[KC Johnson and Stuart Taylor] Campus sexual assault and the Brown trial

Although the general rule on America’s campuses today is that students accused of sexual assault are denied a fair chance to defend themselves, some schools stand out for their special zeal on the matter.

This list includes Amherst, Swarthmore, Occidental, Columbia and Brown; this post examines Brown, which has been sued by at least four accused students in recent years. It has not prevailed in any of those cases, with one pending. Yet even as the university was suffering multiple defeats in the courts, it has revised its procedures — under strong pressure from students and some faculty — to weaken the meager protections that accused students once had.

These changes led to the first full-scale trial in a campus sexual assault lawsuit since before April 2011, when the Obama administration required colleges to adopt procedures more likely to find students guilty. The trial occurred this past summer, before Chief Judge William Smith of the U.S. District Court in Providence. The public nature of the proceedings exposed in detail the troubling execution of Brown’s secretive process.

The case began in November 2014, when two members of the Brown debate team (whom we’ll call Sarah Sanders and Joe Jones) engaged in a brief period of flirtation, including hundreds of text messages. Jones made clear he wanted to have sex with Sanders but had no interest in a relationship. At one point he texted her that he wanted to “manipulate” her — an especially unfortunate choice of words, as it turned out — into agreeing with him. The two eventually had sex while watching a movie. Later, Sanders told a roommate that she wanted to hook up with Jones again. And the two briefly continued to flirt through texts. Then Jones told Sanders that he wanted to have sex with one of her friends and asked her to put in a good word for him. Sanders passed this along to the friend, whose reaction was, understandably, very negative.

Under prodding from the same friend, Sanders eventually came to decide that she had not consented to sex with Jones while watching the movie, and thus that he had sexually assaulted her. Sanders never reported this alleged crime to the police. And unlike most campus sexual assault accusers, she had not been drinking that night (nor had Jones), and thus could not claim that she had been incapable of giving legal consent.

Sanders did, however, file a sexual assault claim with Brown, around a year after the alleged sexual assault. A few months before, Brown had begun the 2015-2016 academic year by expanding its definition of sexual assault, as discussed below. Moreover, the university adopted new procedures for adjudicating sexual assault allegations. Under these procedures, the Title IX office hires an investigator, who produces a preliminary report for the university. The case then proceeds to the Title IX Committee, chaired by Professor Gretchen Schultz, a specialist in gender and sexuality studies. As a non-voting member, Schultz chooses three panelists (all members of the Brown community) to hear cases with her. That panel hears separately from the investigator, the accuser and the accused student; the accused student cannot cross-examine either the investigator or his accuser. In the case at trial, Schultz was also a non-voting member of a three-person panel assigned to hear Jones’s appeal, and thus participated in the discussion about whether a decision in which she had played a part was wrong.

Following 2014 Obama administration guidance that colleges provide “training” for members of sexual assault disciplinary panels, all members of the panel that heard Jones’s case received training from university administrators. While Brown, like all other universities, has refused to publicly release its training materials, the gist of the materials that have leaked from Stanford, Middlebury and some others raises serious questions about the fairness of these items. It’s as though criminal prosecutors were permitted to show jurors materials designed to make them more likely to convict, in secret meetings closed to the defense.

One of the Brown panelists, Associate Dean Besenia Rodriguez, testified to Smith that the school’s training had led her to ignore the fact that Sanders sent text messages after the incident discussing the encounter in a highly positive fashion and referencing a “plan” to again have sex. As Smith later observed, Rodriguez’s admission that she chose to ignore this highly relevant, seemingly exculpatory evidence likely violated Brown’s own procedures. It also showed the danger of one-sided training.&l