NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
Duke University’s new sexual misconduct policy can render a student guilty of non-consensual sex simply because he or she is considered “powerful” on campus, according to the non-profit Foundation for Individual Rights in Education (FIRE). The policy cites “perceived power differentials” which “may create an unintentional atmosphere in coercion.”
The bottom line? You’ve committed “sexual misconduct” if you’re considered “powerful”—i.e. a lacrosse team player—and you have engaged in something that falls into what the university broadly defines as “acts of a sexual nature.” This definition includes, “but are not limited to:”
Touching or attempted touching of an unwilling person’s breasts, buttocks, inner thighs, groin, or genitalia, either directly or indirectly; and/or rape, forcible sodomy, or sexual penetration (however slight) of another person’s oral, anal or genital opening with any object. Sexual misconduct also includes sexual exploitation, defined as taking nonconsensual, unjust sexual advantage of another for one’s benefit or the benefit of another party. These acts may or may not be accompanied by the use of coercion, intimidation, orthrough advantage gained by the use of alcohol or other drugs. [emphasis mine]
Nonconsensual sexual exploitation could possibly be taking photos of a stripper.
Why does this matter? Well, in March 2006, three Duke lacrosse players were accused of raping a stripper who had been hired to entertain an off-campus party, and, without evidence, condemned by Duke faculty and administrators. They were eventually exonerated, but not before race-bating activists and an overzealous prosecutor ruined their reputation.
I asked FIRE’s Robert Shibley, also a Duke alum, whether the lacrosse players would have been found in violation of this policy if it had been in place at the time. “Probably, especially since they had taken photos of the stripper.”
Most disturbing is that this policy so broadly defines “sexual misconduct” that it makes no clear distinction between genuinely horrifying behavior and non-offenses.
Neither Duke’s president nor the public affairs officer have returned calls for comment.