After a federal judge expressed apprehension earlier this month over the University’s decision to handle a rape allegation internally without notifying law enforcement, representatives from a students’ rights organization and a sexual assault victims’ advocacy group have both criticized universities’ practices in handling rape cases. Both a current and a former University employee have questioned Brown’s ability to investigate and adjudicate rape cases.
But universities are in a difficult position. According to guidelines set forth by the Department of Education’s Office for Civil Rights, Title IX mandates that in cases of sexual misconduct, universities take “prompt and effective action calculated to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects.”
An ad hoc University committee charged with reviewing Brown’s disciplinary system issued a report in 1997 refuting the argument that the University was not suited to hear sexual misconduct cases and stating that declining to do so would “send a chilling message that there are a range of actions for which the University may not hold the perpetrator accountable.”
And a policy requiring administrators to notify the police of rape allegations could discourage reporting of sexual assault, an already underreported crime, according to a February report by the Center for Public Integrity.
Brown itself has had a controversial history of mishandling and allegedly mishandling sexual assault allegations, including William McCormick III’s current lawsuit against the University for its conduct concerning a 2006 rape accusation against him — which prompted Rhode Island District Federal Court Judge William Smith’s concern about lack of police notification.
Pitfalls of trying cases internally
Citing the failure of universities to provide proper protection to victims or, conversely, to afford the accused due process, representatives from both the Rape, Abuse and Incest National Network and the Foundation for Individual Rights in Education have said that sexual assault investigations should be handled by the police rather than universities.
“Universities and colleges are not equipped to handle allegations of rape and sexual assault,” said Elizabeth Crothers, communications manager for the Rape, Abuse and Incest National Network.
“Overwhelmingly, victims are not well served by these internal processes,” Crothers said. College administrators are “most likely not trained in the intricacies of this crime” and too often treat sexual misconduct “like an overdue library book,” she said.
But Crothers said her organization does not have a stance on changing the law to require universities to report alleged sex crimes when they become aware of them. She called the issue “complicated” and said the decision to report a sex crime to the police is “always up to the victim.”
“We encourage victims to report to the police” and “to get forensic rape kits done,” she said. But “a rape kit is a very lengthy, invasive procedure” and, again, “it’s really up to the victim and the victim alone,” she said.
Both Crothers and Azhar Majeed, associate director of legal and public advocacy for the Foundation for Individual Rights in Education, said that universities do not do a better job protecting victims’ identities than police and the courts.
“You can carry out a prosecution without revealing the identity of the accuser,” Majeed said.
Majeed said universities are not equipped to handle difficult “he-said-she-said allegations” with “very serious repercussions both for the alleged victim and the accused individual.” Law enforcement has the “necessary expertise and background” while university officials do not, he said.
According to Majeed, universities frequently do not provide full due process to the accused, and often operate with a less rigorous standard of evidence than the legal system, which requires accusations to be proved beyond a reasonable doubt.
He called the McCormick case “bizarre” and said it represents “an extreme example” of a university treating an accused student “without any due regard for his rights.”
“The University and its officers have acted appropriately in this matter,” Vice President for Public Affairs and University Relations Marisa Quinn wrote in an e-mail to The Herald April 12. “As in all instances, the University respects and maintains the confidentiality of student and employee records.”
Quinn did not comment for this article.
A controversial history
McCormick’s case is not the first to bring criticism to Brown for its handling of sexual misconduct allegations.
In 1996, a special late-semester edition of The Herald revealed the suspension of Adam Lack — who was then a member of the class of 1997 but did not graduate until years later — for sexual misconduct. A picture of Lack with his name ran on the front page.
The alleged victim, Sarah Klein ’99, said she was intoxicated and could not remember if she had given Lack consent to engage in sexual intercourse. Lack claimed that Klein had initiated intercourse, engaged in lucid conversation and given him her phone number the next day, and that he did not know she was intoxicated.
Associate Professor of Music David Josephson suspected Lack had been treated unfairly and became both his adviser and public advocate, helping to attract media attention to the case.
That attention included a disorderly on-campus confrontation between ABC’s John Stossell — who was filming an episode of 20/20 — and Klein’s supporters over the definition of rape.
Josephson said there was a “regime of fear” on campus surrounding the issue of sexual assault that discouraged anyone from advocating on behalf of accused students. He pointed to the spring 1997 issue of the campus publication “Issues,” in which Vice President for Campus Life and Student Services Margaret Klawunn, then director of the Sarah Doyle Women’s Center, said that men advocating for Lack “are afraid that they have already been or will be the next Adam Lack. Many men see themselves as potentially in that situation or have already been in that situation. This case has become a magnet for men who have skeletons in the closet.”
Since then, Klawunn has worked in and overseen the Office of Student Life, which is responsible for dealing with allegations of sexual misconduct on campus. Klawunn, who is named as a defendant in McCormick’s lawsuit, agreed to an interview with The Herald, but later cancelled it. She did not respond to questions then sent to her in an e-mail.
Lack — who died in 2008 in a car accident — was eventually exonerated by the University and went on to file a lawsuit against Brown and his accuser. The suit resulted in a settlement, the terms of which are secret.
A 1997 University news release about the settlement states “Brown University regrets that its disciplinary system was unable to resolve the dispute between the parties satisfactorily.”
Josephson said he expected that a university would not insist that the settlement’s terms be secret and that it would issue a public apology. Instead, Brown “sounded like a bloody corporation,” he said.
Not long after the Lack case hit, in the fall of 1996, Brown again drew criticism for its handling of a sexual assault allegation. The University Disciplinary Committee declined to hear a female student’s complaint of sexual assault against a male student, citing the complexity of the evidence. The male student, her ex-boyfriend, was a relative of Jordan’s royal family whose father had donated money to the University. The UDC’s decision led to an investigation by the Department of Education’s Office for Civil Rights. According to a 1997 University press release, the investigation was later dropped at the request of the parties.
McCormick to the present
The ad hoc committee to review Brown’s disciplinary proced
ures was convened in the aftermath of these two cases, though according to Josephson, the University never acknowledged a relationship between the Lack case and the committee’s creation.
The committee’s findings reaffirmed the UDC’s right to decline to hear a case, sought to “distinguish the UDC from courts of law” and made several procedural recommendations, including instituting a consistent standard of a “preponderance of evidence” needed for conviction.
Josephson — who believes allegations of student misconduct that rise to the level of a crime should be handled by police — called the recommendations “band-aids on a severely wounded animal.”
Josephson said he thought that the Office of Student Life would begin to handle sexual assault cases differently after Lack’s episode, but he said McCormick’s experience “stinks of the Adam Lack case.” In the fall of 2006, Josephson was briefly involved with McCormick’s disciplinary proceedings at the request of Michael Burch GS, a former assistant wrestling coach who acted as McCormick’s adviser in the disciplinary process.
In September 2006, Josephson wrote a letter that was forwarded to University administrators involved in McCormick’s case stating that there had been “no equal treatment” of McCormick and his accuser because he had been removed from campus while she had not been. He wrote that McCormick suffered a “punitive process” before a hearing had taken place.
According to Brown’s non-academic disciplinary procedures, a student is “assumed not responsible of any alleged violations unless he/she is so found through the appropriate disciplinary hearing.”
In another September 2006 e-mail, Josephson criticized a decision by the Office of Student Life not to allow a pair of boxer shorts allegedly worn by the female student at the time she said she was raped by McCormick to be admitted as evidence, but to allow witnesses to make references to the boxer shorts in testimony.
The Herald is withholding the name of the female student because she may have been the victim of a sex crime.
Burch said he had requested the shorts from the University in order to have them tested, but the request had been denied. The University’s non-academic disciplinary procedures do not include a policy on the use of forensic evidence in disciplinary matters.
Last fall, Burch resigned his position as assistant wrestling coach. He said he decided to leave the program due to the University’s handling of the McCormick case as well as a subsequent case in which he advised another student accused of rape by the daughter of a University alum and fundraiser.
In his letter of resignation, Burch wrote of the McCormick case, “All levels of the Brown University administration neglected their basic responsibilities, trading in service to students for the protection of the University’s image and their own job security.”
In March, the Office of Student Life recommended changes to the University’s sexual misconduct policy that would separate offenses into two categories. One would encompass behavior that “involves non-consensual physical contact of a sexual nature” and the other behavior that “includes one or more of the following: penetration, violent physical force or injury.” Conviction for the latter would generally result in expulsion, according to the recommendations.
It also recommended the creation of an “Office for Student Conduct” that would deal with both academic and non-academic violations.