The Brown Case: Does It Still Look Like Rape?

In late April, the media were abuzz with the tale of yet another horrific injustice inflicted by a university on a female student who had been a victim of sexual assault on campus. “Brown University lets rapist who choked his victim reenroll after a semester-long suspension,” thunderedthe headline on Salon.com. The reports were based on the account of Brown student Lena Sclove, who had addressed a campus rally of about 50 people on April 22 to denounce the university’s decision to let her alleged attacker, Daniel Kopin, return to campus. (Kopin was “outed” by the campus newspaper, the Brown Daily Herald, in its April 23 news story on Sclove’s claims; while some articles left out his name, others, including Slate and Salon, did not.)

Sclove’s story was that on August 2, 2013, she was choked and sexually assaulted by Kopin–a fellow student whom she had considered a friend, and with whom she had “hooked up” in the past–after a party; she reported the assault to the university within two weeks (and, later, to the police), and after a hearing in October Kopin was found “responsible” on four counts of misconduct. While the university conduct board recommended a two-year suspension, which would have allowed Sclove to finish her studies before Kopin returned to campus, the senior associate dean of campus life reduced the suspension to one year and the vice president for campus life upheld the lesser penalty.  Now, Kopin was set to return next September and Sclove was “just so angry,” she told The Huffington Post. “I did not do anything wrong, and yet I’m the one who’s going to take time off or transfer.”

None of the media accounts gave any details of Sclove’s alleged assault. Both the Huffington Post and Salon claimed that the charges on which Kopin was found responsible included “sexual violence involving physical force and injury.” In fact, the conduct board made no such finding; the official document a scan of which was featured in the Huffington Post article showed that the offense was described as “sexual misconduct that includes one or more of the following: penetration, violent physical force, or injury” (emphasis added). Kopin was also found responsible for “actions that can result in or can be reasonably expected to result in physical harm” and “non-consensual physical contact of a sexual nature.”

Related: He Said, She Said–This Time Professor and Student

In late May, I got a chance to not only speak to Daniel Kopin and his parents but to see a complete file of the evidence submitted to the conduct board (mainly statements from Sclove, Kopin, and witnesses on both sides) for an article for The Daily Beast.  And now, Kopin’s attorneys have released a detailed rebuttal to Sclove’s complaint with the Department of Education Office of Civil rights. It turns out that the facts are, to say the least, considerably more complicated than the initial media accounts would suggest.

For instance:

* Sclove admitted that she left the party with Kopin, after some mutual flirting, to go back to his place with the intent of having sex.

* The “choking” allegedly took place in the street while Kopin and Sclove were walking to his place, periodically stopping to “make out.” Sclove claimed that, all of a sudden, Kopin violently grabbed her neck and pushed her against a telephone pole, which left her shaken and terrified (but did not stop her from going to Kopin’s place instead of returning to her own apartment nearby). Kopin said that the touch was an ordinary caress to which Sclove had an unexpectedly negative reaction, supposedly because it “triggered” her memory of recent sexual harassment by another man with whom she had gone out on a date, an adult student in an “English as a second language” class she was teaching.

Kopin’s version is at least partly confirmed by Sclove’s own email to him on August 8, in which she accused him of raping her but referred to the neck-touching incident only as “you crossed a boundary” and mentioned the “triggering.” A friend in whom Sclove confided about the incident the next day, and who submitted a witness statement, recalled Sclove telling her that Kopin “put his hand on her upper chest/neck; however Lena felt like she was being strangled and got very freaked out.”

* Sclove never alleged that there was physically forced sex; rather, the finding of non-consensual sex was based on the fact that, as she testified and Kopin confirmed, when they got to his place she told him she did not want to have sex with him. She claimed that Kopin continued to make physical advances which she did not resist because she was “in a fuzzy state” from drinking at the party and because she felt he was not giving her the option to refuse.

* According to Kopin, he told Sclove he was fine with her decision and even offered to walk her home if she wanted to go–but she refused. Sclove conceded that he made such an offer; she said she didn’t leave because she felt unsafe either walking by herself or walking with Kopin, after the earlier choking incident (yet was willing to stay alone with him in his apartment).

* Kopin claimed, shortly after telling him she didn’t want to have sex, Sclove was the one who made sexual advances. (He also testified, with some corroboration, that she had a history of sending such mixed signals.) While Sclove denied this, she admitted that she asked Kopin to get a condom and agreed to give him oral sex–though, according to her, she did so only because it was the least “horrible” of her options.

* Kopin’s three housemates, who came home during the alleged assault and saw Sclove moments later, testified in support of Kopin. The three, two men and one woman, heard the sounds of a sexual encounter from outside and knocked loudly to alert the pair; Kopin and Sclove collected their clothes and ran upstairs to his bedroom, from which Sclove shortly came down. According to the housemates’ testimony, she seemed embarrassed but not frightened, traumatized or disoriented.

The record also refutes a dramatic claim which Sclove made at the April rally (and which some media accounts repeated): that university administrators had on file a statement from another female student who said Kopin had sexually assaulted her.  There is, in fact a statement from a second woman; it was submitted ostensibly in support of Sclove’s complaint (though ultimately not admitted into evidence). But what it describes is a bad sexual experience–one that the woman herself stresses was a consensual hook-up. The gist of her complaint was, essentially, that Kopin was self-centered and boorish.

There’s much more (read the full article).

Some of the evidence is more favorable to Sclove’s account: for instance, Kopin admits that at one point during sex, Sclove began to cry (though he says that he asked her if she wanted to stop and she clearly conveyed that she wanted to continue). Two of Sclove’s friends also confirm that she was distraught the day after. Still, given all the facts, one could reasonably argue that even a “preponderance of the evidence” standard–which requires slightly more than a 50/50 probability that the offense occurred–should have resulted in a finding in Kopin’s favor. Harvey Silverglate, the noted civil rights attorney whom I interviewed for the Daily Beast article–he was retained by the Kopin family but was barred, under Brown’s rules, from any role in the campus disciplinary process–believes Kopin’s light punishment was, in effect, “the penalty for the innocent” in a campus sexual assault case. Even by his own account, Kopin showed some bad judgment in the encounter with Sclove; but if he is in fact innocent of sexual assault, he certainly got a raw deal–particularly since the backlash following Sclove’s public statements caused him to drop out of Brown.

Aside from Brown’s handling of the case, the most striking aspect of this story is the utterly pathetic performance of the media. No attempt was made to independently verify any of Sclove’s claims. Most publications made no attempt to get Kopin’s side of the story. No one thought to ask such basic questions as: If Sclove was indeed violently raped and strangled, why didn’t she go to the police? Would Brown officials really readmit a known violent rapist after a brief suspension and run the risk of him reoffending?

Related: The Times and Sexual Assault at Florida State

Of course, this lack of critical scrutiny is entirely typical of the media coverage of campus rape controversies. One can only wonder how many stories of universities letting rapists off the hook and re-victimizing women who have been sexually assaulted would hold up on impartial examination.  With more and more commentators questioning the “rape culture” moral panic and the “justice” of campus kangaroo courts, perhaps the media will finally start doing their job.