2016 IL App (1st) 151435 

THIRD DIVISION 

June 1, 2016 

No. 1-15-1435 

IN THE
 

APPELLATE COURT OF ILLINOIS
 

FIRST JUDICIAL DISTRICT
 

OMID SHARIAT RAZAVI, ) Appeal from the 

) Circuit Court of 

Plaintiff -Appellee, ) Cook County. 

) 

v. ) 

) 

EVA WALKUSKI and ARIEL ZEKELMAN, ) 

) 14 L 7669 

Defendants-Appellants, ) 

) 

(SCHOOL OF THE ART INSTITUTE OF ) 

CHICAGO, ) The Honorable 

) Moira Johnson 

Defendant). ) Judge, presiding. 

) 

JUSTICE LAVIN delivered the judgment of the court, with opinion.
 

Presiding Justice Mason and Justice Fitzgerald Smith concurred in the judgment and
 

opinion. 

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 
 

 

 

 

 

 

 

 

No. 1-15-1435 

question of law pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2016). The dispositive 

issue presented for review is: 

¶ 2 "Under Illinois law, does the absolute privilege for reporting crimes to law enforcement 

apply to a college student's report of on-campus sexual violence to campus security, 

particularly when federal law encourages college students to report sexual violence to 

campus security?" 

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. 

¶ 3 BACKGROUND 

¶ 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 

2
 
 

 

 

 

 

 

No. 1-15-1435 

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). 

¶ 6 ANALYSIS 

¶ 7 A. Rule 308 

¶ 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, 133 (2008). Thus, the parties' 

arguments pertaining to the underlying motion to dismiss are outside the scope of our review and 

will not be addressed. Id. Any answer we provide would be an advisory opinion and the courts 

of Illinois do not issue advisory opinions to guide future litigation. In re Estate of Luccio, 2012 

IL App (1st) 121153, ¶ 32. We therefore decline defendants' invitation to use our "inherent 

power" to now reverse the trial court's ruling on the motion to dismiss in the "interests of judicial 

economy." 

¶ 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 

3
 
 

 

 

 

 

No. 1-15-1435 

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 ("[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 

(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 (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. 

¶ 10 B. Absolute Privilege 

¶ 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 

4
 
 

 

 

 

 

 

 

No. 1-15-1435 

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 (2001). 

Accordingly, statements are absolutely privileged when they are (1) made to law enforcement 

officials; (2) for the purpose of instituting legal proceedings. Vincent v. Williams, 279 Ill. App. 

3d 1, 7 (1996). Where absolute privilege is granted, no cause of action for defamation lies 

against the person making the statement even if it is made with malice. Mauvais-Jarvis v. Wong, 

2013 IL App (1st) 120070, ¶ 71. Whether a defamatory statement is privileged is a question of 

law which we review de novo. Zych v. Tucker, 363 Ill. App. 3d 831, 834 (2006). 

¶ 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.

1 Illinois common law has a long policy history of affording absolute privilege to 

individuals who report crimes to further public service and administer justice. See Young v. 

Lindstrom, 115 Ill. App. 239, 245-46 (1904) ("[a]bsolute privilege is confined to cases where the 

public service, or due administration of justice, requires that a party speak his mind freely, and 

no action can be maintained therefor even though the words be false or maliciously spoken"). 

One need not make a dramatic leap in logic to recognize that a campus rape victim might first 

1 In launching his "It's On Us" Campaign to End Sexual Assault on Campus, President Obama noted that "an 

estimated one in five women has been sexually assaulted during her college years" and "of those assaults, only 12 

percent are reported, and of those reported assaults, only a fraction of the offenders are punished." 

5
 
 

 

 

No. 1-15-1435 

report the incident to on-campus security, the most immediately accessible "law enforcement," 

who will then proceed to involve the local police if necessary. In addition, the record also 

suggests that SAIC campus security held themselves out as law enforcement to the school's 

student body. For instance, like police officers, on-campus security departments wear badges 

and uniforms, patrol campus 24 hours a day, prevent crimes from occurring, respond to crimes, 

take statements, and conduct their own investigations. See People v. Gabriel, 2014 IL App (2d) 

130507, ¶ 4 (an on-duty college police officer stopped the defendant for a registration violation 

upon exiting a college parking garage and arrested him when a license check revealed he was in 

violation of an order of protection); People v. Willis, 170 Ill. App. 3d 638, 639 (1988) (a college 

public safety officer was assaulted, by defendant when he responded to an on campus incident 

between the defendant and several students); People v. McDowell, 121 Ill. App. 3d 491, 493 

(1984) (after being sexually assaulted a female victim identified her attacker standing in a class 

registration line and informed the university's security police who then arrested the defendant in 

a classroom); People v. Barber, 70 Ill. App. 3d 540, 543 (1979) (campus police patrolled the 

campus, gathered a description of the defendant rapist from the victim, broadcast the description 

over the radio and later arrested the defendant). Thus, the purpose of a campus security 

department is to protect and provide assistance to its students, as well as uphold the law on its 

campus. 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. 

¶ 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 

6
 
 

 

 

 

 

 

 

 

No. 1-15-1435 

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 (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 

7
 
 

 

 

 

 

 

 

 

 

 

 

No. 1-15-1435 

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.

2 

¶ 16 Next, we consider the second requirement, that the victim made the report for the purpose 

of initiating legal proceedings. Whether any given proceeding is quasijudicial depends upon the 

nature of the proceeding and the powers and duties of the body conducting the proceeding. Zych, 

363 Ill. App. 3d at 835. Six powers have been identified which differentiate a quasijudicial body 

from a body performing merely an administrative function: (1) the power to exercise judgment 

and discretion; (2) the power to hear and determine or to ascertain facts and decide; (3) the 

power to make binding orders and judgments; (4) the power to affect the personal or property 

rights of private persons; (5) the power to examine witnesses, to compel the attendance of 

witnesses, and to hear the litigation of issues on a hearing; and (6) the power to enforce decisions 

or impose penalties. Starnes v. International Harvester Co., 141 Ill. App. 3d 652, 655 (1986). 

With that said, the privilege does not require university proceedings themselves to constitute a 

legal proceeding; rather, even the act of reporting to a police officer does not itself constitute a 

legal proceeding. Instead, it's the State's Attorney, who has the absolute discretion to decide 

2 We note that the Illinois legislature recently enacted the Preventing Sexual Violence in Higher Education Act (Act) 

(Pub. Act 99-426 (eff. Aug. 21, 2015), which requires public universities, public community colleges, and 

independent, not-for-profit or for-profit higher education institutions to adopt a comprehensive policy to address 

student allegations of sexual violence, domestic violence, dating violence, and stalking. In addition, it requires each 

higher education institution, upon being notified of a violation of the comprehensive policy, to provide the student 

survivor with a concise notification of the survivor's rights and options, including "the survivor's right to request and 

receive assistance from campus authorities in notifying law enforcement" and "request interim protective measures 

and accommodations." (Pub. Act 99-426, § 15 (Aug. 21, 2015). This may include: "changes to academic, living, 

dining, working, and transportation situations, obtaining and enforcing a campus-issued order of protection or no 

contact order." Pub. Act 99-426, § 15 (Aug. 21, 2015). All of which requires campus security knowing the identity 

of the perpetrator to enforce. Further, each higher education institution must adopt one procedure to resolve 

complaints of student violations. 

8
 
 

 

 

 

 

No. 1-15-1435 

whether to file charges in any particular case. Reichert v. Board of Fire & Police 

Commissioners, 388 Ill. App. 3d 834, 849 (2009). In the context of reports to traditional law 

enforcement, courts presume that statements are made for the purpose of constituting legal 

proceedings, notwithstanding a defamation plaintiff's claim that the statements were false, 

maliciously motivated or made for a purpose unrelated to the institution of legal proceedings. 

See Morris v. Harvey Cycle & Camper, Inc., 392 Ill. App. 3d at 404-06 (collecting cases and 

refusing to modify Illinois' absolute privilege to exempt from its scope reports made to law 

enforcement with an ulterior motive). We see no reason to depart from this rationale and require 

courts to make a determination of fact as to the reporter's subjective intent when reports of sexual 

violence are first made to campus security. 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. Accordingly, we answer the certified question by stating that 

statements to campus security are absolutely privileged. Upon remand, the trial court shall 

consider this answer when ruling on any dispositive motion. 

¶ 17 CONCLUSION 

¶ 18 Certified question answered; cause remanded. 

9