Much ink has been rightly spilled in recent days over Duke University’s new sexual misconduct policy. Indeed, as FIRE and others have documented, the policy blurs the idea of consent in any sexual encounter, deprives students accused of sexual misconduct of basic due process, and threatens to turn many students on Duke’s campus into unknowing rapists. In other words, the policy would be laughably absurd in its affront to common sense, if not for the fact that it is so dangerous and the possible consequences so dire.
Adding to the calls for Duke to dismantle its ill-advised policy is FIRE Vice President Robert Shibley’s editorial in The Washington Times today. In the editorial, Robert rightfully takes Duke to task for implementing what he calls an "Orwellian nightmare":
At Duke, you can be a rapist without even knowing it. A new sexual-misconduct policy, enacted in the fall, takes as one of its fundamental tenets that "real or perceived power differentials between individuals may create an unintentional atmosphere of coercion." That’s right: To be guilty of date rape at Duke, you don’t have to force someone to have sex or even have actual power over that person – you only have to be "perceived" as more powerful by a Duke tribunal.
Not concerned yet? How about this: If either party, male or female, is to any degree intoxicated during sexual activity, he or she can’t consent to sex. If you are a student and your partner (or even your spouse) is tipsy, Duke says you have committed sexual misconduct.
After outlining these and other problems with the policy, Robert adds:
If not for the court of public opinion, the Duke men’s lacrosse players who were falsely accused of rape might be in jail today. Now, for those accused by Duke, even that option is unavailable because any information shared during a hearing can never be revealed. Were you cleared? Were you falsely accused? Don’t tell anyone, or Duke will punish you for violating confidentiality.
FIRE gave Duke more than a month to respond to our letter and defend or rescind these rules. Duke has done neither. We got only a one-page response saying that Duke would think about clearing up some additional ambiguities FIRE pointed out and that Duke would consider our concerns. In the meantime, how many Duke students have been falsely convicted of date rape? We hope the answer is zero, but there’s no way to know – Duke has made sure of that.
Unfortunately, Robert is as right about that last point as about the others. Finally, Robert notes that the problems manifested in Duke’s policy, even worse, can be generalized to America’s colleges and universities:
Duke suffered the most public lesson in recent memory of what can happen when rape allegations are not investigated carefully and fairly. One would think this would serve as a lesson not only for Duke, but for all colleges. Yet colleges continue to sacrifice the needs of justice to meet the demands of those for whom college is a chance not to educate but to indoctrinate students. A huge administrative class, desperate to justify its size by regulating every corner of students’ lives, has reached into the most intimate of relations to change the very nature of how students perceive dating, sex and relationships.
That’s chilling indeed.
Our thanks to The Washington Times for giving this matter the space it deserves. Robert’s editorial will hopefully bring further scrutiny upon Duke’s missteps, adding to a litany of voices that includes Wendy Kaminer in The Atlantic and Cathy Young in The Boston Globe. Hopefully, Duke will realize sooner rather than later that it does no good to fight against basic legal principles, common sense, and fundamental fairness, and that it needs to scrap its poorly written policy.