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 Corporation's approval.

"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.

Observations

• 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.

General recommendations

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 recommendations include:

• 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.

Structured Negotiations

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 wanted.

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 witness;
  
  
• 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 fall semester."