Awaiting Developments at Brown

As we await final resolution of the first due process trial since issuance of the Dear Colleague letter in 2011 (at Brown), a few updates.

But, first, the basics of the case: the accused student was found guilty, by a 2-1 vote, on a theory that he had manipulated the female student into having oral sex. This outcome came after: (a) the Brown panel used a broader definition of consent, adopted in summer 2015, for an event that occurred in fall 2014; (b) Brown’s investigator declined to request from the accuser the full range of texts she sent to a friend—who harbored a dislike of the accused student, and who would be a key witness in the case; and (c) Brown had changed its sexual assault procedures, to create specially “trained” tribunals whose membership pool was more than 80 percent female (and whose male members seemed inclined to presume guilt).

Among the updates, the most important: Judge William Smith, a Bush II appointee, issued a preliminary injunction late last month in favor of the accused student. The decision, which Smith had telegraphed at closing arguments, allowed the student to enroll this fall. Smith’s order reiterated that he still could come down in Brown’s favor (though that seems unlikely). He also made clear in closing arguments that if he sides with the student, the victory would be at most a partial one, returning the matter to Brown to allow the university to try the student again.

Second, a campaign apparently initiated by a Brown student named Alex Volpicello has sought to pressure Smith to rule in Brown’s favor. (It is unclear if Volpicello has any relationship to the accuser.) Reflecting the newfound willingness of many elite students to trust the decisions of their university tribunals, no matter now unfair the procedures, Volpicello appeared untroubled by Brown’s lawyer suggesting at closing argument that a “power differential” (leading to coercion) might have existed between the two students—based on the fact that the two belonged to the same club (debate) and the male student was a year ahead of the accuser in school. Nor did the protesters find fault with Brown’s lawyer excusing Brown’s “training” materials on grounds that OCR required such training (but even OCR doesn’t require biased training); or citing OCR to explain away the investigator’s failure to ask for key text messages; or the impact of Brown’s “training,” which at least one panelist interpreted as requiring her to ignore exculpatory texts from the accuser sent after the alleged assault. Volpicello and associates launching their campaign through private letters/e-mails rather than through an amicus brief also suggests a desire to game the system. It seems unlikely that a life-tenured judge will be pressured in this way.

Finally, the preliminary injunction received some media coverage—both on campus, in the Brown newspaper, and nationally, through the Wall Street Journal. The Journal article, by Melissa Korn, had the tone (without ever saying so explicitly) that the accused student likely was guilty. Perhaps this was because it was informed by “the independent investigator’s report to the Title IX Council regarding [the accuser’s] complaint, a copy of which was reviewed by The Wall Street Journal.” The report, prepared by Djuna Perkins, wasn’t part of the public record of the case; given its (apparent) conclusions, it seems unlikely that the accused student or his lawyer leaked it to the WSJ.

That said, it was odd—given the reference to the report—that the WSJ didn’t mention Judge Smith’s repeated expressions of concern with Perkins’s work from the 95-minute closing arguments. For instance, Smith deemed Perkins’s explanation as to why she hadn’t asked for texts between the accuser and a key witness (that she already knew the duo harbored “animus” for the accused student) a “non-sequitur.” (Her argument, the judge continued, “doesn’t make any sense.”) Smith also worried that the investigator had exceeded her authority—Brown’s policy says the investigator isn’t supposed to tell the panel whether she thinks the accused student is guilty, but in this case she essentially did so by pronouncing the accuser more credible. (Why didn’t that “seal the deal” in the lawsuit, the judge asked Brown’s lawyer.)

Judge Smith described the heart of the accused student’s argument as “layered,” amounting to the following: (a) the university shouldn’t have used the 2015-2016 definition of consent for an event that occurred prior to its adoption; (b) even if it was OK for Brown to use the broader definition, it should have done so openly, to give the accused student a chance to defend himself, rather than telling the panel (but not the student) that the broader definition was in play; and (c) even if Brown had so told the accused student, what he did wasn’t manipulation, so he still should have been found not guilty.

Smith’s ruling in the bench trial is pending.

3 thoughts on “Awaiting Developments at Brown

  1. I am not sure what the “trauma theory” is (paragraph 94 from the Storify link) or whether it has any empirical validity. It sounds like a way to disregard inconvenient statements from the accuser. If one does not want to “judge” the accuser, then one is implicitly saying that the accuser is always truthful. If the comments on the code are not binding (paragraph 32 from the Storify link), then why offer them to students?

  2. Alex Volpicello suggest some text to send to the judge, which read in part: “I know that many women do not report the atrocities that are committed upon them, not because the assailant cannot be caught (which your calculus solidifies), but because the assailant often does not understand that they are inflicting real, irreparable harm on the community.” This is not even a coherent thought (why would a woman not report something due to the belief of the assailant?). However, I would like to set this aside for a moment and just compare the first portion to something said in Maura Lerner’s article. “Since the vast majority of rapes are never prosecuted, she [Christy Hall, of Gender Justice] added, ‘I think it’s fair that a college has something that’s less than the criminal due process to figure out what to do in these cases.'” The assertion that the vast majority of rapes are never prosecuted is itself open to extensive question; however, I am willing to take it as a given for the sake of argument. What does that have to do with what standard one adopts? IMO given that colleges and universities can inflict “career capital punishment” in the words of one university president, clear and convincing evidence is a better standard. However (as discussed in a comment thread at Simple Justice) the right standard means very little if the people responsible for rendering a decision are untrained, or worse, trained improperly.

  3. Just thinking out loud but I am trying to understand why the Title IX advocates are interested in the number of unreported rapes (see comment above). Could it be that they are making a utilitarian argument, that it is better to punish some unjustly in order to prevent other rapes? Or are they arguing that a present respondent is generally a serial assaulter, and that by punishing him in one case, we are punishing him for his prior crimes or preventing him from committing future crimes? One wishes that they would spell it out more clearly than I have seen, but either of the possibilities that I suggested run contrary to what I understand of general criminal justice procedures.

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