Three Duke University students were the victims of the highest-profile fraudulent rape claim in modern American history. That fact alone should make the University particularly sensitive to the dangers of false rape allegations, and the need for a firm commitment to due process in handling any allegation of sexual misconduct.
But Duke administrators seem to worry not about violating the due process of rights of their students but instead about running afoul of politically correct campus ideologues. So, starting this semester, the University has adopted a new “sexual misconduct” policy—a policy that even some Duke administrators fear will lead to an increase in false rape claims against Duke students.
Last Friday, the Chronicle reported the arrival of the new policy. Two factors prompted the change. The first was an increasingly common phenomenon on college and university campuses—a fear of litigation, as expressed by Duke General Counsel Pamela Bernard. Yet the policy Duke has developed seems like a lawsuit waiting to happen.
The second factor was a development that those in the reality-based community might consider to be a good thing: over a three-year period, reported cases of sexual misconduct on college campuses as a whole and at Duke specifically (slightly) declined.
But for those convinced that the rate of sexual assault at Duke is higher than the rate of all violent crimes in Detroit, these figures must mean something else—that a plethora of rapes are going unreported. The enemy in this battle, moreover, is particularly devious. As Ada Gregory, director of the Duke Women’s Center, told the Chronicle, “The higher IQ, the more manipulative they are, the more cunning they are . . . imagine the sex offenders we have here at Duke—cream of the crop.”
Of the many nutty statements generated by the lacrosse case or its aftermath at Duke, this assertion has to rank as among the nuttiest. Let’s leave aside the fact that in nearly every other context, campus “activists” blanch at suggesting a connection between IQ scores and any type of cognitive abilities. What actual evidence exists to corroborate Ms. Gregory’s extraordinary assertion?
I emailed Gregory to ask if she could cite studies showing that sex offenders at good universities are more “cunning” or “manipulative” than sex offenders without college educations or with lower IQs; or if the Duke Women’s Center had access to studies showing that elite universities needed to take special steps to deal with the presumably “cunning” and “manipulative” male student criminals in their midst.
Gregory responded by pointing me to a letter from her in yesterday’s Chronicle, in which she did some damage control. She asserted that her IQ comment was inaccurate “in the context of our conversation” and that her comments were “selectively edited and taken out of context to imply that all Duke students fit this pattern, which is emphatically not the case.”
Gregory’s letter, however, essentially repeated what she told Chronicle reporter Lindsey Rupp—albeit in far less inflammatory language: “The difficulty in detecting and investigating sexual assault cases, particularly acquaintance rapes, which are often committed by undetected rapists who use manipulation and coercion, has been shown by the research of David Lisak, a University of Massachusetts at Boston clinical psychologist, and others. The investigations of these crimes can be further complicated by offenders who may also be categorized as antisocial or sociopathic, who are of above-average intelligence and can be highly manipulative and coercive, not only with victims but in the investigation process. Universities gather a lot of people with above average intelligence, so it stands to reason that campuses might see more of these kinds of individuals than the general population.” [emphasis added]
Yet Lisak’s own research does not seem to substantiate Gregory’s point about a greater likelihood of finding undetected rapists among elite universities with intelligent students than in the general public. While Lisak does focus on the dangers of coercion or manipulation, here is the conclusion of a 2008 paper he delivered on “undetected rapists”: “The implications of the research on undetected rapists – research that has largely focused on men in college environments – point to the similarity of these offenders to incarcerated rapists. [emphasis added] They share the same motivational matrix of hostility, anger, dominance, hyper-masculinity, impulsiveness and antisocial attitudes. They have many of the same developmental antecedents. They tend to be serial offenders, and most of them commit a variety of different interpersonal offenses. They are accurately and appropriately labeled as predators.”
Sheila Broderick, a Women’s Center staffer, was even blunter on the need for a more forceful policy. (This was the same Sheila Broderick who praised the Group of 88-oriented Campus Culture Initiative report for stimulating “critical thinking and thoughtful analysis.”) Her own “thoughtful analysis”? Duke, a university with 13,457 students and five reported allegations of sexual misconduct in 2007, suffers from a “rape culture.”
Ms. Broderick’s evidence for this breathtaking claim? Assertions (which appear to be undocumented) that an unrevealed number of male Duke students had imitated a figure called “Party Boy Chad,” one of the characters in a required presentation for freshmen put together by the Women’s Center.
I twice e-mailed Broderick to ask if she had evidence for her claim that did not involve a Women’s Center fictional character; and if she could provide a precise definition of what constituted a “rape culture” at Duke.
Broderick did not reply.
So what is the new Duke policy that has so excited Gregory and Broderick?
Starting this semester, Gregory and Broderick of the Women’s Center, along with the Office of Student Conduct (Duke’s judicial arm), will be notified of all allegations of student sexual misconduct made to any university official (including RA’s in the dorms). Both will then involve themselves intimately in the process.
What, precisely, does Duke consider sexual misconduct? In addition to sexual assault, Duke defines sexual misconduct as “as any physical act of a sexual nature perpetrated against an individual without consent or when an individual is unable to freely give consent,” including “sexual exploitation, defined as taking nonconsensual, unjust sexual advantage of another for one’s benefit or the benefit of another party . . . The university’s definition of sexual misconduct mandates that each participant obtains and gives consent in each instance of sexual activity. Consent is an affirmative decision to engage in mutually acceptable sexual activity given by clear actions or words . . . consent to one form of sexual activity does not imply consent to other forms of sexual activity . . . Conduct will be considered ‘without consent’ if no clear consent, verbal or nonverbal, is given.”
Duke’s policy does not explain what constitutes “nonverbal” consent, nor does it guide students who participate in sexual activity how they need to record their consent (verbal or nonverbal) to defend themselves against future false charges.
As reflected in Gregory’s comments, the policy is concerned with the possibility of sexual misconduct through coercion. A “fundamental principle” of the sexual misconduct policy is the following: “Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” [emphases added] How, precisely, should a Duke student be held liable for “perceived” power differentials creating an “unintentional” atmosphere of coercion? Duke’s policy does not explain.
Perhaps most alarmingly, the new policy dramatically expands the power of the Office of Student Conduct, headed by the due process-unfriendly Stephen Bryan. The office now has the power to investigate each and every sexual misconduct allegation, even if the accuser does not want to proceed. Bryan additionally told the Chronicle that “the OSC could hire an outside person to assist in conducting investigations into sexual misconduct.” These proposals, it’s worth remembering, come from the same university that repeatedly proclaimed it couldn’t investigate Crystal Mangum’s allegation of sexual misconduct, lest by so doing it obstruct justice.
“Accused students,” the disciplinary guidelines reassure, “can expect a presumption of innocence throughout the disciplinary process.” But the procedure tilts so heavily in favor of the accuser that it undermines even the pretense of a presumption of innocence.
The accused student does not have a right to an attorney. Instead, he can select a “member of the university community” to serve as an advisor. That advisor can attend the disciplinary hearing, but cannot ask any questions, nor even speak (except to the accused student).
The accused student does not have a right to confront his accuser. Instead, he has only the right to ask questions “directed through the hearing panel,” with the panel retaining sole discretion as to whether or not to present the witness with the question. And, of course, such a cumbersome process vitiates any right of effective cross-examination.
The accused student does not have a right to transparent scheduling. Instead, Duke guarantees only “a 120-hour (five day) notice in advance of a hearing.”
The accuser in a sexual misconduct case, moreover, receives three rights denied to the accused student. Each of these special rights tilts the process in the accuser’s favor.
First, Duke guidelines state that the sexual misconduct accuser “will be treated with respect and sensitivity [emphasis added] before, during, and after the disciplinary process.” The accused student, on the other hand, only must “be treated with respect throughout the process.”
How is a promise to treat the accuser but not the accused with “sensitivity” consistent with the “presumption of innocence” for the accused? Duke doesn’t say.
Second, Duke guidelines state that sexual misconduct “complainants will be given the opportunity to make opening and closing statements to a hearing panel.” The accused student, on the other hand, is promised no such opportunity.
How is giving a right to make opening and closing statements only to the accuser consistent with the “presumption of innocence” for the accused? Duke doesn’t say.
Third, Duke guidelines state that sexual misconduct “complainants have the right to receive—within the parameters of FERPA—a copy of the written information given to a hearing panel.” The accused student, on the other hand, is promised no such right. This is particularly ominous given Duke’s new ability to hire an outside investigator to look into sexual misconduct allegations. Yet while the accused student has no right to receive any of the “written information” that the investigator produces (what in a criminal case would essentially be the discovery file), his accuser can get all of the documents, except for those covered by FERPA.
How is giving a right to receive written material only to the accuser consistent with the “presumption of innocence” for the accused? Duke doesn’t say.
Responding to a biting series of columns by former Duke Student Government president Elliot Wolf, Dean Bryan suggested that as the purpose of the Duke judicial process is education of the offenders, not their punishment, the process didn’t need to provide the due process protections featured in a criminal investigation. A glance through The Shadow University, which traces the due process-unfriendly character of university judicial processes often lead to unfair or incorrect results, shows the absurdity of that statement.
But even accepting Bryan’s rationalization, the new Duke “sexual misconduct” policy would not be covered by the argument Bryan made to Wolf. Almost all of the misconduct described in the policy is criminal. (The exception would be the Orwellian assertion about “unintentional” coercion through “perceived” power differentials.) And the policy guidelines explicitly note that “complainants also have the right to report criminal sexual conduct to local law enforcement, which does not preclude university disciplinary action.” [emphasis added] Indeed, one passage in the new policy suggests that Duke could function as a conduit between the accuser and law enforcement: “OSC may also refer the matter to another university office and/or notify the appropriate law enforcement agency.” [emphasis added]
So from here on out, Duke has assigned itself the power to conduct a parallel investigation to a criminal investigation, or even to refer matters (with or without the accuser’s consent) to “the appropriate law enforcement agency” (the Durham Police Department and Durham County “Minister of Justice” Tracey Cline) for investigation and prosecution. Duke has also assigned itself the right to hire its own investigator—the role that Linwood Wilson played for Mike Nifong—to look into the allegations.
Dismissing the need for any guidelines, Bryan informed the Chronicle that the investigations will be handled on an “ad hoc” basis. Can the investigator use evidence from anonymous sources? Can the investigator speak to the accused student, and, if so, does the investigator have an obligation to remind the accused student of his rights? How will Duke ensure that the investigator does not use hearsay evidence? There are, incredibly, no written guidelines for how the investigator must behave—and yet Duke maintains that the system operates under a “presumption of innocence” for the accused.
And what happens with the file that the investigator creates if local law enforcement decides to pursue a criminal investigation? It’s not too hard to imagine Cline—who, after all, was going to be second chair if a trial occurred in the lacrosse case—imitating her mentor and going after Duke students if a future election bid runs into trouble.
If Cline subpoenas the Duke investigatory file, how will the University respond? If it invokes FERPA and refuses to turn over the material, imagine the opening for Candidate Cline to demagogue—perhaps, like her mentor, in an appearance at NCCU, something along these lines: “Duke is withholding material that would allow me to convict what even a Duke administrator has called the University’s ‘cunning’ and ‘manipulative’ sexual offenders. We shouldn’t let those rich out-of-staters—what even a Duke administrator has termed the ‘cream of the crop’ of the nation’s sexual offenders—get away with it.”
And if Duke turns over the material? A University process with no meaningful due process protections could be used to help convict a potentially innocent Duke student.
In her interview with the Chronicle, Gregory conceded that even Duke administrators—who, as we all have come to know, are not terribly sensitive to the possibilities of fraudulent rape claims—expressed fears that the new policy (coupled, of course, with a judicial process whose procedures overwhelmingly favor the accuser) would result in an increased filing of false claims of sexual misconduct.
Gregory had no such concerns: “We’re creating an environment that says, ‘This is not tolerated in our community,’ and when you create that environment, victims are more likely to come forward and seek help.” How creating an environment that says sexual assault isn’t tolerated (as if any elite university currently has a campus environment that “tolerates” sexual assault) guards against the filing of false sexual assault claims Gregory didn’t say.
Instead, Gregory sees the new Duke policy as an example for other universities to follow. That’s even though the one researcher she cited, David Lisak, has argued against the very type of procedure Duke has now set up. Last year, he wrote, “The less benign reality of sexual violence in the university setting also carries implications for university judicial processes. A judicial board would hardly seem the appropriate venue to deal with a sexual predator. Further, cases of non-stranger rape are extremely difficult to properly investigate and prosecute – they are in fact far more complex than the majority of stranger rapes. A proper investigation requires skilled and specially-trained investigators working closely with specially-trained prosecutors.”
In short, according to Lisak, Duke’s new “ad hoc” investigatory policy is exactly what universities should not be doing.
You might think that a university that witnessed the highest-profile rape hoax in modern American history would go out of its way to protect its students from future such hoaxes. At the very least, you might think that such a university wouldn’t design a procedure—motivated by many of the same politically correct impulses that fueled the rush to judgment in 2006—that even its own administrators worried could produce more false sexual misconduct claims.
Duke, instead, has gone in the opposite direction, adopting a policy that Women’s Center Director Gregory concedes is far more extreme than that at most universities in the country. Simply extraordinary.