Is Sex Assault a Crime on Campus?

Olivia Nuzzi

May 9, 2014 at 10:04 PM

On the cloudy night of Friday, August 2, Lena Sclove arrived at a party at the apartment Daniel Kopin shared with his friends. Sclove and Kopin, both students at Brown University, had been previously engaged in a casual, consensual sexual relationship that was in its informality not at all atypical for two college students. Amicably, they decided to end it.

But on this particular summer evening, it looked like Sclove and Kopin would rekindle the relationship—if only just for the night. Drinking, “he became very flirty and touchy,” Sclove said.

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In 1927, the FBI defined rape as “the carnal knowledge of a female forcibly and against her will.” In 2012, it changed the definition to “the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

The federal government and states like New Jersey, Michigan, Minnesota and the District of Columbia, to name a few, refer in their legal codes to degrees of sexual misconduct or abuse instead of “rape.”

“Nonconsensual sex” is a much more palatable and less loaded term, and it has been adopted by many universities.

In some jurisdictions, rape must involve physical force—while in others, being under the influence of drugs or alcohol is considered being unable to consent. Vice President Biden’s statement indicates a shift towards sex with an incapacitated individual as being widely considered a form of criminal sexual violence.

President Obama gave Biden and his Task Force 90 days to offer best practices for prevention and response to campus sexual assault, and to review whether or not universities were complying with their existing legal obligations.

As the White House formed its Task Force, United States Senators Claire McCaskill (D-MO) and Kirsten Gillibrand (D-NY) were starting to gravitate towards the matter, as well. Both had been active—in some ways, on opposing sides—on the issue of military sexual assault. Campus sexual violence was the obvious successor.

Students themselves contacted Gillibrand to tell her, “'we appreciate what you’re doing in the military, but you may not know the same thing is happening to us on college campuses.’”

McCaskill explained she “kept being reminded, when I was working on all of these reforms in the military, how many similarities there are between the military bases and college campuses.” In both environments, she said, “You feel like you’re under more of a microscope, because you know you will get more attention from your peers and from your acquaintances.”

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McCaskill, while an undergrad at the University of Missouri, had a friend who was assaulted while on a date. “I remember feeling very helpless because she swore me to secrecy and would never tell anyone,” she said.

Today, McCaskill is aware that survivors, “immediately begin questioning their own judgement [after an attack]. ‘Was I drinking too much?’ ‘Should I have gone to that party?’ ‘I never should have gone to his room.’ [Survivors begin] second guessing themselves, and losing sight of the fact that they have been the victim of a felony. You can be a victim of a crime and still have bad judgement.”

***

Sclove, petite with a dark brown pixie cut, arrived at Brown in January 2013, following a semester spent studying in Spain and one and a half years at Tufts. An ethnic studies major, Sclove was raised by activist parents in Massachusetts. At age 14, she self-published a nonfiction book, “The Year of a Thousand Colors,” which documented her time spent living in India. At Amherst Regional High School, Sclove was active in the women’s rights club, and volunteered at a domestic violence shelter, where she taught creative writing workshops.

Sometime during that first semester, Sclove met Daniel Kopin, another mid-year transfer. Kopin had come from NYU, and is the son of a Brown alumnus, Alan S. Kopin, a professor of medicine and the director of the Molecular Pharmacology Research Center at Tufts.

“He was a nice guy, it seemed,” Sclove said. “Kind of short and not intimidating.”

Kopin, a “nerdy intellectual,” as Slove put it, majored in urban studies and wrote for the Brown Political Review, where he questioned whether or not unpaid internships are legal and declared Rhode Island state Senate president Paiva Weed “an American hero” for not standing in the way of marriage equality despite opposing it. Like Sclove, Kopin was “interested in issues of justice.”

The students who remained in Providence over the summer for classes or internships tended to stick together, sharing apartments or just partying with one another on the weekends. Sclove and Kopin “shared a friend group” and the two began to see each other. “It was totally casual and neither of us was interested in dating one another,” Sclove said. “We had agreed we wouldn’t hook up the next time we saw each other—that we were done, and both of us were fine with that.”

Then, she says, came the came the choke, and the slam against the telephone pole and the events inside Kopin’s apartment.

The morning after, “the first person I called was a very dear friend,” Sclove said.

The friend, a mentor about ten years her senior “somehow didn’t understand” the severity of what Sclove told her had occurred just a few hours before. “She told me to do some light yoga and just take it easy for the rest of the day, and that she would be holding me in her heart.”

Feeling invalidated by someone she trusted, Sclove didn’t go to the police, and when her best friend came over later in the day and saw the bruises around her neck and demanded she go to the emergency room, Sclove refused.

It was five days later that Sclove called Brown’s rape crisis line. She was brought to Brown’s health service center where she was given contraceptive and tested for STDs. They didn’t follow any of the standard forensic techniques that a police department might have, according to Sclove. “They did not do a rape kit… Basically, they were like, it’s five days later, the evidence is gone.”

Brown connected Sclove with a sexual assault advocate who referred her to a domestic violence attorney for a consultation. But given the circumstances of Sclove’s assault and its aftermath, it seemed unlikely to Sclove that a police investigation would end in a guilty verdict.

“He didn’t have a gun, he didn’t have a knife, I didn’t get a rape kit, I didn’t go to the police the next day, he doesn’t have a criminal record. There’s just really no way that I would get any justice out of [going to the local authorities],” and if she did go to the authorities and the case were brought to trial, “I would have to testify five times with him present,” Sclove said. “I would be cross-examined and called a liar, a drunk, a slut.”

Coordinating with Brown officials, Sclove made the decision to email Kopin on August 8. The email read, in part, “Dan, you raped me…Don’t you EVER do this to anyone else.”

***

Brown policy "prohibits sexual misconduct, defined as nonconsensual physical contact of a sexual nature,” which the institution sees as encompassing “a broad range of behaviors, including acts using force, threat, intimidation, or advantage gained by the offended student’s mental or physical incapacity or impairment of which the offending student was aware or should have been aware.” Sclove decided to seek justice through the university disciplinary process.

In general, that process consists of a hearing in front of a panel, made up of a dean, a professor, a faculty member and a student. The panel then makes a decision about whether or not the accused violated the code of conduct. If they find him guilty, they make a recommendation for sanctions, which could range from merely being reprimanded to being expelled. It’s left up to a dean to ultimately decide on the sanction.

As she waited for her hearing, Sclove saw her attacker around campus, in the library and in the dining hall. In the October 11 hearing itself, “they wanted us to be in the same room. I had to request [separate rooms] because I said I didn’t feel safe being in the same room [as him],” she said. (Kopin’s attorney said reports that Sclove “had to attend class with him…are false.” Sclove says she has never said she had to attend class with him.)

Both Kopin and Brown had attorneys present and Sclove did not. “But that was my choice,” she said. In a statement, Kopin’s attorney said that in the hearing process, “there is a lesser standard of fact-finding, lesser evidentiary standards, a significantly lesser standard of proof, and an accused student’s attorney is not allowed to participate with the proceedings.”

During the hearing, Kopin maintained the encounter had been consensual. “His language in the hearing” to describe the choking “was that it was a ‘gentle caress,’” Sclove remembered.

Sclove later told the Brown Daily Herald that while some of her mutual friends with Kopin testified against her allegations, another student at Brown provided a statement alleging that she, too, had been assaulted by Kopin.

(Kopin’s attorney said there was never “any allegation of sexual assault or non-consensual sex made by any other student against Daniel.”)

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Klawunn amended the decision by instituting a probationary status, and noted that should Sclove and Kopin find themselves simultaneously enrolled in Brown, a “No Contact Order” (issued after Sclove reported the incident) would remain in place.

“I immediately started crying, and she said, ‘I know this is really disappointing. This isn’t what you were hoping for,’ and I said to her, ‘this isn’t disappointing. This is really scary. I don’t feel safe with this,’ and she had no response.

She left the meeting, and that was the end of their process.”

Brown did not notify Sclove of when specifically Kopin would be leaving campus. He finally left, she said, around Thanksgiving. “It turned out he had been gone for a week when I found out he was gone,” Sclove said. “That was another week I was living in fear for my life.” (Kopin, through his attorney, denied that he remained on campus that long.)

***

55 colleges and universities are currently the subject of federal complaints that they have not adequately responded to sexual violence. The Education Department revealed that, days after the White House released an April 28 report with recommendations for how colleges can combat and respond to sexual assault.

The list was dominated by prestigious institutions—Harvard and Harvard Law, Dartmouth, Princeton, Sarah Lawrence, Vanderbilt, the University of California-Berkeley, Amherst, Swarthmore, Emory—as well as big state schools—Ohio, Michigan, Arizona, Florida, Pennsylvania.

And the complaints were made under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in any education program or activity receiving federal funding. Sexual violence has been interpreted as an extreme form of sex discrimination. (The Clery Act and aspects of VAWA that relate to universities could be described as reinforcements of Title IX. Clery requires schools publish annual crime statistics and notify students when crimes occur that threaten their safety; the 2013 reauthorization of VAWA requires colleges provide annual training on issues relating to sexual assault.)

Because it is so easy for a school to find themselves the subject of a complaint that they have violated Title IX (anyone can file a complaint) the names of schools had previously been kept close-hold. Being under review does not, after all, mean the schools are in violation of the law, and so the Department of Education’s decision to name the schools seemed a political one, designed to reinforce the administration’s vow of increased transparency.

Under Title IX, schools are required to respond to reports of sexual violence fairly and promptly and to eliminate the event, prevent its recurrence and address any effects. From the moment of a report, schools must balance the wishes of survivors with its responsibility to provide a safe and nondiscriminatory environment for all community members.

Still, there is no requirement under Title IX for schools to go to law enforcement with an allegation of sexual violence unless it is required by state law (in Ohio, for instance, any person aware of a felony is legally obligated to report it to the police), although survivors must be informed of their options to report or decline to report to the authorities. And while, unlike with police, universities are required to investigate all reports of rape, complications almost always arise.

Under Title IX, “the university is called on to be all things to all people,” a former sex crimes prosecutor told me. “It must ensure a fair and impartial process for both the survivor and the respondent, it must provide resources and accommodations, it must investigate, it must adjudicate, it must decide appeal, and it must oversee the parties until they graduate. Given all of those roles, the perception of conflict is baked into the process.”

A university would never address a murder in the way they do sexual violence—not alerting the police; maybe collecting evidence, maybe not; having a med student perform an autopsy; treating the crime itself as a violation of no more than the student code of conduct; laying down the law with a suspension or an expulsion.

The New York Times reported that after being forced to describe, in detail, the logistics of a "painful sex act” to a Columbia University panel, Emma Sulkowicz had her accusation dismissed. Her alleged attacker had been accused of sexual violence by two other students that year, according to The Times[?].

When a student accused prized Florida State University football player Jameis Winston of rape in 2012, there was “virtually no investigation,” according to a New York Times report/inviestigation—either by police or the university (the latter, the Times said, would be a direct violation of the law). Winston would later be suspended from FSU’s baseball team for shoplifting. He received no such punishment for alleged rape.

Gillibrand explained that lack of coordination between universities and law enforcement is one of the biggest problems with the current system. “We need Memorandums of Understanding on every campus with local law enforcement, so there’s a protocol of what to do when a violence crime takes place. We’re going to work to make sure MOU’s are in place, and do a better job of informing victims what their rights are in the criminal justice system.”

Allowing schools to prosecute [adjudicate?] felonies, Gillibrand says, takes away from the fact that “these are serious crimes.” And too often, she charged, rapes are “treated as pranks.”

“If they were investigated and prosecuted by the criminal justice system, perpetrators [would] get many years in jail. To have someone who perpetrates that crime and who’s been shown within the school system to be responsible—to have them have a suspension or a slap on the wrist is unacceptable. The punishments that we have seen in many instances do not fit the crime.” Light punishments for serious crimes, Gillibrand said, have “a deterring effect, because survivors don’t feel like they’re getting justice, and if perpetrators are returning to campus while they’re still on it, they’re going to feel unsafe. And the trauma they’re re-exposed to is very unhealthy for them.”

Even Kopin agrees that the way colleges currently address these cases is deeply flawed.

“The two conflicting versions of the events of August 2 will never be reconciled,” he said in a statement released by his attorney, Naomi Shatz.”This case is proof of only one thing: The system used by colleges and universities for handling complaints of sexual assault is badly broken. The current process serves neither the students nor the schools.”

***

Out of options, Sclove conceded that she would enjoy one semester without Kopin on campus, and figure out how to handle his return when the time came.

Then Sclove had that semester of freedom taken away from her.

One morning in late December, Sclove told me she awoke to discover a lump on her lower spine. In the aftermath of the August 2 incident, Sclove said she had suffered loss of appetite and symptoms of Post Traumatic Stress Disorder (of which she would later be formally diagnosed). In December, she’d begun to experience migraines. The lump, it turned out, was the result of a dislocated vertebrae.

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While being choked during her attack, Sclove explained, her cervical spine sustained injury, which took several weeks to develop.

Sclove said she lost the ability to walk or climb stairs without help. “I could not bend over to tie my shoes,” she recalled.

She was forced to take medical leave for the following semester, meaning the next time Sclove would be on Brown’s campus would be in the fall of 2014, when Kopin was scheduled to return.

According to Sclove, the school administration appeared at times to be under the impression that being accused was as traumatic as being the survivor/victim. “You don’t know the number of times that a Dean said [to me] ‘you know, this is very serious for him, too. This will go on his transcript.”

Other Deans, she said, seemed to think it would be cruel to put the accused’s education on hold so the survivor could finish school in safety. “[A Dean] said, ‘well, what if it’s a freshman? Then they have to wait three years to come back if they’re waiting until a student graduates.’ Yes, and?…It was incomprehensible to her. It’s like, you’re still protecting the rapist—still! Even in an abstract conversation about policy, you are protecting them.” Reached for comment about the case, a spokeswoman for Brown, Marisa Quinn, told me “Federal privacy law prevents the university from commenting on individual disciplinary matters.” Quinn has not yet responded directly to a request for comment about claims officials protect the accused.

“It became clear I couldn’t really return to my education—which is completely in violation of Title IX—as a result of Brown’s handling [of my case].” That’s when Sclove hired an attorney and began to consider going public.

In front of Brown’s Van Wickle Gates on April 23—accompanied by her parents, Marci and Richard, and Robert M. Hoatson, Ph.D., the President of Road to Recovery, Inc.—Sclove addressed a group of over 85 Brown students, providence residents, friends and supporters.

“We all know this is not just an issue for me.” Sclove told the crowd. “This is also not just an issue for Brown. We all have seen the news—people are coming out and it’s a moment for universities to decide which side they’re on.”

Sclove gestured to the gates in front of her, “This is where you enter when you matriculate at Brown, and where you exit when you graduate. This is a question about who gets to stay. Why does he get to stay?”

“I didn’t do anything wrong. I didn’t do anything wrong. And for other survivors out there, they did not do anything wrong. And yet I’m being punished.”

To Kopin, the event—and its aftermath—were travesties. “In the days after a rally outside Brown University’s gates held by Lena Sclove and her supporters, Daniel was the target of a number of false allegations, repeated without question in online stories that also mischaracterized significant aspects of this matter,” reads the statement released by Kopin’s attorney.

Sclove did not publicly name Kopin. It was the Brown Daily Herald who did so in their coverage of Sclove’s press conference. The publication declined to comment about their decision to name Kopin.

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Is Sex Assault a Crime on Campus?

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