Wednesday, April 30, 2014

Duke Again Dismisses Due Process

Last Wednesday’s Duke Chronicle published a lengthy item on Duke’s sexual assault procedures. Though framed as highly sympathetic to accusers (the article contains no quotes from accused students, defense attorneys, or civil libertarians), the major takeaway from reporter Julian Spector’s piece is that colleges in general (and Duke, of all places, in particular) have no business adjudicating sexual assault cases.

The Chronicle article explores the treatment of two sexual assault accusers. There are four takeaway items:

(1) Duke uses secret training material for those who adjudicate campus sexual assault cases. This is perhaps the most troubling item to appear from Spector’s report. The use of specialized training material for panels hearing sexual assault claims (and only for such claims) moves the process an additional step away from the accused student being judged from a jury of his peers. More problematic, the one school’s secret training material to be made public (Stanford’s) suggests that such items dramatically increase the chances of a guilty finding. Stanford’s specialized training, for instance, suggested that defendants who presented their case in a logical fashion were more likely to be rapists.

(2) Duke administrators appear unwilling or disinterested in encouraging alleged victims to report violent crime on campus to police, or even to encourage accusers to have medical exams. Spector describes the experiences of two campus accusers, “Jean” and “Christine.” Both met with Duke administrators to allege sexual assault; in Spector’s reporting, at least, neither was encouraged to report the assault to police. It’s hard to imagine any other violent crime, or any serious crime at all, in which campus officials would not encourage victimized students to go to trained law enforcement.

Nor does Duke appear much interested in encouraging any type of formal investigative process, including medical exams. Yet a SANE report includes a near-contemporaneous account by the accuser, and can provide other types of corroboration for a real victim of crime. Duke’s dismissal of SANE exams is particularly odd given that elsewhere in the article, Duke administrators suggest a key problem is determining consent in cases involving drunken students, and, according to one administrator, “These cases are strengthened by if there’s somebody else . . . or if there’s some documentation.” Accusers who immediately went for a SANE exam presumably would have a blood test to determine their alcohol level, giving Duke adjudicators something tangible to evaluate, rather than basing their ultimate decision on subjective standards.

(3) The preponderance-of-evidence threshold encourages a guessing game. A finding of culpability for sexual assault has a life-changing impact for the convicted student: even if Duke doesn’t expel him, the notice goes on his transcript, and likely would foreclose future careers in any profession that requires a background check. For students who actually committed a rape, of course, such a punishment is nowhere near sufficient. 

But there’s nothing in the Spector piece that suggests Duke’s process can successfully weed out false claims from true ones; indeed, much of Duke’s focus seems to be less due process than protecting the feelings of the accuser. Here’s Gender Violence Intervention Services Coordinator Sheila Broderick describing the process: “Nobody gets slut-shamed in that room, nobody gets disrespectfully spoken to—the conduct panel members are exceedingly pleasant.” Indeed, Broderick hinted to Spector that she accepts accusations as the truth, since even “if they [the Duke disciplinary panel] say he’s not responsible—you and I know that he’s responsible, and that’s at the end of the day what really matters.”

(4) Duke’s administrative process is one-sided. Duke administrator Stephen Bryan conceded the obvious: “There’s not one central body that works with students who are accused. We have disciplinary advisers who are trained by our office to offer support and guidance, but it’s not like the Women’s Center setup where most students go through them coming forward.”

Duke has a world-class law school. Is there any excuse for this oversight?


Anonymous said...

It appears that the powers that be at Duke didn't learn a thing from the case that keeps bringing us back to to DIW. Very slow learners indeed...

Anonymous said...

This is why so many of us, KC, don't understand why someone like you still identifies as a "liberal Democrat".

This is not just Duke. It's what universities across the country are doing as encouraged by the Department of "Justice" under a certain Mister Obama whom you voted for twice:

William L. Anderson said...

As I read this excellent post and read articles and accounts from higher education, I only can conclude that colleges and universities are no longer interested in knowing what actually happened versus a stylized set of accusations that become "facts." (I put "facts" into quotations because the people at Duke and elsewhere have decided that a "fact" is what they say it is.)

There are two problems here. The first is obvious: American institutions of higher education openly deride any reality-based events and are substituting what faculty and administrators believe should be standards of truth, standards that come from Wonderland.

The second is more sinister and brings up the question: When will these "standards" bleed into the criminal justice system? Yes, Duke is a private institution so it can have its own standards of due process, but we have to keep in mind that the university is reflecting the standards that the U.S. Department of Education is demanding be in place.

KC is right; no one at the law school publicly objects. Some of those students will become prosecutors, others will be legislators and others judges. If they approve of such Wonderland standards at Duke, they ultimately will approve them in a criminal justice system. It only is a matter of time.

The Mondale Act (CAPTA) and the Violence Against Women Act both require that states eliminate the prosecutorial need for corroborating evidence to "prove" a rape, sexual assault, or child molestation. An accusation alone serves as legal proof that the event happened. We have seen the results in the lacrosse case, and we also have seen thousands of people convicted of child molestation after social workers managed to get fantastic tales from young children.

(Read about the infamous Little Rascals case in North Carolina, and you will see just how Kafkaesque the system really is. Or look at the Amirault case in Massachusetts, which is proof that North Carolina is not the only state that convicts innocent people with impunity.)

As we have seen before, it does not take much for the courts to eviscerate the Rights of the Accused. The Bill of Rights means nothing to the courts, as the first Ten Amendments to the Constitution effectively have been repealed.

Thus, I see what is going on at Duke as a dress rehearsal for a larger tragedy in the USA. It is coming; it only is a matter of time.

skwilli said...

KC, as an historian, you must agree with the simplest tome, "those who forget the past are doomed to repeat it". Couldn't happen to a better crowd. God protect the innocent Duke students.

Anonymous said...

Another outstanding post, although I wish that you'd referenced your terrific article "The White House Joins the War on Men" that you posted yesterday.

I especially appreciated your link to the Christina Sommers video debunking the preposterous statistic: "One in five women is sexually assaulted in college."

Anonymous said...

Your last remark: "Duke has a world-class law school. Is there any excuse for this oversight?" should be reconsidered.

Duke has a "world renowned" law school; the assertion it is world class is open to debate.

Anonymous said...

Since every male (white, of course)in the military is a rapist and every female in the military a victim, it only stands to reason that every male (white, of course) on campus is a rapist and every female on campus is a victim too.

Of course, it's just a matter of time until every male (white, of course) in America is a rapist and every female in America is a victim.

With the exception, of course, of prominent male (white, of course) politicians in the Democratic party in Washington. They are champions of women's rights in the Republican "war on women", and women who accuse them of sexual misconduct are "trailer park trash."

Snark aside, I wonder how much longer people are going to continue voting for the Democrats in their current state? Especially if you have a white, male child of military or college age.

Thank you for the opportunity to vent.

- Rick

Anonymous said...

As a female who has been the victim of an attempted assault, I can say, without question, that every person who believes they are a victim should (a)call police, (b)get medical help/exam if needed and appropriate, and(c) press charges seek justice. The LAST thing I would have done, when this incident occurred (at university) was yell to Administration! This was a crime.....and was treated as such. It just totally befuddles me to think that a university should be allowed to be cop, judge and jury.....

Anonymous said...

While I do so only with the utmost respect, I depart from KC's characterization of Duke's "law school." Among serious law professors Duke's law school is widely understood as a joke. It simply isn't taken seriously and this is an open-secret.

Anonymous said...

To the 1:52

Please tell us more...

Anonymous said...

1:52 -- Would you mind naming some of these "serious law professors"?

Anonymous said...

Duke law once had Dellinger and Chemerinsky. Both of these worthies had been considered for appointment to SCOTUS. Both were on campus during the lacrosse case, which from a civil rights viewpoint may be viewed as "Scottsboro II".

Neither said a word in defense of Duke's students were who were falsely accused of a crime that never happened.

'nough said.

Anonymous said...

To the 2:30--

Sure. First, Duke has refined the art of "hiring" its recent law grads to (fraudulently) "dress" its placement numbers for US News reporting purposes. Duke law has to spend its own money hiring a number of its students because, evidently, they cannot get law jobs. Second, the Duke law faculty is famously underwhelming on the scholarship front and any stars leave as soon as they can for better law schools. As well, Duke is also "known" for establishing the "Professor of the Practice" title. What that title signals to real legal scholars is that these folks couldn't get onto the faculty through the normal tenure process. (That said, maybe they pay these folks peanuts, maybe it's a form of AA--who knows?) But just pull the publication list from the law school's faculty and you'll see. Third, the law school's experiment with a "practitioner" (read: non-scholar) Dean is not going well. To be sure, Levi was a formal district court judge, but the only "real" scholar in that family was his dad, Ed Levi (former Dean and Prof. at the Univ. of Chicago Law School.) Duke's Levi is probably the only law school Dean who is *not* a tenured member of the law faculty that he purports to lead. I could go on, but, candidly, the point should be clear. After all, what law school would sit silently--literally silently--while the 21st century version of the Scottsboro Boys played out underneath their noses?

To the 3:17 -- Nice try, troll.

Anonymous said...

Even as a center-right person, I don't give a damn about how Professor Johnson politically identifies. Just keep doing excellent posts like this in addition to eviscerating all aspects of the Cohan travesty.

Anonymous said...

to 3:39 Excellent Post. I always wondered why the Duke law school wasn't actively engaged. The silence was genuinely deafening.... I thought is was "PC fear" but incompetence is a much better explanation!

Anonymous said...

To the 4:04--

Thanks, but don't neglect how "PC fear" and "incompetence" interact. That is, a willingness to genuflect to PC fears (e.g., the Gang of 88 at Duke) is further and per se evidence of rank incompetence.

Anonymous said...

To the 4:10 l

Lawyers are supposed to desire the most challenging and interesting cases and not be cowards. Instead of the Duke law school getting great notoriety (which, god knows, they need), they let other attorneys steal the thunder that could have so easily been theirs. Who would hire a cowardly PC correct attorney from Duke now? ...they won't even go to bat for their own! What a pathetic law school!

MTM said...

To 11:28

Thanks for your insight. I would hope, without much reason to believe, that campus police would work with other law enforcement to seek justice. I completely agree that when a crime has been committed the criminal justice system should intervene. While far from perfect, it is more likely to be diligent compared to the tidal ebb and flow of college administrators.

Mike Maloney, Clemson

Chris Halkides said...

Thank you for another excellent post. However, as you have been documenting for the last several years at Minding the Campus, Duke is hardly the only offender.

Chris Halkides said...

William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
"William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"

From the movie "A Man for All Seasons," courtesy of the IMDB.

A Duke Dad said...

How do schools manage to follow the "Dear Comrade Colleague" letter, and their Animal Farm regulations in light of the Sixth Amendment ?

Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

RighteousThug said...

Duke Dad, therein lies the rub, the concern over the lack of Constitutional protections.

The key words here are "In all criminal prosecutions" - these proceedings aren't criminal in nature (although the alleged crimes are, of course); they are better described as "administrative".

Remember that alleged victims are not encouraged, or even discouraged in many cases, to report even violent sexual assault to law enforcement, or to undergo a timely medical (SANE) exam.

The less evidence, the better.

RighteousThug said...


I couldn't help noting that it's at least encouraging Julian Spector of the Duke Chronicle is exposing the nasty details of the Duke process, albeit "framed as highly sympathetic to accusers".

A Duke Dad said...

@ RighteousThug :

I see your point about 'criminal prosecutions'. However, sexual assault IS a criminal act.

Anything said in the 'administrative hearing' could be subpoenaed for a criminal trial by the DA.

Perhaps we should consult an expert on self incrimination, like Lois Lerner or Kathleen Sebelius.

Anonymous said...

To Duke Dad are correct. I am learning the liars on the left are becoming legend. ...and don't forget you can keep your doctor and health plan etc. Now Benghazi!

Rick said...

In the news today, Vice-President Biden reports that 1 in 5 women attending, or who have attended, a college in the US is a victim of sexual assault. A Pentagon study released today reports that 26,000 women in the military were sexually assaulted in 2013.

What the hell! Let's just go for broke and say every woman in the US has been raped, and every man in the US is a rapist! Every child born in the US is the result of a rape! This is apparently, after all, the ultimate goal of the current administration. To make every male in the US a rapist and every female in the US a victim.

Who the hell knows why? Perhaps to generate votes from morons who can't think?

Is there anyone left in the media of this country capable of critical thought?


Rick said...

I served as an officer in the US military for 33 years. There is no way in hell that 26,000 women were sexually assaulted in the military last year. In my entire career I know of not one single credible accusation of rape that was not dealt with directly by host-country police, including in the US. This is an absolute, unadulterated lie by this administration, for God only knows what reason.

My wife has a degree. I have a degree. My son is in college. All of his female friends are in college. There is absolutely no way in hell that 1 out of every 5 of the females in US colleges today have been sexually assaulted. Period, dot, end of discussion. What kind of absolute moron could believe this?

Can someone here, anyone, please tell me what the end-game result is that the Democrats are going for in this witch-hunt?

Men in the US are not rapists, and women in the US are not victims of rape! Who the hell profits by insisting otherwise?

RighteousThug said...

B Hussein, Officeholder, and the Dept of Ed are all over it:

55 Schools Face U.S. Federal Sex Assault Probe

Anonymous said...

"Men in the US are not rapists, and women in the US are not victims of rape! Who the hell profits by insisting otherwise?"


Rick said...

The administration is releasing these flagrantly false statistics as a prelude to their midterm campaign issue that they are combating a Republican "war on women", which of course is another lie invented by the Democrats. They know they risk getting their rear-ends handed to them on a platter this fall and are going to progressively bring out bigger and bigger lies to try to prevent this. Of course, these kind of lies do real damage in the form of frightening parents to the point that they may not let their daughters attend college or join the military, enabling false accusations of rape which can destroy young men's lives (as in the Duke lacrosse case), and perhaps worst of all, diminishing the credibility of real rape victims.

None of this matters to the Democrats, though. All that matters is holding onto power, through whatever means. They have no shame. Contact your representatives and tell them this. Most importantly, vote them out of office this fall.