Sexual Misconduct Disciplinary Process Alienates Accused

Katherine Cusumano and Tonya Riley

April 24, 2013

Peter, a 2011 graduate of the University, saw his life turned upside down when a woman he had dated filed a sexual assault complaint against him with the Department of Public Safety in fall 2008.

“I knew the relationship had gotten rocky,” said Peter, whose name has been changed to maintain confidentiality.

The woman, who was living with several of Peter’s closest friends at the time she made the accusation, had been diagnosed with depression, anxiety and attention deficit disorder — all of which took a toll on their interactions, he said.

But Peter said he did not know she perceived any of their sexual encounters as assault until she filed the complaint, which did not cite a specific incident.

The voice of the accused perpetrator can remain unheard in discussions of sexual assault on college campuses. Judicial systems for sexual misconduct at universities must navigate the boundary between attentiveness to alleged victims — who can require a system that supports coming forward — and fairness to accused perpetrators, for whom the trial process also has psychological, social and academic ramifications.

Due process?

Offenses that may result in a “transcript remark” or expulsion — such as sexual misconduct — may be brought before the Student Conduct Board, according to the Office of Student Life website.

If found guilty of sexual misconduct, a student may face probation, suspension or expulsion, said Margaret Klawunn, vice president for campus life and student services.

The OSL sends an accused student a letter stating a complaint was made against him or her, Klawunn said. The letter outlines the allegations, which indicate a possible violation of the Student Code of Conduct.

Both the accuser and the accused consult with Terry Addison, associate dean for student life, about how the system works, Klawunn said. Both can work with an additional support dean who monitors their academic and emotional progress, Klawunn said.

The SCB comprises 26 University community members. Out of that group, each case is heard by a faculty member, a dean and a student of the same status as the accused perpetrator — undergraduate, graduate or medical, according to the OSL website.

The faculty members are selected by the Faculty Nominating Committee, the deans by Dean of the College Katherine Bergeron and the students by the Undergraduate Council of Students, said Yolanda Castillo-Appollonio, associate dean for student life.

After they are approved by UCS and the OSL, undergraduates on the board are taught about the judicial process, the cases they may face and the sensitive nature of student conduct hearings, said Anthony White ’13, UCS president.

Before the 2010-11 academic year, when the University last revised its student conduct procedures, accused perpetrators could choose to undergo a hearing in front of one administrator or the SCB, which had a greater number of members. This made it harder for the SCB to maintain confidentiality, so most students chose administrative hearings, Klawunn said.

Peter said he planned to go before the SCB instead of an individual administrator because he said he did not trust one person to handle the case. But Peter’s accuser ultimately did not follow through with the charges, and the case was never brought to hearing.

Adam Goldstein, an attorney at the Student Press Law Center, said panels can still be an unfair trial mechanism because they lack guidance from a judge. Jacy, a former undergraduate who was expelled his sophomore year and whose last name has been withheld to maintain confidentiality, said he felt the voices of adult members of the board overshadowed the student’s.

“I wish the student had been more of an influential force since they have such a valuable perspective, being a student and trying students,” Jacy said.

At the beginning of his sophomore year, Jacy learned a woman he dated during his first year had accused him of sexual harassment, reporting that after she rejected his advances one night, he had verbally harassed her and masturbated in the bed they were sharing, he said.

Guilty until proven innocent

The SCB uses a “preponderance of evidence” standard to determine guilt in sexual misconduct cases, Klawunn said.

Preponderance means evidence demonstrates anything greater than a 50 percent chance of guilt, said Will Creeley, director of legal and public advocacy at the Foundation for Individual Rights in Education.

Sexual assault complaints often lack sufficient evidence to prove guilt beyond a reasonable doubt, which is the standard for criminal courts, Klawunn said.

In 2011, the U.S. Departmet of Education released a statement, known as a “Dear Colleague” letter, calling on colleges and universities to use preponderance in determining guilt for sexual misconduct cases. The letter is related to federal Title IX codes, which are designed to preserve gender equity in higher education.

Universities that receive federal funding are required to enforce Title IX policies, but how they incorporate the standard of preponderance varies, Creeley said.

At Princeton, the Faculty-Student Committee on Discipline hearing the case must be presented with “clear and persuasive” evidence according to the university’s website. Harvard’s Administrative Board must be “sufficiently persuaded” of guilt in disciplinary hearings, according to its website.

Before the “Dear Colleague” letter, schools could choose their own internal regulations for determining guilt, but Brown has always used the preponderance standard, Klawunn said.

The letter was meant to make sexual assault cases easier to prosecute but did not ask whether universities were equipped to try cases, Goldstein said. It made colleges the primary source of adjudication, rather than encouraging them to work with the police.

The preponderance standard requires so little evidence it is virtually meaningless, Peter said.

Peter said his accuser did not report any specific facts of her alleged assault to the University.

“She never gave a date, a time, a place, a ‘how,’” he said. “She just said that things got aggressive at times.”

Jacob, whose name has been changed to maintain confidentiality, was assaulted by a male student at the beginning of his first year at the University. He said because his account of the incident differed from his perpetrator’s, the hearing took an approach of “we know something happened, we need to figure out exactly what.” The accused perpetrator agreed nonconsensual sexual contact had occurred, but his account of the specifics differed from Jacob’s.

“We’re going on the students, what their perception and what their truth is,” said Associate Athletic Director Carolan Norris. Norris has worked with accused perpetrators and alleged victims of student conduct violations, including sexual misconduct, for 10 years.

No contact

In some cases, the accused perpetrator may be moved out of a residence hall or away from campus entirely.

“If there is a concern about the safety of the community, we can do an emergency removal before a hearing takes place,” Klawunn said, adding that this is not a common occurrence.

Jacy said he was asked to move into off-campus University-owned housing the same day he found out about the accusation, though he was not informed of what the accusation entailed. Within the same week, the University bought him a plane ticket home during the investigation, he said.

Students on either side can request a no-contact order in consultation with administrators in the OSL, Castillo-Appollonio said. The duration of the order, which prohibits involved parties from communicating in person, over the phone or online, varies on a case-by-case basis, she said. The student who requested the order can come forward when he or she feels it is no longer necessary, she said.

Peter filed for a no-contact order after he met with Addison to discuss the complaint. Shortly after, his accuser also requested one.

Peter said because his accuser was so enmeshed in his friend group, it was difficult to avoid her. If Peter arrived at a social gathering where she was already present, he would have to leave.

Seeking counsel

After the OSL decides a sexual assault case will go to hearing, students receive information about the process and are asked to select an adviser from a list provided to them, said Gail Cohee, director of the Sarah Doyle Women’s Center.

Though students are presented with the list of advisers, they may also choose a person with whom they are more intimately acquainted, Klawunn said. A chosen adviser must be “a full-time faculty or staff member” and cannot be an attorney, according to the OSL website.

Because student conduct hearings examine violations of the internal code of conduct and the respondent’s status within the University, attorneys are not allowed to speak on behalf of either party, said Allen Ward, senior associate dean for student life.

“We don’t want attorneys to start running the University process,” Klawunn said.

The Rhode Island American Civil Liberties Union has a number of concerns about due process in the University system, including its limitations on students’ use of lawyers, but the University’s status as a private institution means these concerns do not violate the U.S. Constitution, said Steve Brown, executive director of the R.I. ACLU.

But students often hire attorneys to advise them on what they should not say in a University hearing because it could affect a criminal trial, said Gretchen Willis, director of dining services, who has worked as an adviser for 10 years. The evidence provided in an SCB hearing can be subpoenaed if formal charges are filed in state court, Klawunn added.

If a student accused of a capital or life offense cannot afford an attorney, that person can consult with Len O’Brien ’68, an attorney who advises Brown students for free. O’Brien can help students find attorneys who will take their cases pro bono, Klawunn said.

After hearing about the DPS complaint, Peter contacted Michael Burch, a former assistant wrestling coach and Peter’s coach at the time, to talk about how to respond. Burch was also William McCormick III’s adviser during the highly publicized sexual misconduct complaint filed against him in 2006.

Advisers assist students with preparing witnesses and other forms of evidence for the hearing, Cohee said.

The advisers on the OSL list undergo annual training, which incorporates lessons on the conduct code, the judicial process and what kind of cases may be brought up, Klawunn said.

This training is carried out by deans, the General Counsel’s office, Health Education staff members and the sexual assault prevention coordinator, and it is the same for advocates of alleged victims and advisers of accused perpetrators, Klawunn added.

Most advisers have worked at the University for a long time and are familiar with the system, Norris said.

But advisers selected outside the prepared list have not undergone such training — while no person goes into a hearing completely blind, these people only meet with Addison to discuss the process, Klawunn said.

Burch said he received no effective training — the policies and links provided by the OSL intended to guide him were vague, he added.

“I remember emailing asking for policies about my role, and they were really at a loss,” he said.

When Peter’s ex-girlfriend brought charges against him, Burch advised him to respond with a slander complaint because Peter maintained his innocence, Peter said.

Peter said he briefly consulted with an attorney but never needed to hire one himself.

“I wasn’t going to win anything,” he said. “The only thing I ever wanted was that written apology and retraction of the charge.”

Navigating the hearing

Though his case ultimately never went to the SCB, Peter said he was excited by the prospect of a hearing because it could finally bring closure to the case.

“All I wanted was a firm resolution,” Peter said. “I wanted results.”

An accused student is allowed one in-person character witness at a hearing, but he or she can have others submit written statements defending his or her personality, Ward said. Other witnesses can include those who may have information about the case, Ward added. There is no limit on non-character witnesses.

“It was just a popularity contest,” Jacy said of his hearing.

“Every witness who came in would say something like, ‘Oh, this girl told me what happened. I think Jacy is a terrible person. I think he should be removed from campus,’” he said, adding that he felt the discussion focused on his character more than on the facts of the case.

Per University policy, both the complainant and respondent may appeal hearing results regarding sexual assault. Before the policy was revised two years ago, only the respondent could appeal the SCB’s decision, Ward said.

Into the courts

Though less frequent, cases of sexual assault are sometimes prosecuted by outside authorities. When an assailant is criminally charged, the Providence Police Department puts out an arrest warrant for the suspect, said Chris Rotella, a detective with the Providence Police Special Victims Unit.

There are three levels of charges for sexual assault — first-degree, second-degree and third-degree. Penetration is a first-degree, capital offense, for which reason the accused is denied bail, he said.

If there is insufficient evidence to immediately make an arrest, detectives speak with both parties and use their discretion to determine if charges can be brought, Rotella said. Suspects can go to hearing any time within 10 days of being arrested.

Cohee said it is difficult to get a case accepted by the Attorney General’s office for trial.

If students are found guilty of sexual misconduct, they can be suspended or expelled from the University.

If suspended, a student must petition to return to the University after a given amount of time, often with additional terms including counseling, Klawunn said.

If a perpetrator returns to campus following a suspension, the charge remains confidential, but the victim is notified of his or her return, she said.

Though Rotella has dealt with false accusations, few come from college students, he said.

False claims of sexual assault comprise around a small fraction of accusations — around 2 percent, said Rebecca Loya, post-doctoral research associate in public policy.

A gray area

In cases of sexual assault, the parties are usually acquainted, Rotella said.

“That’s where the line gets blurred for them — that maybe they don’t understand, or it’s not really rape, it’s a hookup gone wrong,” said Sandy Malone, coordinator of prevention education at Day One Rhode Island, a sexual assault advocacy nonprofit serving Rhode Island.

“It sort of brings in that really uncomfortable gray area of maybe for me it was a sexual assault, but for him it was just hooking up,” said Anna, whose name has been changed to maintain confidentiality. During her first week at the University, Anna was pushed by a sophomore male to have sex with him, and when she refused, to give him oral sex. She said she thinks the student still does not know she considers their encounter an assault.

Accusations of sexual assault profoundly affect those charged, said Belinda Johnson, director of Psychological Services.

Accused perpetrators of sexual assault — like any student — have the same access to Psych Services as their accusers do.

“It’s very anxious on both sides of whatever the issue is,” Norris said. “They’re concerned about how it’s going to affect their education at Brown.”

Peter said being accused of sexual assault changed how his friends related to and perceived him.

“All of the sudden, the guys who used to be my friends … I could no longer call them,” Peter said, adding that former friends called him “f***ing rapist.”

Before his accuser filed charges, Peter said one of her roommates, who was also his friend, confronted him saying, “I hear you raped our roommate, you’re not welcome in our house anymore.”

“I could never say, ‘Hey, is anybody looking out for me?’” Peter said.

SCB hearings and sexual assault accusations more generally take a profound toll on those involved. The final installment in this series examines the long-term impact of sexual assault on victims.

 Source: http://www.browndailyherald.com/2013/04/24/sexual-misconduct-disciplinary-process-alienates-accused/