Brown University News Bureau

The Brown University News Bureau

(See news release number 96-122.)

Report on Sexual Misconduct

submitted to

James Pomerantz, Provost
and
Robin Rose, Dean of Student Life

by the Ad Hoc Committee on Sexual Misconduct

April 24, 1997

Ad Hoc Committee

Sheila E. Blumstein, Professor of Cognitive and Linguistic Sciences and Chair
Janet Blume, Associate Professor of Engineering
Ron Brown, Student Life Officer and Assistant to the Chair
Rajib Chanda, `97
Howard P. Chudacoff, Professor of History
Ferdinand Jones, Professor of Psychology
Megan L. Kawatachi, '97
Bethany E. Kantrowitz, Graduate Student, Sociology
Samuel Ramirez, Director, Equal Employment/Affirmative Action Office
Karen Sibley, Dean of Summer Studies
Meera S. Viswanathan, Associate Professor of Comparative Literature and East Asian Studies


Background

The Ad Hoc Committee on Sexual Misconduct was created by Provost James Pomerantz in December of 1996. The charge to the committee was to "review the University procedures, policies, and practices regarding sexual misconduct". The Committee was instructed to narrow this broad charge to a "reasonable scope", but to include "a review of the relevant non-academic disciplinary procedures, including the operations of the Office of Student Life, the Advocates, the University Disciplinary Council, and the advisor structure" as well as of the "options available to students other than the disciplinary system, including mediation and the criminal justice system".

The Ad Hoc Committee met at least weekly throughout the second semester of the current academic year. In an effort to perform a comprehensive review and to formulate the recommendations which follow in this report, the Committee discussed current procedures and policies at Brown and their historical context, reviewed the policies and procedures from a number of other institutions, met with a broad range of individuals who have been currently involved with the disciplinary process, educational programs, and support structures to learn about the system and to hear recommendations for improvement, met with professionals from outside the University for their opinions and evaluations of issues and processes within our charge, and solicited comments and suggestions from members of the Brown community through two open forums and through all-university requests for written comments.

Our thanks go to the many individuals who assisted and educated us in the process: Thomas Bechtel, Senior Associate Dean of Student Life and past Case Administrator; Janet Cooper-Nelson, University Chaplain and Advisor; Gigi Dibello, former Director of the Sarah Doyle Center and Advocate; Michael Diffily, Associate Dean of the Graduate School and Advisor; Stephen Foley, Associate Professor of English and Chair of UDC; Tom Forsberg, Assistant Director of Residential Life and Presenter; Mary Greineder, Associate Dean of Student Life and Presenter; Carla Hansen, Associate Dean of Student Life and the Graduate School and member of Brown University Mediation Project (BUMP); Peter Hocking, Director, Swearer Center for Public Service and Advisor; Susan Huntley, EEO office; Flora Keshgegian, Associate University Chaplain and Advocate; Robin Rose, Dean of Student Life; Beverly Ledbetter, University Counsel; Kristin Lindgren, '98 and BUMP; Mary Lou MacMillan, Director of Health Education and Advocate; Phil O'Hara, Assistant Manager of Student Activities and BUMP; Gary Pavela, consultant and Director of Student Life, University of Maryland; Toby Simon, former Associate Dean of Student Life, Presenter, and founder of SAPE; Edward Stoner II, consultant and attorney; Barbara Tannenbaum, Professor of Theater, Speech and Dance, founder of Women on Call and University Ombudsperson; Edward von Gerichten, Assistant Counsel and Counsel to the UDC; Amy Weinstein '98 and SAPE presenters. We also appreciated the input we received and proposals submitted by the Coalition Against Sexual Assault and the Brown ACLU, as well as the many other letters and memos we received from members of the Brown community.

Introduction

We begin this report by underscoring the seriousness with which we take violations of sexual misconduct. They are simply not to be tolerated. Such violations, like all violations of personal safety and dignity, are antithetical to our code of conduct and to all that we represent. We recognize that sexual misconduct is a national problem in our society at large and on campuses across the country. Unfortunately, the Brown campus is no exception. Recognizing sexual misconduct as a problem is just a beginning. We applaud Brown for having taken a leadership role in the past, in recognizing and in attempting to address this issue. We hope that this report will reflect Brown's continuing recognition of this problem and of our willingness to face it `head on'.

Before we elaborate the details of our report, we would like to underscore what we believe it is and what we believe it is not. We do not consider this report to be the `final word' on the issue of sexual misconduct at Brown. Rather, it is one step in an ongoing and evolving process of review and discussion of how we, as a University community, deal with cases of sexual misconduct. It reflects an effort to identify, review, and refine our approach to one of many complex issues that we face as a community. Our understanding of sexual misconduct needs to be increasingly refined, and our systems of redress need to be continuously adjusted to reflect our better understanding. Review and possible recommendations for change need to be based on consideration of how effectively our current system operates, and most importantly, consideration of how it can be improved to serve well and fairly all members of the Brown community. The recommendations that are made in this report reflect our conviction that the way issues of sexual misconduct are handled must be consistent with the values that we share as a community. What are those values?

The two documents that best characterize who and what we are as a community are the Brown Charter and the Tenets of Community Behavior. These two documents are short in length but long and deep in expectations and aspirations. Our mission is "to promote intellectual, moral, and aesthetic growth, and to develop the qualities of mind and character that will enable our students to, in the words of the Brown charter, `discharge the offices of life with usefulness and reputation'". The Tenets provide a code of conduct which has at its heart a balance between `individual integrity and self-respect' and `respect for the rights and concerns of others'.

We begin with an assumption that we are a special community, tied together by the particular set of values and principles set forth in our mission statement and in the Tenets of Community Behavior. Education is a core value of our community. As such, it should serve as a guiding factor in all of our institutional and personal practices, and will be a critical area of focus in this report.

Membership in the Brown community is a privilege, not a right, and carries with it an expectation that all members embrace the code of conduct set out in the Tenets of Community Behavior. Our standards of moral integrity, individual responsibility, and mutual respect may demand more of the members of our community than outside of Brown. They are also more rigorous and more demanding because we are a `community of consensus'. We assume that there is mutual agreement among the members of the community in accepting the code of conduct and in taking ownership and responsibility for those standards. As testimony to this understanding, all entering students are expected to endorse via their signature that they have read and agreed to live by the Tenets. We purposely bring focus to these issues at the outset of this report to reaffirm the critical importance that the Tenets play in our daily lives, to underscore the critical role that individual integrity, responsibility, and community plays in dealing with the issue of sexual misconduct, and to remind ourselves that the members of the community have an obligation to continually educate new and existing members about the meaning of the Tenets.

Unfortunately, we are not always able to protect all members of the Brown community from coming into harm's way, nor do we believe that every member should stay in the community regardless of the offense that has been committed. In the best of all worlds, as an educational institution, it would be preferable if violations could be treated as `educational moments'. But the reality is such that some offenses are serious enough as to require that those found in violation of the code be separated from the university for some period of time or even permanently. Processes need to be in place to determine whether violations of the Tenets have occurred, and, if so, what the appropriate penalty may be. These processes reflect the community's values, and are a means by which the community `comes together' through its processes to determine whether a violation of the Tenets has occurred. This coming together requires that all sides be heard in an open, unbiased, and non-adversarial climate, so that informed and fair decisions can be rendered. As a consequence, it is essential that both the complainant and the accused receive support, that due process be guaranteed, and that a forum for adjudicating a case be in place. We take this as our point of departure for consideration of the issue of sexual misconduct at Brown.

What follows is a broad-based approach to the issue of sexual misconduct. We have divided our presentation into three main parts. Although these three parts are discussed separately, they are not independent of each other, but rather interact and critically inform each other. They include: the process; the role and responsibilities of the community with respect to issues of sexual misconduct; and the critical importance of education for helping the entire community understand, hopefully prevent, and respond to cases of sexual misconduct. As we will reiterate throughout this report, we consider our recommendations as broad goals and principles which we believe should underlie whatever changes are ultimately implemented. Except where we specifically state, we also believe that our recommendations should apply to the system in general, and not solely to cases involving sexual misconduct. We have not provided details of implementation nor do we consider our recommendations as a blueprint. Rather, we hope that our observations and recommendations will serve as a general framework which may serve as a basis for dialogue with the university community, and a set of guidelines for those with the authority to make changes and those with the responsibility for implementing them.

Definition of Sexual Misconduct

In order to ensure that we have a common understanding of what is meant by sexual misconduct, we present what we believe to be a clear and unambiguous definition of sexual misconduct. It does not differ substantially from the definition and comment in the code which reads:

Offense III. Sexual Misconduct: non-consensual physical contact of a sexual nature.

Comment. Encompasses a broad range of behaviors, including acts using force, threat, intimidation, or advantage gained by the offended student's mental or physical incapacity or impairment of which the offending student was aware or should have been aware. Harassment, without physical contact, will not be deemed sexual misconduct under these provisions."

We propose the following revision of Offense III to explicitly define what is meant by consent. The proposed text reads:

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 (e.g. highly intoxicated, asleep, or unconscious).

Comment. Encompasses a broad range of behaviors, including acts using force, threat, intimidation or actions taken as a result of a student's mental or physical incapacity or impairment of which the offending student was aware or should have been aware. Harassment, without physical contact, will not be deemed sexual misconduct under these provisions, but rather is viewed as a separate offense (Offense IV).

We also underscore the fact that the definition of sexual misconduct and all of the issues surrounding our discussion of sexual misconduct in this report apply to any and all participants regardless of their sexual orientation or their gender.

The definition of sexual misconduct is more general than is the definition of rape or sexual assault. Both rape and sexual assault are legal terms which we have purposely avoided using in our discussion of sexual misconduct. (The definition of sexual assault appears in the Brown University Policy and Procedures Manual on Sexual Harassment, Misconduct, and Assault published by the Equal Employment Opportunity/Affirmative Action Office (pp. 1-3, March 6, 1996)). It is the Tenets of Community behavior which define the parameters of acceptable behavior and, as such, reflect our community values. For this reason, we believe it is important to consider violations of sexual misconduct based upon our definitions of behavior rather than upon legal definitions.

The University's Handling of Cases of Sexual Misconduct: Yes or No

The first question which we address is whether Brown University should be adjudicating cases of sexual misconduct. The ramifications of this decision are so broad and so deep that they impact on all aspects of process, community, and education. For this reason, we address this question first.

We have heard strong feelings from members of the community on both sides of the issue. Some say, it is Brown's responsibility to hear such cases. Not to do so would send a chilling message that there are a range of actions for which the university may not hold a potential perpetrator accountable. Others say, these cases are `too complicated' to hear. The University is neither competent nor equipped to handle such cases, in some instances, due to their complexity, and, in other instances, due to their potential criminality. We see merit in both points of view. However, we are unanimous in our reaffirmation of Brown's current policy to hear cases of sexual misconduct. We believe that Brown University has a responsibility to adjudicate those cases which violate our tenets of community behavior which guarantee all members of the Brown community a right `to attend, make use of, and enjoy the facilities and functions of the University without interference or disruption'. We agree that the disciplinary procedures should not try to mimic or replace a court of law. However, we do believe that we should neither give up the right nor indeed abdicate our responsibility to ensure that all members of the community enjoy a `safe' environment, and to hold accountable those who violate that safety. The accountability to which we hold our members of the community is in relation to the Tenets of Community Behavior. Thus, if there is a case which is actionable in either criminal or civil court, consistent with our current policies, that case may and should be pursued outside Brown as well. The decision to pursue a case outside of Brown is that of the complainant. The University should make clear the student's options, without trying to either dissuade or persuade the student from taking any or all options available.

Quite apart from our view that we have a moral and ethical obligation to hear these cases, there is also potentially a legal one. Title IX prohibits sexual discrimination and sexual harassment, and it is our understanding that federal regulation requires that some system be in place that allows for the hearing of charges related to either sexual discrimination or sexual harassment. Sexual misconduct presumably falls under this rubric. Although the University could change its current procedures, it is not clear to us, that we could choose to avoid having a process to adjudicate the matter.

Having said this, we also recognize that there may be certain extraordinary cases that are so egregious and pose a hazard of such magnitude that they should be handled by enhanced powers of Dean's Discipline. In such cases, the accused may represent a clear and present danger to the community so that emergency powers of separation, which are currently in place, would need to be invoked (see the code of conduct):

IX. RESERVATIONS:
Nothing herein shall be construed as preventing the appropriate University officers from taking measures to deal with individuals whom they believe pose a danger to themselves or the immediate well-being of the University community. The President, the Dean of the College, the Dean of the Graduate School, the Dean of Medicine, and the Dean of Student Life, shall have the authority to remove students from dormitories or to separate them from the University when they believe there is a threat to the safety, health, or well-being of the University community or a member thereof.

Nonetheless, this provision does not mean the University should turn a blind eye and fail to take disciplinary action once an emergency power has been invoked. There still needs to be a review of the case. In such instances, we recommend that the Dean of Student Life have the authority to convene a Dean's review panel which would review the case, and on the basis of this review, have the power to separate or expel a student. Presumably, such a decision could be appealed to the President or Provost of the University. There is precedent for such a process which was used during the Swearer presidency.

We make this recommendation not to diminish the authority and force of our current hearing process. We want to ensure that the UDC continues to have authority in hearing cases of sexual misconduct. However, we do not want to make vulnerable its authority by focusing attention on those potentially rare cases in which a particularly egregious offense has occurred and in which the legal ramifications are so serious.

The Hearing Process

All members of the Brown community need to embrace the Tenets of Community Behavior as well as the system that adjudicates potential violations of the University's code of conduct. Community members including those participating in the process need to feel that they can enter the system in good faith, that they will be treated with fairness and compassion, and that the goal of the process is justice.

We have learned that the community's faith in the system has been seriously jeopardized. Criticism has been leveled against the process from all sides. Some of this criticism may be fair; some of it may reflect unrealistic expectations about what the process can or cannot accomplish. Be that as it may, it is not our intention to dissect each criticism piece by piece, but rather to broadly outline our concerns and to propose some solutions.

The broad concerns with the UDC process that we have identified are the following:

In our continued effort to identify, review, and refine our approach to the issue of sexual misconduct, we believe that the concerns that we have outlined above can best be remedied by a two-pronged approach. The first is to recommend some changes to the current non-academic disciplinary procedures. The second is to recommend a new formal procedure called structured negotiation that provides an alternative avenue for adjudicating cases involving sexual misconduct. We also believe that a structured negotiation process could apply to other disciplinary matters as well. We will consider each set of recommendations separately, but will also provide below a sense of how they may potentially interact and intersect.

Recommended Changes to the Current Disciplinary Procedures

The primary purpose of the changes recommended below is to attempt to defuse the adversarial nature of the current procedures. We are aware that our disciplinary system has evolved over the years since the creation of the University Council on Student Affairs in 1968, and we affirm our confidence in its policies and procedures. Nonetheless, it is the case that the judicial hearing process was less adversarial in years past. The changes which have led to the more recent system were made in the interests of ensuring a clear-cut set of processes and procedures, and they have succeeded in doing so. However, at the same time, they have also produced a system which has become increasingly adversarial and quasi-legalistic. Not only do we feel that Brown is ill-equipped to try to mirror the legal system, but we believe that an adversarial system is antithetical to the principles that underlie the university. These principles are first and foremost to educate and to provide an open forum for the exchange of ideas and information for the purpose of making informed decisions based on a `hearing' from all sides and perspectives. We underscore here once again and assume that, as in the past, our disciplinary system is based on the principles of due process and fairness.

In order to make the system less adversarial, it will be necessary to change some of the current procedures as well as to alter the roles and responsibilities of the Presenters, Advocates, and Advisors. The basic goal is to have the University provide a forum for presenting the facts of the case in order to determine whether there has been a violation of the code of conduct, and if there has been a violation, to provide a means for rendering a judgment about the nature of the penalty. To this end, we are recommending changing the focal point of the hearing process from the Presenter and Advisor, who currently act in the roles of `district attorney' and `defense lawyer' respectively, to the hearing board (the UDC) which will assume responsibility for asking all questions and ensuring that both sides are heard. Thus, we are recommending that we disband the current roles of presenter, advisor, and advocate, and replace them with one Advisor assigned to the complainant and one Advisor assigned to the accused. (This change would apply not only for cases involving sexual misconduct, but for all disciplinary cases including those in which the University may be the complainant.)

The role of the Advisor is to help the student in planning his/her case. The Advisors will be selected by the charged and complaining students from a small pool of individuals, selected and trained by the Office of Student Life to serve in this role. As in the past, no Advisor may have a legal degree; nor should any Advisor have a connection of a personal nature to the student's family or to any member of the senior administration or the corporation. We propose this restriction, not because we believe that such individuals would not behave with integrity, but rather to ensure that the entire process is safeguarded from the perception of potential outside influence. It should be admissible for a student to petition use of an Advisor whose name is not in the regular pool, although because of the special training that the Advisor receives, it would be preferable for the students to select from the list of Advisors.

As in the current procedures, at the start of the hearing, both the complainant and accused will present an opening written or verbal statement. However, as a change from current procedures, all questions will be asked by the Council. Should either the complainant or accused have additional questions of one another, they will be asked through and by the Council. Witnesses for both sides will appear, as in past procedures, but questions will be asked to these witnesses by the Council. Questions which have not been asked by the Council can be submitted in writing to the Council by either side, and will be again asked through the Council. The Council should ask any and all pertinent questions, regardless of how difficult such a question may be. As in current procedures, it is up to the discretion of the Council through the Chair to disallow certain questions, if it is felt that the question has already been asked and/or is not germane or appropriate. The hearing will end with each side presenting closing statements.

We also urge that the Council adopt the terminology which currently appears in the code of conduct during its deliberations, by determining "... whether the charged student(s) has violated [emphasis ours] the Standards of Conduct". We find this use preferable to the current usage of the terms guilt or innocence. The terminology in the code is more consistent with the goal of making the process less legalistic and adversarial in nature. The terminology may also help the community recognize that a finding of a violation or not speaks neither to the credibility of the complainant nor the accused. Rather, it simply indicates that there was or was not a preponderance of evidence for a finding of a violation of an offense.

These changes to the process will require additional training for the Council (see Education section below). Most particularly, the Council will need to understand the nature of the questions that can and should be asked. Members of the Council will need to learn how to ask what may be deemed very `difficult' questions to both the complainant and the accused. And they will need to learn what the appropriate limits of such questions may be.

We agree with the current policy that permits the presence of the complainant during the entire hearing process. However, we note that the complainant may be present throughout the hearing only in cases of sexual misconduct. For consistency, we recommend that the complainant be allowed to attend the hearing in all disciplinary cases. Consistent with our current procedures, we support the right of the accused to be present throughout the hearing process.

The investigatory process is a critical part of the system, since it ensures that all information and all witnesses will appear before the Council so that an informed and fair decision can be made. Because of the critical role that the investigatory process plays, we would like to increase the attention focused on it. To that end, the Case Administrator, or if this is not feasible, another individual should be assigned to each case in order to facilitate and help in the gathering of information. This person should be a neutral party having no relation to either the complaining student or the accused. His/her role is to serve as a focal point in the gathering of information and pulling together the pieces of the case that would eventually go to the Council. This individual would help both of the students and their advisors in the investigatory process, and be at the disposal of the Council to ensure that all relevant information and witnesses have been identified and appear before the Council.

We recognize that there may still need to be a cadre of individuals who fill the function of the current Advocates, and, in addition, we are certain that there needs to be a continuation of the function of Women on Call. Both groups serve as a critical entry point to the system for a student in need of help and support. We recognize the importance of this role, but recommend two changes. The first is that both the accused and the complainant should be able to avail themselves of help and advice about the system and the process. However, should there be an individual other than the Advisor who is serving in this role, s/he should be allowed to attend the hearing, if requested. Nonetheless, only the Advisor will play an active role in the hearing process. The second is that the titles of both Advocate and Women on Call should be changed. The term advocate is a misnomer for the role that the current advocates play, and it is misleading to all. The person serves neither as a `lawyer' as the term translates from the French, nor does the person play an active role in the development or presentation of the case. A suggestion of a possible name is Supporting Counselor. As to the title Women on Call, it connotes that the service is available for women only. Although this is apparently not the case, men may be reluctant to seek help from this outstanding group. A possible change in name could be to Crisis Counselor. Having said this, we do not want this suggestion to be interpreted as a minimization of concerns for women. The Women on Call program was created to fulfill a real gap and a true need. We are acknowledging, however, that men too may be victims of sexual misconduct, and a system needs to be in place to assist them as well.

In addition to the above-described changes in the procedures, we also recommend the following:

Structured Negotiations

A major concern of the adhoc committee has been that certain cases and certain situations potentially involving sexual misconduct may be better adjudicated by a process in which the parties partake in a `conversation' of sorts rather than by the disciplinary process. It is not always the case that the complainant wants his/her `day in court', but rather would like some acknowledgment that what had transpired between the two parties was an unwanted interaction or outcome. As well, the accused may feel less threatened, more willing to reconcile with the complainant, and more open to learning from an alleged incident of sex-gone-wrong in a venue that is less adversarial than a disciplinary hearing. It is the sense of the committee that once the decision to go forth with a UDC hearing has been made, those conversations and educational opportunities tend to be lost. Both parties (the complainant and the accused) have essentially `lost control' of the matter, and are pitted against each other, sometimes in ways that the complainant had neither intended nor wanted. It is for these reasons that we propose a new formal avenue called structured negotiation. It is the broad goal of a structured negotiation to review the incident and to ascertain what would be a fair and equitable outcome for both parties.

We envision a process of structured negotiation not as a substitute for a disciplinary hearing, but rather as an alternative. Moreover, we do not see the structured negotiation process as a diminution of the seriousness of a case. In fact, at any point in the negotiation process, and by the decision of either party, the structured negotiation may be terminated. The complainant will still have the right to request that the original incident be reviewed by the Monday morning review group for a possible disciplinary hearing.

Rather than taking away control, a structured negotiation empowers both the complainant and the accused by letting her/him be actively involved in the process, and by working towards a fair solution to the problem. For a structured negotiation to be pursued and to be successful requires the following conditions:

As to the process itself, we assume that it can take a number of different forms and styles depending upon the situation and the participants. It may involve a face to face meeting between the complainant and the accused along with the arbiter. It may involve a set of written exchanges passed through and between the arbiter. Or it could involve `shuttle diplomacy' where each party may be located in a separate room with the arbiter moving between them.

The outcomes of the process may be varied and by mutual agreement may range from apologies on both sides to an agreement that the accused will take a leave from Brown. Since the process is privileged and confidential, such a leave would be noted as a `personal leave' and would carry with it no other transcript entry. There may be specified terms agreed upon by both parties. In the event that the process is compromised by a breach of confidentiality or the terms are broken, two consequences may result. One is that the offending student will be brought up on disciplinary charges for having violated Offense IX (flagrant or repeated violations of operational rules governing various offices, departments, and facilities of the University). The other is that the structured negotiation process will be terminated, and the original incident may then be forwarded to the disciplinary process. The arbiter will have responsibility for following the resolution of the case, and will monitor whether the terms of the structured negotiation are being fulfilled.

We have outlined what we consider to be the critical ingredients necessary for a structured negotiation process. However, we have not delineated in detail how this process will integrate with the non-academic disciplinary process, nor have we worked through all of the details of the structured negotiation process itself. We expect that the details of implementation will be formulated by those who will be assuming responsibility for the system. However, we expect that the principles we have outlined above will be adhered to. In our view, the responsibility for this process and for all aspects of non-academic discipline properly belongs in the Office of Student Life. In order for the system and process to succeed, there needs to be a single person who is held responsible and accountable for ensuring the integrity of the system. The Dean of Student Life is the person who should assume that role.

In the view of the adhoc committee, it is unfortunate that the Office of Student Life has, in some circles, gained the reputation of being primarily a disciplinary/prosecutorial office. This could not be further from the truth. The Office has a long, successful, and proud history of developing educational, outreach, and support programs (e.g. RC, BOLT, SAPE). 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 process has always been confidential and thus has not received the positive recognition that it deserves in resolving these situations.

It is not the intention for the structured negotiation process to supplant Brown's current mediation program, BUMP. Indeed, BUMP served for us as a model of how an interactive and collaborative process can successfully resolve many conflicts. The participants in BUMP are to be applauded for their efforts. Nonetheless, as they themselves indicated, BUMP is not integrated within the disciplinary process, and it is not prepared to handle cases of sexual misconduct, in part, because cases of sexual misconduct do not seem appropriate for mediation.

The success of a structured negotiation process rests critically on the individual who serves as the arbiter. It is for this reason that a great deal of attention will be need to be paid to the selection and training of such an individual. It is our recommendation that a number of individuals be selected from the University community to serve in this role. They should be selected on the basis of their skills as individuals who can interact and negotiate fairly, effectively, judiciously, and who also have the confidence and trust of all parties. There are individuals on this campus who have such qualities and qualifications. There should be a small group of Arbiters (3-4) who will be selected to serve on an individual basis for a case. The choice of the particular arbiter must be mutually agreed upon by both parties. No one serving in the capacity of arbiter should have any other role in the disciplinary process at Brown. The Arbiters will report directly to the Dean of Student Life.

The Community

The Tenets of Community Behavior that we live by at Brown maintains a fine balance between supporting individual self-realization and respecting and safe-guarding the rights of other individuals or groups. It also affirms a respect and concern for the well-being of others. The Brown community is an active and vibrant one, and many members have shown an intense interest in the issue of sexual misconduct and the disciplinary process. The role that the community plays in all aspects of cases of sexual misconduct, ranging from help and support for those involved to reactions to the decisions made in the disciplinary process, sets a tone that speaks to who we are and what we represent. We applaud this interest and involvement. However, at the same time, we question certain aspects of the behavior and words of some members of the community, and wonder whether at times their actions and views have fostered a climate that is antithetical to the educational, supportive, and caring environment that we purport to represent here at Brown. So that there is no misunderstanding, we are not `blaming' the community for incidents of sexual misconduct, nor are we trying to stifle open debate and honest differences in points of view. However, we note that, for some, decisions on cases seem to be evaluated as either wins or losses, rather than as attempts to find justice and render a fair decision in what is rarely a clear-cut situation. In point of fact, we all lose in these cases, not only the individuals involved, but also our community. These cases are tragedies, for, whatever the outcome, they harm and deeply affect all participants, and they threaten the well-being of our community.

A matter of great concern to the adhoc committee is the breach of confidentiality of the name of the accused by some members of the Brown community. The humiliation, embarrassment, and true harm to the accused student, in some cases, would seem to exceed the student's violation and any penalty meted out by the UDC. We simply do not agree that it is necessary or even helpful to print the name and publish the picture of those students who have been found in violation of the sexual misconduct offense in student publications such as the Brown Daily Herald and the Independent. Moreover, with the access to information available through the World Wide Web, the publication of the identity of the student is no longer an institutional matter, but becomes a global pronouncement. We are not convinced by the argument, made by some, that such publicity safeguards the community. We are confident that the Office of Student Life attends to and responds expeditiously to those cases in which the continued presence of an individual on campus represents a danger either to the complainant or to the community at large. A student who has served his/her penalty has every right to return to Brown as a full-fledged member of the community with all the attendant responsibilities and `privileges' of membership.

Even more troubling to the Ad Hoc Committee is a potential breach of confidentiality that comes from a member of the disciplinary council. Such a breach would taint the entire hearing process, and violates the terms of confidentiality that all UDC members sign prior to each hearing. In our view, such a breach so fundamentally undermines the integrity of the hearing process that there should be serious consequences. As a result, we recommend that if there is a breach of confidentiality by a member of the UDC, that this serve as sufficient grounds for an appeal to be heard. Moreover, we recommend that divulging the particulars of a case should not only result in the expulsion of the individual as a member of the UDC but may also be actionable as a major violation of the code of conduct. In such a case, appropriate disciplinary action should be taken against the individual who divulged the information.

The role and responsibilities of members of the community are varied. We understand that the community cannot always `prevent' cases of sexual misconduct. But it may be able to help in more ways than it may think. We would hope that students would assume some responsibility for each other. Those who see fellow students potentially heading in harm's way should intercede, rather than deferring to the individual's `choice' to make a poor and uninformed decision. For example, if someone has been drinking excessively, a responsible member of the community should not allow that person to go into the dead of night alone, nor should s/he leave the individual alone in an unfamiliar place with strangers.

Perhaps the major role and responsibility of the community in these matters is to become well-educated about the contents of the Tenets of Community Behavior, about the workings and nature of the non-academic disciplinary process, and about the issue of sexual misconduct. As a result, the community at large may come to have more realistic expectations about what the non-academic disciplinary process can and cannot do. It cannot and will not please everyone. It may render decisions that are not popular. It may not always be clear why or how a particular outcome was reached. The community needs to understand that the process is confidential, and as such, community members are not privy to all the facts of the case. Thus, to rush to judgment about the `competence' of the UDC may simply be unfair. What is required is a fundamental understanding and respect for the process and for the individuals participating in that process. It is up to the University to educate the community in all of these matters. And it is to this issue that we now turn.

Education

Education is the centerpiece of life at Brown University. It underlies everything that we do, academic as well as nonacademic. Of paramount importance is that all members of the Brown community be well-informed, that they know how to think critically, that they know how to assess the validity and strengths of arguments, evidence, and points of views, and that they be able to make informed decisions based on that information and their powers of reason and judgment. We firmly believe that education, not indoctrination, is the critical linchpin in helping address many of the issues and concerns that were raised in this report. We also believe that a proactive rather than a reactive role taken by the University in these matters will go a long way toward solving many of the problems of miscommunication that have so marked and marred our interactions in the recent past. There are four aspects which we would like to address in our consideration of the role of education. The first has to do with ensuring that all members of the Brown community understand and be familiar with the Tenets of Community Behavior and the attendant code of conduct. The second is that the community be well-informed about issues surrounding sexual misconduct. The third is that the community know the process by which cases of sexual misconduct are adjudicated. And the fourth is that those directly involved in the process have a deep and abiding understanding of and respect for the participants, the system, the issues, and for the particular role that they play.

As we have noted earlier in this report, each entering first-year is asked/required to sign a card indicating that s/he has read the Tenets of Community Behavior. The signature acknowledges not only that the student has read the Tenets but pledges that "I understand their meaning and the responsibility they place upon me as a student of Brown University." Nonetheless, as far as we can tell, there are no active discussions of the Tenets of Community Behavior beyond the signing of the card and passing references to the Tenets during Freshman orientation. It is our sense that few people have read the Tenets carefully or have really thought about what they represent or mean. In our view, the Tenets need to become a living and vibrant document, not dead dogma, for they represent what defines us as a community and elaborates our code of conduct and the moral, ethical, and behavioral standards we live by as a community. The Tenets should be discussed in many different circumstances, in many different places, and with many different people throughout the years a student is attending Brown. In short, we need to reaffirm community and responsible citizenship. The Tenets provide the vehicle for doing so. Moreover, these conversations need to be had not only with students and deans, but also with faculty, staff, and administrators, in short, with all members of the Brown community.

Sexual misconduct is a complex issue, and there seems to be a lot of misunderstanding about what constitutes sexual misconduct and what does not. At the heart of many cases of sexual misconduct is the issue of consent. We believe that there needs to be increasing discussion of consent, and that all community members need to understand not only what consent is, but also how to provide a clear and unambiguous signal of consent. We have been taken with the observation that many cases of sexual misconduct involve poor communication between the parties involved. Intimate relationships and intimate acts have as their foundation a sharing, and that sharing requires that the participants be able to read each other's signals. Students need to understand that if they choose to involve themselves in intimate situations with people they barely know, they are at increasingly greater risk for `bad' encounters, in part because the parties do not know each other and they are unable or even unwilling to read each other's signals. In those circumstances, we would hope that students avoid intimate interactions, and that there would be open discussions in education sessions of such a 'choice'. However, if students choose, nonetheless, to pursue an intimate interaction under these circumstances, it becomes increasingly important, even essential, that the intentions, wants, and desires of all parties be made explicit. A clear, overt intention, and an overt, explicit response provide the greatest safeguard against misunderstandings. An overt, verbal YES or NO signaling intent on either side sends the clearest signal, and this should be emphasized in education sessions. At the same time, it needs to be made clear to all parties that there are clear-cut nonverbal signals as well which must be `read' and respected. The community needs to have a clear understanding of the definition of consent as it is elaborated in the code of conduct described earlier in the report.

We are aware that there are those who believe that such examples and discussions about clear and overt signals may be construed as `blaming the victim'. We respectfully disagree. This is not an issue of blame, but rather of educating individuals how to take control and assert their own needs. They must assume responsibility for their own fate by doing and saying things to remove themselves and to prevent themselves from being in harm's way. All parties need to have an understanding of their role, wittingly or unwittingly, in contributing to what may turn out to be a very unsatisfactory outcome.

Nevertheless, any student who has been party to such a bad situation should be encouraged to seek the help of a counselor or a dean to discuss the matter. The student should not feel alone or isolated, and should be able to get the support and counsel that may be needed. Whether the situation is one that would require a disciplinary hearing, a structured negotiation, or a supportive conversation can be determined with the help of those deans, counselors, and administrators who are the guiding force in these matters.

How can these educational discussions take place? Brown's most accessible vehicle for education on sexual misconduct is SAPE. The SAPE dramatization is moving, provocative, and effective. Even without the post-dramatization discussion with the characters, the presentation can induce discussion, debate, and consciousness-raising, especially if a good discussion leader takes charge. To have more of these dramatizations available in more places and throughout the years that students are at Brown, we recommend that the university sponsor the production of a series of video tapes of SAPE dramatizations that could be shown and discussed in a variety of forums. Such showings should include not only Orientation Week which already has such a program, but to a myriad of other venues including organizational meetings with program houses and extracurricular groups, faculty and staff meetings, and so on.

While SAPE is one forum for discussion, it should not be the only one. There are other types of educational forums and outreach programs that the Office of Student Life and other campus organizations can sponsor in which these issues could and should be discussed. These could include establishing a Web Site out of the Office of Student Life which could provide examples and discussions of scenarios and possible responses to those scenarios as well as opportunities for members of the community to respond. It could include more descriptive literature with specific examples of types of cases. It could include invited lectures on sexual relationships that have an educational message as their focus. It could include table slipping with short scenarios or facts about sexual misconduct. It could include the establishment of a SWAT team which could act promptly to facilitate discussion when controversy occurs. In short, it requires a multi-faceted campaign that raises the level of awareness and provides dialogue for the entire community.

Few conversations about sexual misconduct can take place without also a discussion about alcohol. Unfortunately, the large majority of cases of sexual misconduct, and even the cases of non-academic discipline, involve excessive alcohol consumption. The entire Brown community needs additional proactive educational programs about alcohol consumption. Although the alcohol program during Orientation Week is a first step, it is not enough, and a full-fledged ongoing program throughout the students' years at Brown is necessary. Education is critical, but we also emphasize that enforcement is as well. The University's message on this score needs to be clear and unambiguous. It is our sense that the message given to students in the dorms is often ambiguous on these matters. While discussions clearly acknowledge and inform students about the legal responsibilities, they also tacitly acknowledge and assume that students are drinking when they should not. Being realistic is one thing, but there is a fine line between being aware and tacitly condoning.

We continue to support the University's policy to aggressively seek help for those students who have been found to have drunk in excess - whether that help is in the form of counseling, disciplinary action, or both. We also continue to support the University's policy (which has been consistently applied) of following up on excessive alcohol consumption in disciplinary cases, even if there is excessive alcohol consumption by the complainant. Such actions are not publicized by the University because of its responsibility to respect the confidentiality of the individuals involved in the hearing process. However, the community needs to know and understand that the University does follow up in all cases of excessive alcohol consumption that come to its attention. That the University will follow up in such situations should not discourage aggrieved students from filing a complaint. The University takes into consideration all aspects of the case for those involved, and its role in these matters is less punitive than it is educational. Such a position is consistent with how the University treats problems of substance abuse.

The Office of Student Life needs to be involved in greater efforts to ensure that the community understands the disciplinary process once cases have come to the attention of the appropriate individuals. Students need to know the options available to them in such circumstances. They need to know what they can and cannot expect from each of those options. And they need to know the details of every step of the process with each option. A fuller understanding will not only guarantee an informed community, but it may also help the community understand the complexities and challenges that are faced when there is a matter of conflict between two members of the community. How can this be done? Besides expecting students to read the code and the process in the Student Handbook, there need to be discussions and also demonstrations of possible cases, how they are adjudicated, what the final decisions are, and how they are arrived at. Obviously, this would mean developing a set of hypothetical or composite disciplinary cases to present. These demonstrations must be created with some care, lest they appear too simplistic. However, importantly, students need to have a concrete representation of what constitutes a serious offense and what happens once a complaint is lodged. Such examples have been used by the Office of Student Life in its orientation program for UDC members. These demonstrations or scenarios could be used in open meetings, in video presentations, in the Student Handbook, and/or on the Web. Finally, we believe that if the Brown community is better informed about how incidents of sexual misconduct occur and how they are dealt with, there may be less of a desire for the detailed community notification that comes out following each hearing. Moreover, students may have a greater respect for the process and be more willing to accept that both the complainant and the accused have received a fair hearing. In the best of all worlds, they may even be less interested in, nay obsessed by, knowing the details of the cases that actually occur.

An untapped resource at Brown is graduate students. Generally speaking, graduate students have not been included in the discourse on sexual misconduct. Graduate students occupy a unique position on campus, being at once students and educators. We encourage the Office of Student Life to incorporate graduate students into their educational efforts, particularly in regards to situations that may arise between teaching assistants and undergraduates. We also encourage the Office of Student Life to utilize graduate students as potential counselors and advisors, as they have recently done in placing graduate students in the dorms as residential counselors.

Our final remarks turn to the education of those individuals involved with the disciplinary process. Such education requires that each individual understand not only the process itself but his/her role in the process. The Crisis Counselors, Advisors in the disciplinary process, the Arbiters in structured negotiations, the Case Administrator all need to be well-trained in their respective areas of responsibility. Depending upon their role, they need to understand matters of process, matters of counseling and support, matters of negotiation, and/or matters of case presentation and adjudication. Everyone involved needs to be sensitive to the fact that both the complainant and the accused are at risk, perhaps in different ways, but that both parties, as members of the Brown community, have a right and expectation to be treated with respect, dignity, and care. The form of the education process for those involved in dealing with non-academic disciplinary cases should involve not only orientation, but also ongoing review, discussion, and self-evaluation. We believe that there are individuals at Brown who can provide such instruction. However, the University should be open to bringing in consultants and advisors on a regular basis to help enrich the base of instruction and exposure to new ideas and new approaches.

The UDC also needs to receive instruction on key aspects of the judicial process. UDC members need to understand the issue of burden of proof, and of the importance of separating the decision of violation of the code of conduct from the determination of penalty, once a decision has been made that a violation has occurred. They need to review examples of hypothetical or composite cases drawn from actual cases so that they may come to an understanding of the types of situations that they may hear. They need to know the range of decisions made by previous councils so that they may have a sense of precedent. Nonetheless, the discussions of cases should not be focused solely on issues of sexual misconduct, but on the range of types of cases that the Council actually hears. We also believe that the UDC should not receive any special `instruction' on matters of sexual misconduct beyond the substantial education on the issue we believe all members of the Brown community ought to receive. To do so may inadvertently `shape' the attitude of the Council, and, hence, ultimately tilt or skew the balance of the decision. Because the Council membership changes on a yearly basis, there needs to be an annual orientation which covers these issues. In addition, there need to be discussions on an ongoing basis. It may even be helpful for the Council to have a debriefing session after each hearing, not to rehear the case, but rather to consider issues of process that may have been particularly evident or difficult in that case.

Education is an ongoing and never-ending process. There is always more to know, more to learn, and more to understand. The University must incorporate education on a continuing basis for all members of the Brown community, not just for students, both undergraduate and graduate, who are here at Brown for only a few years, but also for the faculty and staff who work at Brown and who may be here for their entire careers. We must come together as a community to understand and work toward solving these very difficult and complex issues.

Conclusion

We close this report with a few observations and general remarks. Although we have made a number of suggestions to modify our current disciplinary procedures, 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. The changes that we have proposed reflect a change in tone, and a change in how we view the disciplinary process as a vehicle for upholding our code of conduct. Nonetheless, it is worth emphasizing that the process is only as good as the people who implement it. Good people make good process - good people who are fair, judicious, professional in behavior and demeanor, and who embrace the values that underlie our code of conduct. No amount of legislation can dictate the `right' outcome. And it is not just those who are part of the process who bear the responsibility for a fair system. The community, as well, provides the context in which these cases play out and around which all of these issues surface and are ultimately dealt with. In short, a `good' system is a community responsibility and a community effort which requires a spirit of cooperation and concern among students, faculty, administrators, and staff to maintain and guarantee an orderly and a humane community.

The tragedy of sexual misconduct is a real one. It is not just a problem between the individuals involved. Rather it is a problem that we, as a community, must embrace and attempt to solve. How we choose to respond is a reflection of who and what we are. There are no easy answers. Unfortunately, we do not believe that the recommendations that we have made in this report will provide a final solution. However, so long as we recognize that the solution to the problem of sexual misconduct is something we, as a community, must strive for, then we have come a long way to accomplishing our goal. We ask only that the community be a forgiving community, and that we, as a community have faith in ourselves, in our community and the values we represent, and in the process we have developed for maintaining and safeguarding those values.

(Return to news release number 96-122.)