Problem:

Because of Brown's relatively small size, the possibility that four or more undergraduate members of the Council may be prejudiced by association with the case, the participants, or by information or belief (Section IV.4.b) is considerable. Allowing the President or his designee to arbitrarily appoint temporary members to the Council defeats the purpose of the UDC selection process and compromises the integrity of UDC proceedings.

Proposed Changes:

We propose that the Non-Academic Disciplinary Code be changed to require the Undergraduate Council of Students to create an approved alternate list of no fewer than two students. In cases when three student members of the UDC cannot serve on a given UDC hearing, a temporary member shall be appointed from this approved alternate list.

Problem:

Brown presently has no adequate policy regarding the punishment of students who interfere with UDC proceedings by intimidating or harassing witnesses.

Offense X currently reads:

X. Misrepresentation:

a. Lying or material misrepresentation of information to an official University committee, council or Officer of the University, including Police and Security personnel.

b. Lying in the course of a UDC judicial hearing shall constitute an offense which is immediately actionable and for which the UDC may vote a penalty without the filing of a separate charge.

Proposed Changes:

We propose Offense X be expanded as follows:

Misrepresentation and Obstruction: (Clauses a and b remain unchanged)

c. Attempting to interfere with the outcome of a UDC hearing through the intentional harassment or intimidation of witnesses constitutes an offense which is immediately actionable, as in Section X, Clause b, or which may be filed as a separate charge, independent of the original hearing.

Notifying the University community of the outcome of cases heard by the UDC serves two functions: (1) Notification assures students of the UDCs vigilance in preserving the ideals set forth in the Standards of Student Conduct. (2) Notification makes the UDC accountable to the community it represents. Adequate notification is necessary to maintain the UDCs credibility and legitimacy among members of the Brown Community.

Problem:

The UDC provides the Brown community with insufficient notification of the outcomes of hearings.

Proposed Changes:

To ensure that the community notification following each UDC case fully and accurately represents the proceedings of the UDC in a given case, we propose a the following standardized UDC community notification form:

1. Date of Hearing

2. List of alleged violations of the Standards of Student Conduct

3. Time, date, and location of violation

4. Detailed description of actions in question and explanation of how these actions constitute a violation(s) of the Standards of Student Conduct

5. Verdict and summary of evidence and rationale leading to this conclusion, as allowable by the Buckley Amendment (Family Educational Rights and Privacy Act).

6. Penalty, if guilty verdict.

7. Summary of precedent/prioritization of sentencing and explanation of rationale for any significant deviation from the standard penalty as established by precedent and guidelines (see section regarding sentencing guidelines).

8. Significant Issues: A detailed summary of key issues raised and points contested by the University presenter, the charged student, or the members of the UDC panel. This shall also include the UDC panels explanation of how they resolved these issues.

9. Appeal: If the verdict is guilty, a brief explanation of the avenues of appeal open to the convicted student.

10. Dissenting Opinion: In the event that the verdict is not unanimous, the member(s) of the panel voting against the majority shall have the option to write an opinion explaining the rationale behind his or her vote.

Problem:

UDC members are presently given no guidelines or instructions regarding the sentencing of guilty students. Without clear guidelines, the attitudes of council members can have an undue effect on the sentence given. This subjectivity produces inconsistent sentencing.

Recommended Changes:

1. Prioritization of Offenses:

Although UDC members will still be given a great deal of latitude in determining an appropriate sentence for students found guilty of violating the Standards of Student Conduct, certain sentencing guidelines and systems for sentencing prioritization should be established in order to ensure predictability in UDC sentencing. LEVEL ONE:

• Arson which causes significant damage to personal or University property.
• First degree sexual assault (non-consensual penetration).
• Physical assault which results in serious bodily injury.

Suggested maximum penalty: Expulsion. Suggested minimum penalty: Two-year dismissal.

LEVEL TWO:

• Physical assault which results in lesser bodily harm or can be reasonably expected to cause bodily harm.
• Second degree sexual assaults (non-consensual fondling, groping, etc.).
• Non-arson related behavior which results in substantial damage to personal or University property.

LEVEL THREE:

• Verbal harassment. (see Aggravating Factors)
• The illegal provision, sale, or possession with intent to sell, of alcohol or drugs.
• Lying or material misrepresentation of facts during a UDC hearing.
• Possession of deadly and/or illegal firearms, ammunitions, explosives, etc. (see Offense VIII)
• Grand theft (over $1,000).

Suggested maximum penalty: Two-semester dismissal. Suggested minimum penalty: University sanction.

LEVEL FOUR:

• Petty theft or behavior which results in minor damage to property.
• Illegal alcohol or drug use.
• Fraudulent use of ID cards. (see Offense VII)
• Failure to identify oneself to a Brown Police and Security Officer.

2. Precedent

The relatively small number of cases brought before the UDC makes it difficult to establish precedent. Nevertheless, when cases arise for which precedent exists, the UDC panel should have the opportunity to consider past decisions. We suggest the following sentence be added to Section IV, Clause 3 of the Non-Academic Disciplinary Procedures:

Additionally, prior to determination of a penalty, the Case Administrator shall describe any similar cases and the penalties imposed for those cases.

3. Past offenses and/or current probationary status

Clause 3 currently states:

Prior to determination of a penalty, the Case Administrator may inform the UDC of any prior final decision which resulted in an adverse finding [against the student].

Since knowledge of past violation and currently existing sanction against a guilty student is crucial in the determination of appropriate punishment, we suggest that Section IV, Clause 3 be changed to:

Prior to determination of a penalty, the Case Administrator shall inform the UDC of any prior final decision which resulted in an adverse finding [against the student].

4. Aggravating and mitigating factors

While the severity of the offense should be the first consideration of the UDC in determining an appropriate sentence, the UDC should also take into consideration the following aggravating and mitigating factors.

AGGRAVATING FACTORS:

• Committing an offense based upon race, religion, gender, handicap, ethnicity, nationality, or sexual orientation of the complaining witness. (Hate crimes)

Crimes committed on the basis of race, religion, gender, handicap, ethnicity, nationality, or sexual orientation of the complaining witness are especially heinous. Such hate crimes victimize not only the object of crime, but every member of that community. Browns efforts to promote tolerance are admirable, but do not go far enough. We urge the University to officially denounce hate crimes and consider them aggravating factors in sentencing.

• Abusing alcohol or other drugs at the time of the offense.
• Having record of prior "guilty" UDC verdicts. (See Offense IX and "Past and/or current probationary status," above.)

MITIGATING FACTOR:

• Pleading "guilty" to an offense.

A system of justice works best when students guilty of a crime do not contest the charges, but rather, confess and accept the appropriate penalty. When a student confesses, the dangers of an incorrect verdict are avoided. Thus, a system of justice must provide students guilty of violations with an incentive to confess to their crimes. This incentive can come in the form of leniency in sentencing. If a system of justice refuses to treat confession as a mitigating factor, charged students have nothing to lose in pleading not guilty. This places undue stress on the justice system. For this reason, the UDC should consider leniency in cases where the charged student acknowledges his crime.

5. Victim specificity

Offense III, which prohibits sexual misconduct, bears special attention. In past cases of sexual misconduct, student have been dismissed until the complaining witness graduates. While victims should be protected from potentially traumatic encounters, the punishment handed down to a student convicted of sexual misconduct should be based upon the severity of the sexual assault committed, precedent, and the aggravating and mitigating factors listed above. Basing the punishment upon the year of graduation of the victim is unjust.

Problem:

The Office of Student Life has taken a strong position against double jeopardy. Of double jeopardy, Dean Robin Rose writes: The protection against double jeopardy is basic to our national system of justice and applies as well to Non-Academic Disciplinary Procedures in the University. We agree wholeheartedly. There is, however, no language in the Non-Academic Disciplinary Procedures that protects students from being tried more than once for the same offense. We suggest the following modifications to the Non-Academic Disciplinary Procedures to protect students from double jeopardy:

Proposed Changes:

Under our proposal, this article would be added at the end of section IV of the Non-Academic Disciplinary Procedures.

Double Jeopardy: Under no circumstances shall a student be examined more than once for the same offense without his/her consent.

Currently the President of the University has the authority not only to change a UDC verdict from guilty to not guilty, but to change a UDC verdict from not guilty to guilty. This clearly violates the students right to immunity to repeated examination for the same crime. At the heart of the double jeopardy doctrine is the idea that an accused person may be involuntarily subjected to examination for a given offense only once; the accused person must agree to any subsequent examination at the appellate level.

Whether the examination takes place in the meeting room of the UDC or in the mind of the President, a second examination violates the students immunity to double jeopardy. The following changes to the Non-Academic Disciplinary Code would protect the students immunity to double jeopardy.

IV.9 currently reads:

a. Authority. Notwithstanding the right of the student(s) to appeal, the President of the University shall have the power to review, at his own initiative, the decision of the UDC and the Dean of Student Life as to both the guilt or innocence of the charged student(s) and the penalty imposed. Upon review, the President shall have the authority to affirm, reverse, or modify the decision and/or increase or decrease the penalty imposed. There shall be no appeal from a decision rendered by the President in accordance with his review power.

b. Notice of Intent to Review. The President of the University shall have ten (10) days from the rendering of a UDC determination that a violation did not occur or an approval of a penalty by the Dean of Student Life to provide notice of his intention to review the decision. Notice of intent to review shall be provided to the charged student(s), the Dean of Student Life, and the Presenter of the case that is being reviewed. Such notice shall additionally inform the parties of the review process to be followed. Should the President fail to provide notice within the specified time period, the decision of the Dean of Student Life shall be final, subject to the appeal provision specified above.

c. Notice of Decision. The charged students(s), the Chair of the Council, and the Presenter of the case reviewed shall be notified in writing of the decision of the President and of any penalty imposed as soon as possible.

Under our proposal, Clause 9 would read:

9. Power of Review in the President. The charged student(s) may appeal the decisions of the Council, the Dean of Student Life, and/or the Provost in a disciplinary matter to the President of the University or his designated representative. Appeals will normally be considered only when new evidence which was not reasonably available at the time of the hearing decision or the appeal to the Provost becomes available or when an allegation of substantial procedural error on the part of the University or the Council is made. The president shall have the power to affirm, reverse, or modify the decision and/or the penalty imposed. There shall be no appeal from a decision rendered by the President in accordance with his review power.

This revision of Section IV, Clause 9 makes three important changes in the Presidents Power of Review. (1) The revision makes the Presidents power of review subject to the limitations of the double jeopardy doctrine by making it impossible for the President to change a not guilty UDC verdict to guilty. (2) This revision requires the student to request an additional examination; the student cannot be examined repeatedly for the same crime without his or her permission, as is mandated by the double jeopardy doctrine. (3) This revision expands the Presidents power of Review by lifting the 10 day time limit for appeals. Under the proposed version of Clause 9, the President may choose to hear an appeal by the charged student at any time following the rendering of a UDC decision.

Problem:

The Procedures for UDC hearings currently allows the UDC to hear a case before the accused student has been notified of the charges against him or her.

IV.5.c currently reads:

Expedited Hearing(s). A UDC hearing may be held less than ten (10) days prior to the giving of such notice when the presenter of the case requests an expedited hearing and presents to the Chair of the UDC the facts necessitating the expedited hearing and the Chair of the UDC consents in writing to the convening of an expedited hearing.

Proposed Changes:

We feel it is inappropriate for a student to be tried before being notified of the charges. Under our proposal, Section IV, Clause 5.c. would be changed to read:

Expedited Hearing(s). A UDC hearing may be held less than ten (10) days after the giving of such notice when the presenter of the case requests an expedited hearing and presents to the Chair of the UDC the facts necessitating the expedited hearing and the Chair of the UDC consents in writing to the convening of an expedited hearing.

Section IV, Clause 4.d.4 currently reads:

Complaining Witness. During a disciplinary hearing involving a sexual misconduct offense, the complaining witness shall be entitled to remain in the hearing room during the course of the hearing unless the Chair determines otherwise.

While we agree with this provision, we strongly urge the University to extend this right to all complaining witnesses and not only those in sexual misconduct cases. Regardless of the nature of the alleged offense, the complaining witness has a right to view the justice process firsthand. By not allowing the complaining witness in certain offenses to be present for the entire hearing, the University denies the complaining witness the comfort of knowing for certain that his or her interests are being effectively and fully represented. We propose this clause be changed as follows:

Complaining Witness. During a disciplinary hearing the complaining witness shall be entitled to remain in the hearing room during the course of the hearing unless the Chair determines otherwise.

Members of the UDC make decisions that have a tremendous impact on the lives of students. Every effort should be made to ensure that UDC members have the skills to make informed and fair decisions. We feel strongly that UDC members should be required to undergo more extensive training before hearing a case.

The questions of how evidence should be accumulated, handled, and evaluated are complex, and we are not yet ready to present a comprehensive evidence code. Nonetheless, we have one proposal that we feel is appropriate to discuss at this time.

Section IV, Clause 1 currently reads:

1. Evidence. Formal rules of evidence do not apply at Council hearings, and the Council may admit information it considers to be trustworthy and to have potential value. The Council may exclude any information it considers to be unduly repetitious, untrustworthy, irrelevant, or immaterial to the issue before it or to have been improperly obtained.

Often the most important evidence is the testimony of witnesses. When witnesses do not come forward with their testimony, the integrity of the proceedings is compromised. We propose that the Non-Academic Disciplinary Code be changed to explicitly give the Office of Student Life the right to take out advertisements in campus publications soliciting witnesses when appropriate. This would help to alleviate the problem of witnesses not understanding the importance of their testimony and thus, not making themselves available to the Case Presenter. We propose the following sentence be added to Clause 1.

When appropriate, the Office of Student Life may use advertisements in campus publications to solicit witnesses. (As allowable by the Family Educational Rights and Privacy Act)