Opening New Front in Campus-Rape Debate, Brown Student Tells Education Dept. His Side

June 12, 2014

A rising number of college men accused of rape are fighting back. This week a former Brown University student took the unusual step of sending a letter to the U.S. Education Department’s Office for Civil Rights, telling his side of the story in a sexual encounter that not only got him suspended from Brown this past academic year but also tarnished his reputation, his lawyers say. What the letter makes clear is that young men frequently are as unhappy with the outcome of college investigations of alleged sexual assaults as are their accusers, and that both sides frequently believe the process was unfair.

Lawyers for Daniel Kopin wrote in a letter on Wednesday that their client wanted the federal agency to have a full account of the situation when it considered a complaint his accuser, Lena Sclove, filed with the OCR in May. In that complaint, Ms. Sclove—a junior at Brown—contends the university violated the gender-equity law known as Title IX by mismanaging her accusations of rape and by suspending Mr. Kopin for a year instead of two, which would have allowed her to finish her degree at Brown without running into Mr. Kopin on the campus.

The case got national media attention this spring, when Ms. Sclove staged a rally at Brown, saying Mr. Kopin had strangled her during their sexual encounter, in August 2013.

Brown declined to comment on Mr. Kopin’s letter, but it has said it "takes issues of sexual assault and sexual misconduct with the utmost seriousness."

Mr. Kopin’s letter to the OCR represents a new step by accused men to defend themselves, say their lawyers. Some men are suing the colleges that have punished them for sexual misconduct, while others are filing their own Title IX complaints, contending they were victims of gender discrimination in campus proceedings that found them responsible for rape. But rarely, say observers, have male students written directly to the OCR to give it information about federal complaints by their accusers. Legally, the complaint is a matter between the federal government and a college or university, not either of the students.

The Education Department did not respond to requests for comment on Mr. Kopin’s letter, and Ms. Sclove’s lawyer said she would not comment.

An ‘Overcorrection’?

Title IX requires campus officials to investigate and resolve reports of sexual harassment and assault whether or not the police are involved. If colleges don’t deal with such reports promptly and fairly, they may be blamed for violating the rights of alleged victims and creating a hostile environment for learning. Campuses have come under pressure from activists as well as the White House to be more responsive to students’ complaints. The OCR is responsible for investigating when students complain that colleges have mishandled their allegations of sexual abuse.

Brett Sokolow, president of the National Center for Higher Education Risk Management—a consulting and law firm that advises colleges—says Mr. Kopin’s letter is a natural progression in the battle college men are waging against mounting accusations of sexual misconduct. "As victims are increasing the tools in their toolbox, and giving public statements on the street corner," he says, "the defense has to get more sophisticated as well."

This spring, says Mr. Sokolow, he has noticed a significant uptick in the number of men complaining that colleges have mishandled allegations of sexual misconduct against them. Since April, he says, at least 55 young men have asked him to represent them in disputes with their colleges or universities. So far, Mr. Sokolow has taken on 11 of those cases.

He believes that the rising number of complaints from men stems in part from increasing pressure on colleges to hold students responsible for sexual misconduct, and the mistaken belief among administrators that this means they should find more young men responsible. "All of this pressure from the White House and OCR has been communicated, and these university panels believe they are supposed to vote a certain way now," says Mr. Sokolow. "Campuses are saying, We have to comply with Title IX, so we have to side with the victim."

Andrew T. Miltenberg, a New York lawyer who also represents young men accused of sexual misconduct, says that whereas it used to be young women who complained colleges didn’t take their accusations seriously enough, now young men are feeling unfairly tarnished by campus disciplinary procedures.

"There has been an overcorrection in the disciplinary process that has caused young men to complain," he says. "The alleged victim is now getting guidance and help, as well they should. But there is a startling and disturbing lack of due process and guidance as to what alleged perpetrators should be doing during this process."

Competing Claims

Mr. Kopin was to return to Brown this coming fall as a junior, after the year’s suspension. But he decided not to after Ms. Sclove appeared at the April rally, accusing Mr. Kopin not only of sexually assaulting her but also of strangling her and leaving her with spinal-cord damage. In spite of the violent assault, she said, Mr. Kopin would be allowed to return to the campus this fall, while she was still a student there.

Several news outlets reported Ms. Sclove’s remarks, and, on a nationally televised news show, a U.S. senator cited the case at Brown, saying Ms. Sclove had been "brutally raped" and nearly strangled to death.

But Mr. Kopin’s letter says that Ms. Sclove’s claims about the alleged violence in their encounter changed drastically over time, from allegations that he had simply squeezed her neck to contentions that he had choked her, then strangled her, and finally left her with spinal injuries that for a while made it difficult for her to walk. The OCR, says Mr. Kopin’s letter, should regard Ms. Sclove’s "outrageous and shifting allegations" as "highly suspect."

In addition, contrary to Ms. Sclove’s accusations that she repeatedly said she didn’t want to have sex with Mr. Kopin and that she was under the influence of alcohol that night, the letter says, Mr. Kopin has consistently maintained that their sexual interactions were consensual and that Ms. Sclove did not appear drunk or high. In an interview Mr. Kopin gave to The Daily Beast this month, he said he lightly put his hands on Ms. Sclove’s neck a couple of times during the evening, but never strangled her.

Mr. Kopin’s lawyers say they wrote the letter to the OCR because their client wanted to make sure his reputation wasn’t further damaged in any action the OCR might take because of Ms. Sclove’s complaint. "The only way he can get his reputation back is to say, This is the right story, not that," says David Duncan, one of the lawyers. "He has been pummeled in public, and he doesn’t want to be the exemplar of someone who got away with something because Brown made errors or was insensitive to victims."

Mr. Duncan says Mr. Kopin also believes he has been the victim of an unjust university process that found him responsible for offenses he didn’t commit. The letter in part blames the OCR for creating what Mr. Kopin’s lawyers say is a climate in which colleges and universities feel they must punish students who are accused of assault.

"If one thing should be clear to your office," says the letter, "it is that you should be looking carefully at your own impact on disciplinary proceedings, and considering what steps you could take to ensure that such proceedings are thorough, fair, and impartial."

In adjudicating Ms. Sclove’s complaint, Brown found Mr. Kopin was responsible for sexual misconduct by violating four items of its Student Conduct Code, including nonconsensual sexual contact and actions that resulted in or could be reasonably expected to result in physical harm to another person. While he decided not to fight the one-year suspension, says Mr. Duncan, that doesn’t mean Mr. Kopin acknowledges he violated the code. "Now," says Mr. Duncan, "he doesn’t want to see injustice perpetrated on others."