Body

Analysis / Summary of the Ad Hoc Committee Report

compiled by Rob Letzler

June 15, 1997

The numbers in parentheses refer to the 4 parts of the Blumstein Ad Hoc Committee Report.

"The changes which have led to the more recent system were made in the interests of ensuring a clear-cut set of processes and procedures, and they have succeeded in doing so. However, at the same time, they have also produced a system which has become increasingly adversarial and quasi-legalistic. Not only do we feel that Brown is ill-equipped to try to mirror the legal system, but we believe that an adversarial system is antithetical to the principles that underlie the university. These principles are first and foremost to educate and to provide an open forum for the exchange of ideas and information for the purpose of making informed decisions based on a `hearing' from all sides and perspectives. We underscore here once again and assume that, as in the past, our disciplinary system is based on the principles of due process and fairness."

The Ad Hoc Committee calling for careful dialog -- arguably in the fall

"We do not consider this report to be the 'final word' on the issue of sexual misconduct at Brown. Rather it is one step in an ongoing and evolving process of review and discussion . . ." (intro)

"[W]e hope that our observations and recommendations will serve as a general framework which may serve as a basis for dialogue with the university community . . ." (intro)

Potentially Serious Encroachment on Civil Liberties.

Inquisitorial method of adjudication

"[I]t is essential that both the complainant and the accused receive support [and] that due process be guaranteed . . ."

"Community members . . . need to feel that they will be treated with fairness and compassion, and that the goal of the system is justice."

"[UDC] will assume responsibility for asking all questions and ensuring that both sides are heard."

"Should either the complainant or the accused have additional questions . . . they will be asked through and by the council."

"[UDC] will need to understand the nature of the questions that can and should be asked." UDC will be trained on asking very difficult questions of both sides. "And they will need to learn what the appropriate limits of such questions may be."

greater secrecy around the process

"Community notification should provide only a very brief description of the offense, finding, and penalty. The current notice is so detailed that we believe it provides more than is necessary or helpful in a process that is meant to be confidential in nature. We believe it also feeds into the curiosity of the community about these cases and increases the desire of community members to guess the identities of the participants and to second guess the decision of the Council." (3)

-If a member of UDC breaches confidentiality, it could be treated as "a major violation of the code of conduct." This would stifle whistle blowing.

"The community needs to understand that the process is confidential . . . Thus, to rush to judgment about the 'competence' of the UDC may simply be unfair."

But "Education is a core value of our community [which] should serve as a guiding factor in all of our institutional and personal practices."

trial without the defendant present or of students who have withdrawn from Brown

"[T]he hearing process should continue even if the accused student does not appear or has withdrawn . . . . The hearing body should render its decision even in the absence of the accused."

"We begin with an assumption that we are a special community, tied together by the particular set of values and principles set forth in our mission statement and in the Tenets of Community Behavior." (intro)

"Membership in the Brown community is a privilege, not a right, and carries with it an expectation that all members embrace the code of conduct set out in the Tenets of Community Behavior."

Therefore, is it fair to impose these standards that are applicable nowhere else on people who have chosen to leave the Brown community

Lesser threats to civil liberties

rather than finding someone guilty or innocent, UDC would find whether the student violated the code. Are they trying to diminish the seriousness of the effects on the accused through word games.

"The terminology may also help the community recognize that a finding of a violation or not speaks neither to the credibility of the complainant nor the accused." (2)

"Every student [found guilty] should be eligible for an appeal, but there should be strict conditions that determine when an appeal is allowed. . . . . We reaffirm the [existing set of] conditions for appeal." (3) (This appears to be no change from the current system.)
increasing penalties for dean's hearings to 1 semester suspension
structured negotiation in the hands of a cynical accuser could be very chilling. Negotiation theory holds that the side with that has the greater "best alternative to negotiated agreement" is in the commanding position. In a Brown Structured negotiation, the accuser would have good alternatives to a settlement, like UDC and or going public in the BDH, which are also terrible outcomes for the defendant. Thus a cynical accuser could get any settlement he would like. Further, if an accuser begins the structured negotiation process, OSL will evaluate the situation and can insist on disciplinary action. "If the complainant is unwilling to bring forward a complaint, then the Office of Student Life will need to intervene via the Dean's disciplinary process . . . ."(3) This is open to abuse by overzealous deans.

Provisions that seem to be major improvements

improved definition of Sexual misconduct -- specific definition of consent and the prerequisites for consent

"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 (e.g. highly intoxicated, asleep, or unconscious)."

consistent rules across UDC

"However, we note that [under current procedures] the complainant may be present throughout the hearing only in cases of sexual misconduct. For consistency, we recommend that the complainant be allowed to attend the hearing in all disciplinary cases."

additional awareness of the UDC process and training for UDC members

"We also believe that the UDC should not receive any special `instruction' on matters of sexual misconduct beyond the substantial education on the issue we believe all members of the Brown community ought to receive. To do so may inadvertently `shape' the attitude of the Council, and, hence, ultimately tilt or skew the balance of the decision." (4)

"It may even be helpful for the Council to have a debriefing session after each hearing, not to rehear the case, but rather to consider issues of process that may have been particularly evident or difficult in that case." (4)

UDC precedent training

"They need to know the range of decisions made by previous councils so that they may have a sense of precedent." (4)

not hearing a case will require a 2/3 majority of the council

Provisions that are minor improvements or do not raise any civil liberties concerns

"[B]oth the accused and the complainant should be able to [get] help and advice about the system . . ."
"[G]reater efforts to ensure that the community understands the disciplinary process . . ." (4)

"[W]e believe that if the Brown community is better informed about how incidents of sexual misconduct occur and how they are dealt with, there may be less of a desire for the detailed community notification that comes out following each hearing."

Miscellaneous

"we recommend that the university sponsor the production of a series of video tapes of SAPE dramatizations that could be shown and discussed in a variety of forums." (4)

"The entire Brown community needs additional proactive educational programs about alcohol consumption" (4) and rumblings about disciplinary action for alcohol violations

"process is only as good as the people who implement it. Good people make good process" (Conclusion)

"[W]e 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." (Conclusion)

Orwell Strikes

[The university's fundamental principles for a disciplinary system] are first and foremost to educate and to provide an open forum for the exchange of ideas and information for the purpose of making informed decisions based on a `hearing' from all sides and perspectives.

-this open forum is closed and its proceedings are kept secret from all but a select few.

-the exchange of ideas only happens at the pleasure of the panel -- which will ask all questions

"These [guilt finding] processes reflect the community's values, and are a means by which the community `comes together' through its processes to determine whether a violation of the Tenets has occurred."

-a community of over 6000 comes together when 7 members assemble.

"The community needs to understand that the process is confidential . . . ." but, "Education is a core value of our community [which] should server as a guiding factor in all of our institutional and personal practices."