Brown, Like Yale, Screws up on Due Process

A few years ago, the Patrick Witt case at Yale exposed the unwillingness of an Ivy League institution to uphold even the minimal due process protections the schools accord to students accused of sexual assault. Witt, recall, was a star quarterback who withdrew his Rhodes application, the interview for which coincided with the Harvard-Yale game. An article by the Times‘ Richard Pérez-Peña implied (without producing any evidence) that Witt had withdrawn his candidacy because he was accused by another student of sexual assault. As the essayist Richard Bradley noted at the time, the Times “allowed itself to be used to publicize an anonymous accusation of ‘sexual assault’–rape–and smear a young man’s character, reputation and future through implications that it can not verify and insinuations that it can not prove.”

It turns out, of course, the situation was far worse than that. Though Pérez-Peña never revealed it, Witt had been charged under Yale’s “informal complaint” procedure. The accuser can file a claim based on a “worry” and then receives “considerable control . . . as the process unfolds,” while the accused student doesn’t even have a right to present evidence of his innocence. In this Alice-in-Wonderland structure, the accused student had one and only one protection–an absolute right to confidentiality. But that right was violated (a google of Patrick Witt and “rape” or “sexual assault” now yields more than 10,000 hits)–and there’s no indication that Yale ever investigated the breach of confidentiality.

Yale is unusual in the extreme nature of its policies (few universities have any type of sexual assault procedure that prevents the accused student from presenting evidence, though Swarthmore’s forbids him from even mentioning the charges to an attorney). But most schools feature Yale’s combination of processes wildly titled to the accuser plus a promise of confidentiality. It should be clear how extraordinarily unfair this system is. If the accused student is actually a rapist, then universities have a system in which rapists aren’t publicly identified. But if he’s innocent, his chances of an acquittal are meager–and his only protection is the promise of confidentiality, which at the least will limit the effects of an unfair conviction.

Late last week, a Witt-like experience occurred at Brown. I recently wrote of the efforts–let by “rape culture” cheerleader Katie Baker–to use the experience of Lena Sclove to crusade against due process at the Rhode Island school. Sclove claimed to have been raped, but declined to pursue criminal charges (many months later she said she filed a police report). Instead, at the urging of Brown administrators and in line with the general efforts of “activists” to adjudicate claims on campus (with a lower threshold of guilt), she filed charges through the Brown disciplinary process. That process denies to the accused student the right to an attorney, gives him only seven days to prepare a defense, and determines guilt through a preponderance-of-evidence (50.01% percent) threshold. The only legitimate protection: “To be afforded confidentiality, in accordance with University practices and legal requirements.”

The system worked as intended for Sclove; she obtained a conviction, and the accused student was suspended–but not expelled–from the university. (University administrators–people who don’t have a due process-friendly reputation–informed Sclove that the punishment was consistent with precedent.) In response, Sclove and her supporters launched a public campaign, which included not only the Baker interview but a rally, in which the name of the accused student, Daniel Kopin, was revealed. The Brown Daily Herald (which under different editorial leadership did an excellent job in the Dresdale case) repeated Kopin’s name, and falsely referred to the incident as a “rape.” (The paper subsequently apologized for the latter item.) In response to the outcry, Kopin announced that he would not return to Brown, an outcome that Sclove’s father deemed “excellent.”

Imagine the reaction if Kopin had breached confidentiality and revealed Sclove’s identity against her wishes. Will Brown launch an investigation of Sclove and her supporters for the breach of confidentiality? Don’t count on it. Indeed, a statement from President Christina Paxson suggests there will be procedural changes to tilt the process further in favor of accusers.

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

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