind.2008). In Hartman, two students filed complaints alleging their professor had sexually harassed them pursuant to their university's anti-harassment policy. Id. at 775. Upon receipt of the complaints, the university conducted an investigation, similar to the one conducted by SAIC, and ultimately removed the professor from his position. The professor then sued the students alleging libel and slander. The Indiana Supreme Court acknowledged that Indiana law afforded only a qualified privilege to statements to law enforcement. Id. at 776. In recognition of federal and state policies addressing sexual assault on campuses, however, the court held that student reports of sexual assault and harassment are protected by an absolute privilege. Id. at 779. The Hartman court reasoned that students should be encouraged to come forward and report incidents and "[p]rotecting their complaints with anything less than an absolute privilege could chill some legitimate complaints for fear of retaliatory litigation." Id. at 778. The court further noted the university had an "interest in assuring a proper educational environment" and false reporting is deterred by the university's policy which academically disciplines a student for false reporting. Id.; Cf. Mauvais-Jarvis, 2013 IL App (1st) 120070, ¶ 88, 370 Ill.Dec. 98, 987 N.E.2d 864 (this court declined to extend absolute privilege to an associate professor who brought a defamation action against Northwestern University, distinguishing Hartman by noting that "the university's process for reporting and investigating allegations of sexual misconduct, significantly differ[ed] from Northwestern's research and misconduct proceedings" and "there is no equivalent punishment for a researcher who falsely reports scientific misconduct"). We further observe that contrary to plaintiff's assertion whether or not a university is private or public is irrelevant. Public policy dictates that victims who report sexual crimes should be treated synonymously and we cannot expect a distressed private university student to first consider the legal intricacies based on her type of university to evaluate the best course of action before getting assistance.
¶ 18 Certified question answered; cause remanded.
Presiding Justice MASON and Justice FITZGERALD SMITH concurred in the judgment and opinion.