University News

Federal complaints filed against U. in sexual assault case

Lena Sclove '15.5 alleges U. violated Title IX, Clery Act provisions

By and
Metro Editors
Friday, May 23, 2014

Updated May 23, 2014 at 3:17 p.m.

Legal Momentum, a nonprofit advocating for women’s legal rights, has filed complaints with the U.S. Department of Education against the University for alleged violations of Title IX and the Clery Act on behalf of Lena Sclove ’15.5, who was allegedly raped by another Brown student last summer, the organization announced Thursday.

The complaints claim that the University improperly handled Sclove’s administrative action and failed to inform her of her rights as a sexual assault victim under these two federal statutes.

Christina Brandt-Young, Sclove’s attorney, formally filed the Title IX complaint May 14 and the Clery Act complaint Thursday. Brandt-Young, a senior staff attorney at Legal Momentum, is representing Sclove pro bono, Sclove said. 

Sclove told The Herald she decided to bring the case to the Education Department because it has “the investigative power to get an honest portrait of what has happened.”

Title IX and the Clery Act are two federal statutes enforced by separate offices within Education Department that present guidelines for handling on-campus sex-based discrimination, sexual assault and rape for colleges and universities receiving any type of federal funding.

The Office for Civil Rights receives and investigates complaints for violations of Title IX, which prohibits sex discrimination on college campuses. The law requires that schools “take immediate action to eliminate the harassment, prevent its recurrence and address its effects,” the Obama administration announced via a “Dear Colleague” letter issued by the OCR in 2011.

Violations of the Clery Act, which calls for the public disclosure of information and statistics about crimes committed on or near college campuses, are submitted to the Federal Student Aid Office. The act also contains the Campus Sexual Assault Victims’ Bill of Rights, which requires universities to inform victims of the importance of preserving evidence following an assault and their rights and options for seeking disciplinary action or pursuing criminal charges.

Complaints can be filed by any individual given evidence a university has violated provisions of Title IX or the Clery Act.  Title IX complaints — filed for personal discrimination or on behalf of another individual or group — must be made within 180 days of the alleged incident of discrimination, according to the OCR.

Marisa Quinn, vice president for public affairs and University relations, wrote in an email to The Herald that the University had not been informed of the complaints when contacted by The Herald Thursday afternoon. Two administrators involved in the disciplinary process following Sclove’s alleged assault — Margaret Klawunn, interim dean of the College and vice president of campus life, and J. Allen Ward, senior associate dean for student life — could not be reached for comment on the charges.

The University recognizes “the seriousness of our obligations under the Clery Act and Title IX,” Quinn wrote. “As was noted in President (Christina) Paxson’s May 2 letter, our goal is to move Brown to a position of national leadership for prevention, advocacy and response to issues of sexual assault. … We are proceeding with several important new initiatives and more are forthcoming.”

The Education Department cannot confirm whether it received Sclove’s Title IX complaint due to departmental policy, wrote Jane Glickman, press officer for the OCR, in an email to The Herald, adding that as of May 14, the University was not under any investigation.

If the department opens an investigation on Sclove’s Title IX complaint, “we will inform the institution, the complainant and the public as appropriate,” Glickman wrote.

Sclove said the complaints filed for violation of Title IX stem from the University’s alleged failure to “issue an adequate sanction” and to ensure that administrators were equipped with the proper skills and knowledge to effectively address Sclove’s alleged assault, according to a Legal Momentum press release. The Title IX complaint was filed as a class action suit to permit other survivors of sexual assault in the Brown community to join the complaint, Sclove said.

The Title IX complaint alleges that, throughout the disciplinary process, the University also “failed to remedy the hostile environment” created by the assault by issuing a mutual no-contact order. The Education Department’s “Dear Colleague” letter suggests that a no-contact order should be one-sided, and be issued by “directing the harasser to have no further contact with the harassed student,” according to the complaint.

“Even after finding the respondent responsible for violent sexual misconduct charges, Brown failed to impose a real sanction or to take appropriate measures to ensure Lena’s safety and those of others on campus,” Carol Robles-Roman, president and CEO of Legal Momentum, said in the press release.

In the case of a violent assault like Sclove’s alleged rape, adequately responding to the hostile environment created by the assault under Title IX would require “imposing the maximum penalty” outlined in the Code of Student Conduct, Sclove said.

Daniel Kopin, a former member of the class of 2016 and Sclove’s alleged perpetrator, was found responsible by the University for four violations of the student conduct code — including violent sexual misconduct.

Despite these findings, her alleged assailant ultimately received a one-year suspension, Sclove first announced in an April 22 press conference outside the Van Wickle Gates.

The Clery Act complaint claims the University failed to inform Sclove of the importance of preserving evidence of the alleged crime and her right to seek justice through notifying both University administrators and law enforcement authorities.

Legal Momentum’s complaint also alleges that the University violated the Clery Act by directing Sclove through the Brown Sexual Assault Response Line solely to Health Services, which tested her for sexually transmitted infections and provided emergency contraception, but did not perform a physical examination or document any evidence of sexual assault. Legal Momentum also claims the University failed to make Sclove aware of her right to file both a disciplinary complaint with the University and take criminal action, according to a press release issued by the organization.

Under the Clery Act, administrators must make clear to students that they may choose to seek both university disciplinary and criminal outcomes, Brandt-Young said, adding that the options “are not mutually exclusive.”

Compliance with the Clery Act can be a difficult task for universities given that they must convey the mandated information to traumatized victims, Brandt-Young said. But she said it is not sufficient to have the necessary information available “on a website somewhere,” adding that universities must convey the victim’s rights and options verbally and in writing to students who may be traumatized or in shock.

Glickman confirmed that the Education Department has received the Clery Act complaint.

Sclove said she does not plan return to campus in the fall, despite Kopin’s decision not to return to the University, which he announced last month via a statement from his attorney.

“It’s too hard to negotiate my return in the fall with the same people who failed to keep me safe,” Sclove said, adding that after a semester-long medical leave, her health is still poor as a result of her alleged assault.

“More is at issue than just Lena’s case,” Brandt-Young said, adding that their complaints call for the Education Department to investigate more generally how sexual assault is handled at Brown.

Sclove’s complaints come after Paxson’s May 2 announcement that the University will immediately seek to hire a full-time Title IX coordinator and will launch a sexual assault task force to begin work in the fall.

The complaints are “really about holding the school accountable for what they’re saying they’re going to do,” and ensuring that the University’s plan is “really enough to combat the problem,” Sclove said.

If the Education Department proceeds with an investigation following Sclove’s complaint, Brown could join 55 U.S. colleges and universities with open Title IX inquiries against them as of May 14, according to a list released by the OCR. The Washington Post reported this week that the number of schools under investigation has grown to 60 since the list’s release.

  • Anonymous

    Less than 10% of Title IX investigations actually result in action against the university:
    http://chronicle.com/article/Promise-Unfulfilled-/146299/
    I suppose including this fact would have made a less sensational story. Or a better researched one.

  • Joe Onset

    Under the federally mandated Title IX 50.01% “preponderance of the evidence” requirements, having consensual sex after having had one beer apiece constitutes a violation and leads to a determination of “sexual misconduct” under the “penetration” category. This is 100 light years away from rape. I can almost guarantee that 99% of the outspoken Internet lemmings in this matter have no idea that that is the case, and opine out of ignorance.

    • Facts please

      nope, false. If one has consensual sex, then it cannot be misconduct. The definition of misconduct is non consensual contact.

      • Joe Onset

        Ah, yes. But…. If one has had alcohol, it is impossible to give consent under the Title IX guidelines. So all college students who engage in intercourse after even one drink are guilty of sexual misconduct under the Title IX guidelines. That’s why these cases must be evaluated with a full knowledge of the facts. Which few are doing in this case.

        All facts considered, this is not a case of rape, no matter how much Lena would like it to be so, and how much publicity it is giving her. Simply false. It’s fits well into her neuvo- activist image, of course.

        • Facts please

          please provide a source for your claim. I’ve seen that being intoxicated invalidates verbal consent but I’ve never seen that consumption of literally any amount of alcohol does.

          • Joe Onset

            “An individual who is incapacitated by alcohol and/or other drugs both
            voluntarily or involuntarily consumed may not give consent. Past consent
            of sexual activity does not imply ongoing future consent.”

            ” In addition, a person who is has consumed alcoholic beverages may
            not be capable of discerning and confirming consent to sexual activity.”

            Title IX Federal Guidelines

          • Facts always win

            As I suspected: “incapacitated” and “may not be capable” so you are incorrect that having one drink automatically nullifies a verbal affirmative. Thanks for playing though.

          • Facts always win

            and next time please provide a link to an official source so I know you aren’t just making up the title IX guidelines in quotes – but given that they go against your point – I’ll assume they are the actual ones.

    • Facts please
      • Joe Onset

        Yes. Exactly as I have explained. Read carefully before you jump on the bandwagon.

  • confused

    I ask the reader to ask a practical question: what is the ultimate end-point of this story? The accused has left the university. He is no longer around to cause her grieve as she attends classes (as she hoped for in her press conference). Wasn’t that what she wanted? What is her expectation? What exactly does she want the Dept. of education to do? And after they’re done, what next?