DURHAM, N.C., April 7, 2010—Duke University has instituted a new "sexual misconduct" policy that can render a student guilty of non-consensual sex simply because he or she is considered "powerful" on campus. The policy claims that "perceived power differentials may create an unintentional atmosphere of coercion." Duke's new policy transforms students of both sexes into unwitting rapists simply because of the "atmosphere" or because one or more students are "intoxicated," no matter the degree. The policy also establishes unfair rules for judging sexual misconduct accusations. The Foundation for Individual Rights in Education (FIRE) is challenging the policy.
"Duke's new sexual misconduct policy could have been written by Mike Nifong," said FIRE Vice President Robert Shibley. "Members of the men's basketball team could be punished for consensual sexual activity simply because they are 'perceived' as more powerful than other students after winning the national championship. Students who engage in sexual behavior after a few beers could be found guilty of sexual misconduct towards each other. This is not just illogical and impractical, but insane. Given its experience during the lacrosse team rape hoax, Duke, of all schools, should know better than to institute such unjust rules about sexual misconduct."
The new policy was introduced at the beginning of the school year with fanfare from the Duke Women's Center—the same center that apologized for excluding pro-life students from event space in a case FIRE won last month. Women's Center Director Ada Gregory was quoted in Duke's student newspaper The Chronicle justifying the new policy, saying, "The higher [the] IQ, the more manipulative they are, the more cunning they are ... imagine the sex offenders we have here at Duke—cream of the crop." (In a follow-up letter to The Chronicle, Gregory claimed that the quote was inaccurate and did not reflect her views, but stood by her analysis that campuses like Duke are likely to harbor smarter sex offenders who are better able to outwit investigators.)
Duke's vastly overbroad definition of non-consensual sex puts nearly every student at risk of being found guilty of sexual misconduct. Students are said to be able to unintentionally coerce others into sexual activity through "perceived power differentials," which could include otherwise unremarkable and consensual liaisons between a varsity athlete and an average student, a senior and a freshman, or a student government member and a non-member.
Further, students are said to be unable to consent to sexual behavior when "intoxicated," regardless of their level of intoxication. Duke has turned mutually consensual sexual conduct, which might merely be poorly considered, into a punishable act. Adding to the confusion, if both parties are intoxicated at all, both are guilty of sexual misconduct, since neither can officially give consent. North Carolina law does not support this definition of consent.
"Of course, there is no way that everyone who was intoxicated during sexual activity, let alone 'perceived' as more powerful, is going to be charged with sexual misconduct," said Adam Kissel, Director of FIRE's Individual Rights Defense Program. "Add to that the provision about an unintentional atmosphere of coercion, and anyone can see that Duke's policy is impossible to rationalize or to fairly and equitably enforce. As a result, this policy effectively trivializes real sexual misconduct, which is a gravely serious crime."
The new policy even makes reporting of so-called sexual misconduct mandatory for any Duke employee who becomes aware of it, regardless of the wishes of the alleged victim.
Furthermore, Duke has made fair enforcement of the sexual misconduct policy even more difficult by establishing different procedures and even a different "jury" to judge sexual misconduct complaints. For instance, sexual misconduct charges are judged by two faculty or staff members and only one student, but all other offenses are judged by a panel of three students and two faculty or staff members. Duke fails to explain why a jury with a majority of one's peers is necessary for charges like assault or theft but not sexual misconduct.
Other problems in the sexual misconduct policy, detailed in FIRE's letter to Duke President Richard Brodhead of March 4, include giving the complainant more rights than the accused, requiring the results of a hearing to be kept secret in perpetuity even if one is found not guilty or is falsely accused, and allowing anonymous and third-party reporting so that the student may never be able to face his or her accuser.
FIRE wrote, "As a private university, Duke is not obliged to agree with the authors of the Bill of Rights about the value of the right to face one's accuser. Nevertheless, Duke ignores their wisdom at the peril of its own students and reputation." Duke has declined to respond to FIRE's letter in writing.
"More than any other school in the nation," Shibley said, "Duke should be aware that its students deserve the best possible rules and procedures for ensuring that rape and sexual misconduct charges are judged fairly. Sexual misconduct is a serious offense. Duke students deserve a policy under which true offenders will be punished but the innocent have nothing to fear."
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America can be viewed at thefire.org.
Tell Duke University to give its students the protections they deserve. Write to President Brodhead here.