Sexual assault at Brown

Are the policies meant to protect students --
or the university?

by Jody Ericson

Something happened on the Brown University campus on September 3, 1996. He claimed they'd had sex, and it was consensual. But she called it rape and said he'd been violent with her before.

Those on campus who knew the couple say they were once intensely in love and talked of marriage. But according to a complaint filed with the US Department of Education's Office for Civil Rights (OCR), their nine-month affair had deteriorated and he had become abusive -- beating her and, on one occasion, even burning her. That night, the complaint says, he forced her to have sex.

The case was originally taken to the Brown University Disciplinary Council (UDC), a body set up by the school to uphold its "tenets of community behavior," which include sexual misconduct. When the UDC finds a "preponderance of evidence" that the tenets have been broken, it can impose penalties that range from probation to permanent expulsion. The UDC complaint was an obvious first step for the woman, and, in this case, it may have been her only option, because the alleged perpetrator is related to a foreign monarch and may have diplomatic immunity.

But the case took a strange turn. The UDC flatly refused to even hear the case. The move, say critics, was not motivated by precedent. The UDC has heard -- and rendered decisions -- on allegations of sexual misconduct in the past. And, clearly, a rape would constitute a violation of the tenets of "community behavior" which the body is charged with upholding.

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Bad chemistry: A former Brown professor is accused of assault

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Instead, according to a Phoenix investigation, it appears that the case may have been dismissed for political reasons. According to documents obtained under the Freedom of Information Act (FOIA), the alleged rapist told the woman that his father was a "generous contributor" to Brown. He was represented before the UDC by Martha Sharp Joukowsky, the wife of Artemis Joukowsky, a well-known and extremely influential fund-raiser -- and benefactor -- for Brown as well as the university's vice chancellor. And the alleged assailant was also well known to the administration as a relation of an influential, and extremely rich, foreign monarch.

Perhaps the most disturbing part of this story, though, is that no rules were broken in the UDC's decision not to hear the case. Despite their power -- to ruin a college career, or, alternatively, to let a criminal walk freely on campus -- judiciaries like Brown's are not legal entities and, for the most part, can do what they want. At Brown, the council can even refuse to hear a case -- and refuse to state a reason. And, say the UDC's many critics, Brown has a history of arbitrary decisions.

When students feel they've been treated unfairly, their only option is to appeal to the courts or, in cases of gender discrimination, to the OCR. But judges are reluctant to second-guess a university's decision, and the OCR rarely punishes these institutions by yanking their federal funding.

In this case, Brown has largely refused to comment. The Phoenix made repeated requests for interviews with Dean of Student Life Robin Rose and Provost James Pomerantz. The charged student and his lawyer did not return phone calls. Neither did Stephen Foley, chairman of the UDC.

Contacted at home, Martha Joukowsky's only comment was that it would've been "totally inappropriate" for the UDC to have heard the alleged sexual assault.

In the end, this silent treatment may hurt the university more than officials realize. Stunned by the UDC's decision, the alleged victim's parents filed a complaint a month later with OCR, whose investigation continues. The parents have also written to numerous campus officials, including departing president Vartan Gregorian, asking for an internal investigation into the UDC.

In a written complaint to the OCR, the parents of the alleged victim wondered whether the university could have been objective "in evaluating conflict of interest in this web of mutual interests."

Calling the UDC ruling "a grave, possibly sinister miscarriage of justice," one of the parents, in a letter to Gregorian, says the incident is "in danger of erupting beyond university bounds."

Prior to the 1960s, campus judiciaries did not even exist. Instead, deans of men and women acted in what is known in legal theory as locus parentus. As Chris Shea wrote in the February 9, 1994 issue of The Chronicle of Higher Education, "college officials didn't used to need a reason to expel someone any more than a parent had to hold a hearing before spanking a child."

But with the civil rights movement came what was supposed to have been a new era of student rights. In 1961 one court ruling in particular "opened up a huge body of law over the last 35 years," says Dennis Gregory, former president of the national Association of Student Judicial Affairs.

That year, six black students at the University of Alabama were suspended for organizing anti-segregation protests. In some cases, the students said, they hadn't even attended the demonstrations. In their lawsuit against the university, a judge ruled that the accused had had a right to defend themselves prior to their suspension.

Today, universities use a variety of systems to discipline their students. Some have an undergraduate "attorney general" who investigates complaints and student "defenders" who argue the case before a panel of "justices."

The majority of campus judiciaries don't find students "guilty," but "responsible" for violating the student code. Conclusions are reached not on the criminal-case standard of "beyond a reasonable doubt," but the civil-case standard of "a preponderance of evidence." This standard frees the judiciaries to hear cases that would never withstand the rigors of an actual trial.

On campuses across the nation, rulings on sexual violence between students have been particularly contentious. Some women say that they have been ignored, while Camille Paglia, Katie Roiphe, and other critics of the feminist movement maintain that the definition of rape has been stretched too far and that women, even drunk ones, must take responsibility for their actions.

"There is a gray area in which one person's rape may be another's bad night," Roiphe says in her book, The Morning After: Sex, Fear, and Feminism on Campus.

Fueled by such assertions, students accused of sexual assault are fighting the charges now and pointing out the flaws -- and biases -- of campus judiciaries in the process.

At Brown, for example, Adam Lack emerged as a martyr in the struggle against political correctness after he filed a suit against Brown University and the woman he allegedly assaulted in February. In it, he claims he was a victim of the school's liberal politics and a double standard for men and women.

The year before, the UDC had convicted the junior of sexual misconduct based on only one eyewitness's testimony -- Sara Klein, the alleged victim. The Brown Daily Herald then plastered his name and alleged crime on the front page of a special edition. Lack had slept with Klein, who claimed she'd been too drunk to consent. In her complaint, she accused Lack of essentially raping her. In his lawsuit, he accuses her of libel.

But campus judiciaries can just as easily turn against the complainant as they weigh that student's interests against the university's.

According to handwritten notes from OCR investigators reviewed by the Phoenix the alleged rape case at Brown in September was treated differently from the start.

In interviews with UDC members, OCR investigators have learned that at the beginning of the hearing, the chairman of the council, English professor Stephen Foley, made a point of saying this was a "special case" because Martha Joukowsky, the charged student's adviser, had asked the UDC to dismiss it.

The UDC had never considered such a request, but the case would break tradition in other ways as well.

That afternoon, on October 28, the council -- chaired by Foley and made up of three students selected by the Undergraduate Council of Students and three other faculty members and deans, all appointed by Gregorian -- went into executive session without hearing testimony from the alleged victim. This was unusual enough, but Foley made another ruling that others would later question -- he allowed Joukowsky to read aloud her request.

During the UDC's deliberations, employees from the Office of Student Life were not allowed to be present. One UDC member asked for more time to interview the complainant, but Foley said they had to make a decision that day, according to OCR interview notes.

When the UDC reconvened a few hours later, the council announced its decision. The vote had been 4-3, with Foley providing the tie-breaking vote. The alleged victim was told she was free to pursue her case in court. According to the OCR documents, the UDC hadn't considered the possibility of the charged student's having diplomatic immunity.

Asked why the UDC has the option to decline to hear complaints, Mark Nickel, director of the campus news bureau, says, "It's part of the code at Brown." When asked why the code is written that way, he pauses and then says, "I don't know why."

To be sure, the case was potentially complicated. Only the two of them were in the room that day in September, and he insisted the sex had been consensual and that they'd had sex on another occasion afterward.

The woman's credibility was also questioned after she told her alleged assailant she feared she was pregnant from the attack. Several people interviewed by the OCR said the woman had taken a morning-after pill at the university health center, where her pregnancy test later turned up negative. But the woman claims she performed a home pregnancy test that indicated otherwise.

In his interview with the OCR, Foley characterized the female student's allegations as a "highly charged, overwrought claim from a biased party." (He did not return phone calls from the Phoenix.) He accused the woman of trying to manipulate her ex-boyfriend into thinking she was pregnant and said he wasn't quite sure where the pair's relationship stood.

In a letter to Foley dated a few days prior to the UDC hearing and obtained by the Phoenix under the Freedom of Information Act, Joukowsky made similar accusations against the young woman. Saying the charges were "unsubstantiated, untrue and scandalous," Joukowsky said the UDC should dismiss the case. She also cited a provision in the student code that would allow the council to do so "in certain instances, such as capital offenses . . . rape . . . and other felonies."

Cases like these are certainly complicated -- and emotional. But there are explanations for the alleged victim's actions. Besides, critics say, the UDC's job is to sort through the conflicting testimony and evidence and to render a decision, as it has done so many times before. But in this alleged rape, UDC members didn't let the charged student go because of a lack of evidence. They didn't even bother to hear the case.

And there is no doubt that the alleged rapist had connections at Brown. In OCR interview notes, Joukowsky says she met his parents in 1993, when she began "southern temple excavations" in the kingdom of Jordan in the Middle East.

In promotional materials, Joukowsky is listed as the project's director "under the auspices of the Jordanian Department of Antiquities."

The Brown professor also told OCR investigators that in 1995, the charged student had been forced to take a leave of absence from Brown for "academic reasons." During that summer, he joined her excavation team of undergraduates in Jordan. When he returned to Brown in January 1996, OCR notes mention a "curious" donation from his father around that time.

In their complaint, the alleged victim's parents contend Joukowsky acted in conflict in representing the student since her husband, Artemis, is such an imposing figure on campus. "The faculty advisor selected by the charged student as his advocate was inappropriate," they contend. "Professor Joukowsky has vested and conflict of interest professionally and personally, on the one hand with the charged student's family, and, on the other, within Brown University Administration."

Brown officials refused to comment on Joukowsky's potential influence over the outcome of the case, but in other rulings, the UDC has in fact convicted students with as little evidence. Adam Lack was one of them, and this is why his case has become a kind of cause célèbre among conservatives. In his report for 20/20 on the incident, ABC news reporter John Stossel said Lack was a victim of Brown's rampant political correctness. Titled "When no means yes," Stossel's report aired March 27 and started out at what appears to be a party. Hands around beer cups and smooth young hips. Loud music. What if you get drunk and have sex with someone, Stossel asks. "There's a chance your partner will say it was rape."

In February 1996, Lack had walked into a friend's room to borrow a CD only to discover a drunk young stranger lying on a bed next to a puddle of vomit. Klein, then a freshman, followed Lack back to his room for a glass of water and eventually came on to him, he says.

According to Lack, Klein did not seem upset when she woke up the next morning in his bed. She even told him to call her. But a month later, she reported the encounter to university officials, and Lack was found responsible.

A native of rural Iowa, Lack was not a well-known student on the Brown campus. He wasn't a star athlete generating money for the university, and he wasn't related to anyone famous. Some wonder whether the outcome would've been different if he had been.

When it came to a pair of varsity football players two years ago, for instance, a UDC ruling had turned out much differently, despite an overwhelming amount of evidence and witnesses.

The two athletes had been accused in the beatings of a handful of students in a barroom brawl at Spat's, a former pub on Thayer Street. During the melée, a cheerleader's nose had been broken, and a graduate student had been mercilessly kicked in the head -- in front of dozens of other students.

But the UDC, in November 1995, said the case wasn't strong enough to render a guilty verdict. The two athletes, Joseph Karcutskie and Jon Bourbeau, apparently disagreed.

In February 1996, they pleaded no contest to the charges in Providence District Court. Not surprisingly, students were outraged, particularly since the football players had been allowed to play for Brown in a key game right after the incident.

All these cases put together have resulted in a campus inflamed in controversy on all sides. In some instances, the debate has turned personal and vicious as interested parties push their own agendas.

According to three sworn statements, one from a journalist and former French ambassador, a month after the UDC ruling, a Brown University music professor named David Josephson was overheard openly talking about September's alleged rape to a female companion at Al Forno restaurant in Providence.

The sworn statements say that Josephson, also Adam Lack's faculty advisor, disclosed privileged details about the alleged victim's health records, which included STD and pregnancy tests. He was overheard saying he'd been "able to prove that she was a liar" and that he'd "helped the charged student have the case dismissed."

Fed up with the way the Office of Student Life handled sexual assault cases, Josephson also lashed out at an associate dean there, Toby Simon. He called Simon a "feminazi," according to the sworn statements, and alleged she'd been fired from Brown over her involvement in the Lack case. (Simon refused to comment on Josephson, but admitted she is resigning from her job in May.)

In his interview with OCR, Josephson seemed to present himself as an important figure on campus. Because of his vocal support of Lack, he became a lightening rod for all the rumors in the sexual assault case his friend Martha Joukowsky was handling, he says. That's how he heard about the young woman's health records, not from Joukowsky herself.

"I was stalked on campus and on the streets," says Josephson. "I got e-mail and letters, anonymous and signed." One man asked him to form a men's defense group. To the OCR, Josephson actually referred to himself as a "leader of a counter revolution" at Brown.

On the night he went to Al Forno, Josephson says, he couldn't hold back any longer. The conversation was supposed to be about "scholarly" issues, but his dining companion "could tell my heart wasn't in it.

"I have a right and the freedom to say what I want to a dinner companion," says Josephson. "This was not speaking in public. My God, if the walls have ears, we're all in trouble."

Josephson regrets some of the comments he made, but he maintains that the OSL is supposed to support both parties in a UDC case. Instead, he says, deans like Simon act like a state prosecutor, presenting the alleged victim's case on behalf of the university.

"Adam Lack rightfully saw the Office of Student Life as the enemy," says Josephson. "Adam Lack has been made into a pariah." The music professor says that at Brown and other universities, "indoctrination has replaced education." What Josephson wants is "reasonable equity."

To achieve this, some critics say campus judiciary hearings must be opened to the public. For years student newspapers have been fighting for this very access, with the encouragement of advocacy groups like the Student Press Law Center and professional journalists. In some cases, the papers have won.

A few years ago, the Red and Black, a privately supported student newspaper in Georgia, sued the state university for access to records concerning allegations of hazing at fraternities. Citing state statutes governing open meetings and records, the Georgia Supreme Court ruled in the paper's favor.

But Dennis Gregory, now an assistant dean of student life at the University of Tennessee in Knoxville, says he believes opening up the process would be a mistake. "Students, particularly those involved in a date rape, would be reluctant to come forward then," he says. "The last thing they want is an O.J.-like scenario."

This goes for the witnesses as well. "They are not obligated to testify at campus judiciary hearings. We can't threaten to jail them or hold them in contempt," says Gregory. "We must entice them to become part of the process."

In the end, then, open records and hearings would make campuses "less safe because not many cases would be heard," he argues.

Instead, Gregory says campus judiciaries need to abide by certain standards, punishing students in similar ways for similar crimes. "I think presumptive penalties should be available to the community and that they should be commented on," he says.

But Russell Carey, an assistant dean of student life at Brown, disagrees. Because the UDC hears only one to five cases a year, it is impossible to establish any precedents. "You don't have a big enough body of cases," he says. Besides, a student's sentence is based on a number of factors -- "how contrite he or she is," says Carey, or "whether there were aggravating circumstances."

Gregory also maintains that if the university is going to take on the responsibility of trying these cases, it must try all of them. Those with escape hatches like Brown's "have usually adjudicated cases in the past, usually serious crimes like rape, and have gotten burned," he says. "So they say, `We're just going to leave 'em up to the courts.' "

To make sure students are treated fairly, Gregory recommends allowing attorneys to become part of the process. Officials at the University of Tennessee do, he says, and if students can't afford an attorney, the school employs law students to serve as their advocates.

As for Brown itself, senior Annabel Bower, a member of the campus Coalition Against Sexual Assault, says that its tenets of community behavior, particularly those pertaining to sexual assault, need to be clarified. Otherwise, cases like Adam Lack's will continue to tear the campus apart.

Most important, says Bower, university officials must figure out where people like Josephson get their information, and the leaks must be plugged.

To Brown officials' credit, they are attempting to address some of these concerns. Last semester, they formed an ad hoc committee on sexual misconduct, which held hearings on the UDC's policies in March.

This month, the ad hoc committee will submit its report to Pomerantz and Rose. After they've had a chance to read it, the pair will decide whether to release it to the public.

Meanwhile, the young woman who claims to have been raped in September and her parents wait and wonder. In letters to Gregorian and in their complaint with the OCR, the parents say their daughter's life has been all but ruined.

"The effects upon [the alleged victim] of the sexual offense were devastating. The additive effects of Brown's administration of this case have been crushing. She has been emotionally and scholastically shattered," say her parents, who apparently know Gregorian personally. "For the former, she goes to a therapist for the first time in her life. As for the latter, her senior year is . . . destroyed."

In response, Gregorian wrote a kind but technical letter that essentially reaffirmed the university line. "Although I know a great many students, I know [the alleged victim] better than most and consider myself a friend of hers as well as yours," he wrote.

But once again, the president cited the student code that allowed the UDC to decline to hear her case. "I know this is a difficult time for [the alleged victim] and your family," he says, "and regret that I cannot be of further assistance in this matter."

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Bad chemistry: A former Brown professor is accused of assault

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Jody Ericson can be reached at jericson[a]phx.com.