The Brown University News Bureau
Distributed May 1, 1997
Contact: Mark Nickel
Adjudicating cases of sexual misconduct
Ad hoc committee recommends changes to Brown's disciplinary system
The final report of an Ad Hoc Committee on Sexual Misconduct recommends more
than a dozen changes to Brown's disciplinary system, including a new
"structured negotiation" option.
PROVIDENCE, R.I. -- An Ad Hoc Committee on Sexual Misconduct, appointed last
December to review Brown University's disciplinary process regarding sexual
misconduct, has submitted its final report to Provost James Pomerantz and Dean of Student Life Robin Rose.
The 30-page document addresses campus concerns about the disciplinary system
and makes more than a dozen recommendations for changes, large and small. The
recommendations and observations are the work of 11 committee members, with
contributions from a broad cross-section of organizations and individuals from
the Brown community. Sheila E. Blumstein, professor of cognitive and
linguistic sciences and former dean of the College, chaired the committee.
Editors: Copies of the 30-page report are available from the
News Bureau by mail or from the News Bureau's web site.
"The ad hoc committee's basic finding is that the disciplinary system
at Brown, while effective and well conceived, is often seen as adversarial or
quasi-legal," said Laura Freid, executive vice president for external affairs.
"The report's recommendations, particularly its call for a new `structured
negotiation' option, address that central concern head-on and will be immensely
valuable as the provost and dean of student life continue their review of the
University's disciplinary system."
Changes to the disciplinary system, Freid added, must be presented to the
Brown Corporation, the University's governing body, and will require the
"We are committed to reviewing this report carefully, giving each
recommendation and finding full and fair consideration, and to listening to the
reactions of the community to the report," Pomerantz and Rose wrote in a memo
to students, faculty and staff. "Our goal for this semester is to hear
reactions to the report from as many community members as possible."
Pomerantz and Rose will hold an open forum for the campus community at 7
p.m. Tuesday, May 6, in Arnold Lounge. The meeting is intended to encourage
community discussion and is not open to the press.
- Confidence in Brown's disciplinary system. "Although we have made a
number of suggestions to modify our current disciplinary procedures," the
report says, "we would be remiss if we did not recognize that, on balance, our
current disciplinary procedures are well in place and have always clearly and
thoughtfully safeguarded due process."
- Confidence in the Office of Student Life. "The Office [of Student
Life] has a long, successful and proud history of developing educational,
outreach, and support programs," the report says. "Perhaps more importantly,
the staff of this office has adjudicated and satisfactorily resolved countless
numbers of cases informally and has supported countless numbers of students who
have come in harm's way."
- The centrality of Tenets of Community Behavior. Brown
is a close community of more than 7,000 graduate and undergraduate students who
agree to conduct themselves according to the Tenets of Community
Behavior. All entering students are expected to endorse by their signature
that they have read and agree to live by the Tenets and its principles
of self-respect, respect for the well-being of others, and personal
responsibility. The report reaffirms the critical importance of the
Tenets as the basis for community life at Brown.
- An emphasis on consent. The committee proposes a different wording
for Offense III (sexual misconduct) that clarifies and emphasizes the role of
consent. Their proposed wording (changes italicized):
Sexual misconduct: non-consensual physical contact of a sexual
nature. Consent must either be verbal or by acts unmistakable in their meaning.
It is not possible to give consent if impaired or incapacitated, either
mentally or physically (i.e., highly intoxicated, asleep, or unconscious).
- The system is perceived as quasi-legal and adversarial. In response
to student interest in a system that provides clear-cut policies and
procedures, Brown has made changes to its disciplinary code over the years.
Those changes may have made the system appear more like a court of law than a
disciplinary process. The educational value of the process - a fundamental
element of any University proceeding - is often low for both sides.
The committee gathered and analyzed campus concerns about the University
Disciplinary Council (UDC), particularly with regard to cases of sexual
misconduct, and determined that a two-pronged process would best address those
concerns. First, the committee recommended a series of procedural changes that
will lessen the adversarial nature of UDC hearings. Second, the committee
recommended a new formal procedure - "structured negotiation" - as a voluntary
alternative to UDC hearings.
Those two recommendations are described in greater detail below. Other
- Brown should continue to hear cases of sexual misconduct. The
committee heard arguments that the University is not equipped to hear cases of
sexual misconduct. The committee felt that not hearing such cases would "send a
chilling message that there are a range of actions for which the University may
not hold the perpetrator accountable." The committee unanimously reaffirmed
Brown's policy of hearing sexual misconduct cases. The University is required
by Title IX regulations to provide a process for resolving complaints of sexual
harassment or discrimination.
- The UDC may still decline to hear a case. The committee agreed that
the UDC should still have the right not to hear a given case but recommends
that such a decision require a two-thirds vote and an explanation to the dean
of student life. Cases refused by the UDC should be remanded to the dean's
office for possible action under the dean's discipline process. The UDC must
base its refusal only on consideration of written materials resulting from
investigations and not on arguments advanced by either side.
- More options for dean's discipline. The report recommends that the
range of penalties available for cases settled in a dean's hearing be expanded
to include suspension for one semester. It also suggests that the dean of
student life be empowered to convene a panel to review cases in which a senior
officer exercises emergency separation powers. An individual who has been
separated from the community remains subject to discipline.
- Full support and services for both parties. Both the complainant(s)
and the charged student(s) are entitled to full support and services throughout
the disciplinary process. This is essential for ensuring an unbiased and
non-adversarial climate. Support groups should be named in a way that is not
gender-specific. The Women on Call program, for example, is available to men
and should be renamed to reflect that fact.
- Continue to distinguish the UDC from courts of law. Brown should
continue to describe the UDC in non-legal terminology. The disciplinary process
conducts hearings, not trials; produces findings, not verdicts; determines
whether charged students have violated the Tenets, not whether they are guilty.
Not only is Brown ill-equipped to mirror the legal system, according to the
report, but an adversarial legal system is antithetical to the principles that
underlie the University.
- Confidentiality of the process must be assured. Persons involved in
the UDC process have a crucial responsibility to maintain confidentiality. Any
breach of confidence undermines the integrity of the process and should have
very serious consequences, including expulsion of the individual from the UDC
and possible disciplinary action. Further, breach of confidentiality by a UDC
member should be sufficient grounds for an appeal to be heard.
- Confidentiality of the outcome must be assured. "We simply do not
agree that it is necessary or even helpful to print the name and publish the
picture of students who have been found in violation of the Tenets," the
committee wrote, particularly since student publications are available through
the World Wide Web.
The committee specifically rejected the rationale, advanced in the past by
student editors at the Brown Daily Herald and the College Hill
Independent, that publicity safeguards the community, presumably by
identifying potentially dangerous persons. The Office of Student Life responds
expeditiously to persons who pose a genuine threat to the community, the report
says, and a student who has served his or her penalty has every right to return
to Brown as a full-fledged member of the community.
- Briefer, less detailed community notifications. In response to
community requests for better information about UDC decisions, the Office of
Student Life has tried to make the community notification documents more
detailed. The committee believes this feeds campus curiosity, increases
attempts to guess the identities of participants, and invites second-guessing
of UDC findings. Community notifications should include only a brief
description of the offense, finding and penalty.
Changes to hearing process
- Abolish the roles of presenter and advisor. These two positions
have come to be seen as district attorney and defense counsel, contributing to
the confusion between disciplinary process and court of law. Instead, each
party will be allowed one advisor who will help in preparing for the UDC
hearing. A small group of well trained advisors will be available to both
parties, although a student may choose an advisor from outside that group.
Advisors may not have a legal degree, nor should the advisor have a connection
of a personal nature to the student's family or to a member of the senior
administration or Corporation.
- All questions to be asked by UDC members. To further reduce
confusion of the UDC with courts of law, neither party will be able to question
or cross-examine persons who give testimony. Instead, members of the UDC will
ask all questions, although both parties may submit additional questions to be
asked by the UDC. Both parties will be allowed to make opening and closing
statements before the UDC, either orally or in writing.
- All offenses should meet the same standard of proof. The committee
considered proposals to require a different standard of proof for sexual
misconduct cases because of the seriousness of the charge, but rejected the
idea. The committee did not want to apply different standards of proof for
violations within the University's own code.
- Preponderance of evidence. The committee considered various levels
of proof, including the higher "clear and convincing" level. It recommends
"preponderance of evidence" as a standard because the goal of a UDC hearing is
to determine whether a violation of the Tenets has occurred, not whether
a law has been broken.
- Cases should continue if student withdraws. The committee expressed
grave concerns that an accused student might attempt to bypass the UDC
proceeding by withdrawing from the University prior to a hearing. Once the case
has come before the UDC, the report recommends, it should be carried to a
conclusion even in the absence of the student. If the student is found to have
violated the Tenets and if a permanent transcript notification would
have been part of the penalty, such a penalty should be carried out.
A major concern of the committee was that certain cases and certain
situations potentially involving sexual misconduct might be better adjudicated
by a process in which the parties engage in conversation rather than by the
disciplinary process. It is sometimes the case that the complainant may be
seeking an acknowledgment that what happened was wrong or that the charged
student may be willing to reconcile outside the hearing process. The committee
found that both parties "lose control" of the matter in a UDC hearing, where
they are pitted against each other, sometimes in ways neither party had
The committee recommends that Brown develop a voluntary "structured
negotiation" alternative to the UDC hearing. Under structured negotiation, a
trained arbiter could manage a conversation, either in a face-to-face setting
or through a "shuttle diplomacy" format, where parties would not meet. The goal
would be to arrive at a solution that is acceptable to both parties. Outcomes
could range from a formal apology to voluntary withdrawal from the University
and would be held in strictest confidence by both parties.
Structured negotiation would require:
- the willingness of both parties to participate. Either side could end the
process and move to a full UDC hearing;
- a skilled and trained facilitator - perhaps called an arbiter - who is
both sensitive and fair;
- a resolution that is acceptable to both sides;
- absolute confidentiality and agreement from both parties that there will
be no discussion with anyone outside the negotiation. In the event the
negotiation does not succeed, nothing said or offered in the negotiation
process would be admissible to the UDC, and the arbiter may not be called as a
- a prior assessment by the dean of student life that the incident would be
appropriate for negotiation.
With the report in hand, Pomerantz and Rose are moving swiftly to gather
student reactions, evaluate the recommendations and formulate proposals for
consideration by the Corporation. In addition to the open forum scheduled for
Tuesday, they have posted a copy of the report to the University's web page and
hope to receive additional comments via email.
"Brown has a tradition of involving students in deliberations that lead to
change," Freid said. "The report already contains a great deal of student
input, both from committee members and from two open meetings of the committee.
Some of the report's recommendations can be undertaken directly by the
administration and others will require approval by the Corporation. But I
believe the campus will see noticeable changes in effect at the start of the