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Duke and the Art of Not Answering Questions
Lawyers often specialize in the art of answering questions without actually answering questions.
Here's a great example: the letter we received today from Duke University lawyer Kate Hendricks. Hendricks was personally very pleasant to me when I had a non-substantive conversation with her on March 25, as I mentioned in my previous blog entry and to which she refers in her letter. But Hendricks' letter employs a common tactic: it addresses the least important concern we raised in our letter while conveniently ignoring everything else.
Here's the sole concern Duke addresses: FIRE pointed out in our letter that the sexual misconduct policy says that students in sexual misconduct hearings have all the same rights that they would in all other hearings, but then when it lists those rights, it leaves some of them out. FIRE wrote, "It is unclear whether this ambiguity is an oversight or if Duke intends to give students accused of sexual misconduct fewer rights than they have in other types of cases." FIRE then goes on to list the rights that seem to differ and concludes the section by asking, "Do these rights exist in sexual misconduct hearings or not? If they do exist in sexual misconduct hearings, why is that not made clear?"
In response to this, Hendricks writes, "While your letter is the first indication we have received that this point is ambiguous, we can certainly review to determine whether clarification is in order." OK, great. But how long does that take? Like Hendricks, I'm an attorney, too, and it was ambiguous to me—why wouldn't undergrads be similarly confused? Why can't Duke just say "whoops, we'll fix that"? It would require the titanic effort of copying and pasting from one webpage to another. That's it.
Anyway, as I said, that was the least important of our concerns.
By way of contrast, here is a short list of some of the far greater problems Duke ignored, presented in plain English:
1. If two students are merely "perceived" as differently "powerful," this policy says that the more "powerful" student may have unintentionally coerced the other into sex and therefore committed sexual misconduct.
2. If two students are drunk and have sex, according to this policy they both committed sexual misconduct against each other.
3. What does "psychological pressure" to have sex mean, and on a student-to-student level, how does Duke distinguish this from peer pressure or even simple persuasion?
4. Since the victim and the accuser do not have to be the same person, and the accuser can be an anonymous third party, the accused cannot be guaranteed the right to face his or her accuser.
5. The accused has no right to representation by an attorney under the policy, so Duke can force him or her to incriminate himself or herself in ways that could compromise his or her defense in parallel criminal charges.
6. The composition of the hearing panel is weighted 3 to 2 in favor of students in ordinary misconduct hearings, but 2 to 1 in favor of faculty and staff (paid by Duke, of course) in sexual misconduct hearings.
7. All participants are required by the policy to keep "any information" about sexual misconduct proceedings confidential, apparently into perpetuity, which denies those found not responsible for sexual misconduct and those falsely accused from using the court of public opinion to clear their names (a right that was critical in the Duke lacrosse rape hoax case).
That list hits the highlights, at least. On these points, Duke's letter offers only a vague commitment to "give the points [FIRE] raise[s] due consideration" as it "continually evaluate[s] that delicate balance" between the rights of the complainant and the accused.
Sorry, Duke, but this "balance" is "delicate" only if you think an elephant and a mouse are delicately balanced. While Duke continues to "evaluate," for all we know multiple students are undergoing secret trials in which they are being evaluated for their "perceived power differentials" and found wanting. (If this is you, you probably should get legal advice very quickly.) Continuous evaluation simply is not going to cut it. Duke needs to rescind and reevaluate these aspects of its policy, and it needs to do so immediately.
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