Clarification appended.
A rape case on a college campus is a unique phenomenon. It places university administrators in an unfamiliar position — that of attempting to determine whether one student has committed a felony against another. A rape investigation involves more complex evidence than a case of plagiarism or underage drinking — and the stakes are much higher.
If a campus rape investigation wrongly exonerates a guilty student, the victim of a violent crime can be further scarred. If it wrongly finds a student responsible, an innocent person faces the lifelong consequences of expulsion. Unsurprisingly, the handling of rape investigations on college campuses has been the subject of much controversy, both nationwide and at Brown.
Currently, William McCormick is suing the University and two alums — a woman who accused him of rape in 2006 and her father — claiming that he was falsely accused and that Brown failed to give him a fair hearing because his accuser's father is a University donor and fundraiser.
Emails written in the days before McCormick was accused of rape and removed from campus — recently made public during the course of the lawsuit — highlight obstacles to adjudicating rape cases through university tribunals.
Hidden bias
The emails, sent between the accuser's father and her residential counselor, Shane Reil '09, show that in the days leading up to the rape allegation, the alum's father, a prominent financier, offered to discuss career prospects with Reil. A day after the email conversation ended, the female alum accused McCormick of rape. A week later, Reil authored a damning appraisal of McCormick in his witness statement for the University sexual misconduct hearing.
In the emails, written after the father hosted Reil and a friend of his daughter at the home of another financier in Providence, Reil wrote, "(Your daughter) also expressed to me that you would not mind helping me trying to straighten out a path for my future." After discussing his career aspirations in the email, Reil added, "Thank you again for dinner, and for making yourself available to me as a mentor. I cannot begin to express to you how grateful I am that I can speak to someone who wants to offer me advice, rather than ask me for it."
In his response, the father wrote, "I am happy to offer my thoughts on career plans and things you might think about. … Let's talk when I am at Brown this fall."
The next day, Sept. 13, 2006, the female alum, who had previously taken out a harassment complaint against McCormick, accused him of raping her on the evening of Sept. 6.
A week later, Reil filed a witness statement for the sexual misconduct hearing. Reil's statement indicates that McCormick had asked an unnamed student to lie about his whereabouts on the evening in question. It also describes McCormick as "emotionally eccentric" and "a tense individual who is prone to anger." Witness statements filed by other students state that McCormick punched a wall in anger after his accuser ditched him at the annual orientation dance. The statement concludes, "He does not seem to have any handle on his emotions."
What the statement does not include is disclosure of the relationship between Reil and the accuser's father, revealed in the emails. In the witness statement, Reil describes himself only as "a residential counselor in Keeney Quadrangle."
But Reil's nondisclosure of a potential source of bias does not violate any University rules governing disciplinary procedures. "There are no specific rules regarding disclosing relationships," wrote Jonah Allen Ward, senior associate dean of student life, in an email to The Herald, though he added that witnesses are expected to be truthful in their accounts.
"If you lie during a conduct board hearing, that's an offense against you," said Margaret Klawunn, vice president for campus life and student services. According to the Code of Student Conduct, "Lying in the course of a student conduct hearing constitutes an offense that is immediately actionable."
Much of Reil's testimony consists of his opinion of McCormick's personality and is not entirely composed of factual assertions. And in the absence of definitive hard evidence — the University did not allow a pair of boxer shorts allegedly worn by the accuser during the rape to be sent out for testing or admitted as evidence — such character appraisals necessarily take on more importance.
It is unclear what role, if any, Reil's statements would have played at a hearing on the rape allegation — McCormick signed an agreement with his accuser to withdraw from Brown before the case could be heard. McCormick maintains he had reason to believe he had no chance of a fair hearing and that he signed the agreement only under duress. It has been revealed that his law firm at the time he withdrew, Adler Pollock & Sheehan, was representing the University in federal court at the same time — an apparent violation of the American Bar Association's conflict of interest rules.
The University, McCormick's accuser and her father deny wrongdoing.
Anna Cordasco, a spokeswoman for the accuser and her father, declined to comment. In an email to The Herald, Reil also declined to comment. Though University administrators commented on disciplinary procedures in general, they declined to comment on McCormick's case. The Herald is withholding the name of the female alum because she may have been the victim of a sex crime.
The problem of Reil's witness statement is representative of the procedural shortcomings that have led many critics to argue that universities should leave rape investigations to police and the courts.
Rape hearings on campuses
But the question of universities' role in investigating rape allegations is a thorny one, and Title IX guidelines set forth by the Department of Education's Office of Civil Rights mandate that universities have "grievance procedures" in place to address sexual misconduct allegations and to take "prompt and effective action calculated to end the harassment, prevent its recurrence and, as appropriate, remedy its effects."
Despite the law's mandate, universities have been criticized both for failing to afford accused students due process and for failing to protect victims of sexual assault.
Robert Shibley, senior vice president of the Foundation for Individual Rights in Education, said he worries that universities may be intent on conducting hearings expeditiously without also ensuring that appropriate procedures are in place to guarantee equitable outcomes.
"This case is an extreme example that is symptomatic of a larger pattern," said Azhar Majeed, associate director of legal and public advocacy for the foundation, of the McCormick case.
Majeed said universities lack the expertise to deal with the complexities involved in sexual misconduct cases, particularly in cases that hinge on "he-said, she-said" evidence. Due process rights may not be fully extended to the accused as they would in a court system, he said, adding that, in an effort to pursue a quick resolution to the matter and protect the campus, universities can have a "tendency to tilt the playing field in favor of the accusing student."
But universities face criticism on both fronts. The charge is frequently leveled that rape — a crime already underreported because of the stigma attached to it — is swept under the rug by university administrators wary of their schools' public images, leaving victims alienated and perpetrators unpunished.
Universities' handling of sexual misconduct has risen to the forefront of national debate after the Department of Education announced it was investigating a complaint that Yale permits a hostile sexual environment on its campus. Earlier this month, Vice President Joseph Biden
and Secretary of Education Arne Duncan unveiled updated sexual assault guidelines for colleges, saying universities are not doing an adequate job in addressing sexual assault on campus, particularly in meeting the needs of victims.
But not everyone agrees that campuses are an appropriate venue for addressing the most serious forms of sexual misconduct. Administrators should not address a criminal offense against a sexual abuse victim with the same kinds of disciplinary processes used to address an "overdue library book," said Katherine Hull, vice president for communications for the Rape, Abuse and Incest National Network. "It is a crime that should be handled through law enforcement."
Brown administrators, though, say the University is capable of successfully handling rape cases. Ted von Gerichten, associate counsel for the University, said he believes the University provides an adequate process that balances Title IX's call for a quick and effective response with due process rights for the accused.
The University has a "pretty robust" policy in place to support due process and fair treatment of both the accused student and the one bringing a complaint, he said. "Embedded within our code are the concepts of trying to give individuals a fair hearing," he said. "We have a lot of process in place for giving notice, giving people the opportunity to present witnesses (and) statements (and) have advisers."
"A university has the administrative process that works for it. I'm not going to say it's perfect. I don't think any institution has perfect procedures," von Gerichten said. "We have the resources available to get to the truth as best as we can."
University v. judicial proceedings
University procedures differ from those of police and the courts in their length, thoroughness and standards of evidence. "We're not a criminal process, and we say that from the get-go," Klawunn said. At private universities, victims of sexual assault have the option of pursuing remedies through university procedures without pursuing criminal complaints.
In criminal courts, an offense must be proven beyond a reasonable doubt. In Brown disciplinary proceedings, verdicts are made based on "the preponderance of evidence" — a lower standard often used in civil trials.
In addition, Title IX requires that universities' responses to sexual misconduct be "prompt," whereas criminal investigations and trials can take months — or longer if a conviction is appealed.
While Brown's processes are swifter, the courts are often more thorough. And some kinds of pertinent information, like Reil's relationship with the female alum's father, would be far more likely to come to light during the course of a criminal investigation and prosecution.
Within the judicial system, parties have the opportunity to uncover potential sources of witness bias during discovery, said Robert Friedman, professor of law at the University of Michigan. "It's not just that the witness is sprung on (the defendant)," he said. During this period, both sides are permitted to ask questions of witnesses and compel the owners of relevant documents to turn them over.
In the federal court system, there are laws in place to force the prosecution to disclose evidence that may undermine a witness's credibility, Friedman said. He said that Supreme Court's rulings in Brady v. Maryland and Giglio v. U.S. stipulate that prosecutors must release to the defense any "exculpatory evidence" — that which may be helpful to the defendant.
The viability of the courts
The argument that the evidence in some rape cases is too complex to be handled internally is one the University has accepted in the past.
In 1996, the University Disciplinary Council declined to hear a rape case after the accused student's adviser argued the evidence was too complex and could only be properly handled by the courts. The University accepted the argument and declined to hear the case. But the accused student was a relative of the Jordanian royal family and questions of diplomatic immunity arose after the decision was made. His father had donated money to Brown, and his adviser's research in Jordan depended on the royal family's cooperation. The Department of Education's Office of Civil Rights opened a Title IX investigation, which was later halted when the parties involved and the University reached a secret out-of-court agreement.
Despite the suspicions surrounding that University Disciplinary Council's decision, many with experience in college rape cases agree with the sentiment that courts handle the cases better than colleges. And representatives from both the Rape, Abuse and Incest National Network and the Foundation for Individual Rights in Education told The Herald last year that universities do not protect victims' identities any better than police and the courts do.
But campus disciplinary proceedings sometimes provide the only viable recourse for rape victims, said a female student who brought a rape complaint this year through the University. The same factors that complicate the evidence in rape cases also make it more difficult to obtain a conviction in a court of law. "It's a real legal conundrum," said the female student, who spoke on the condition of anonymity.
She said the judicial system is not set up to handle cases like hers — a rape allegation lacking physical evidence — but that "it's the school's job to protect its members" and provide "some type of justice."
Due to revisions to the University's sexual misconduct policies in 2010, the female student's case was automatically referred to a Student Conduct Board hearing — more formal than the administrative hearing that McCormick was scheduled to face before he withdrew from Brown. During the hearing, she said she, the accused student and witnesses faced extensive questioning from an administrator, a faculty member and a student on the board. In her case, the board found the accused student guilty of rape.
The female student said she believes the University performed well under the circumstances.
Not above reproach
In rape cases, universities find themselves stuck balancing between considerations of speed and exhaustiveness, between the rights of the accused and protection for victims and between the requirements of the law and recognition of their own limitations.
With the stakes so high, and the evidence frequently difficult to interpret, these processes face a more intense level of scrutiny than other administrative actions do.
University sexual assault investigations are held to a higher standard than other administrative actions. Like Caesar's wife, they must be above suspicion to avoid criticisms of their integrity. But McCormick's lawsuit raises suspicions about Brown's policies that remain unallayed.
And, with Reil's emails, critics of the University's policies have hard evidence to point to in making their case.
A previous version of this article did not explain why the name of McCormick's accuser was withheld.
