More from Yale & Hofstra

Writing at cbsnews.com, legal analyst Andrew Cohen expressed concern about the legal impact of the massive publicity in the Yale murder case. Taking note of the breathless reporting from “anonymous” sources, Cohen noted that “it’s no wonder that [defendant Raymond] Clark’s attorneys now are talking about opening a legal ethics case into the way prosecutors and the police have trampled upon Clark’s fair trial rights, and his constitutionally-protected presumption of innocence.”

Cohen is absolutely correct in his concern. Of course, what Clark has encountered paled in comparison to what the falsely accused Duke students received. The New Haven district attorney didn’t (to my knowledge) give 50-70 interviews to the local, state, and national reporters—as the disbarred Mike Nifong did. Clark’s mugshot didn’t appear on the cover of Newsweek (and with a headline prominently featuring the word “lies”)—as Reade Seligmann’s and Collin Finnerty’s did. And, of course, a crime actually occurred in the New Haven case—whereas Duke featured only constantly shifting and mutually contradictory allegations of a crime.

Given that the publicity orchestrated by Nifong and almost gleefully amplified by the media was even more intense than what Clark has been subjected to, some might assume that Cohen was, at the least, equally outspoken in his criticism of how the Duke case publicity trampled upon the players’ fair trial rights, and their constitutionally protected presumption of innocence.

Cohen was outspoken in the Duke case, of course, but concerns with due process or “legal ethics” did not figure high in the commentator’s analysis.

Indeed, in a late June 2006 washingtonpost.com column, Cohen preposterously claimed that the media had rushed to the “defense” of the Duke defendants. (So that was why two editors of the Times apologized for their biased coverage!) Ignoring that Newsweek cover, most of the first few weeks of the case, and everything published in the Times or broadcast on Nancy Grace, Cohen maintained “there is no balanced coverage in the Duke case. There is just one defense-themed story after another.” He demanded for Mike Nifong and Nifong’s Durham supporters “the privilege of seeing the case unfold at trial the way it is supposed to.”

What explains the imbalance—to borrow a word—in Cohen’s analysis? His assertion that the lacrosse players benefited from “race and money.” Clark, on the other hand, while white does not appear to have upper-class or upper-middle-class parents. And so, to cbs.com’s “chief legal analyst,” the pre-trial coverage of his case is a threat to due process, while Nifong’s massive misconduct and the mainstream media’s rush to judgment appeared of no concern.

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In Slate, Emily Bazelon made the following observation: “The Hofstra University gang rape that wasn’t is the sped-up version of the Duke lacrosse rape. In the Duke scenario, a woman who’d been brought in to dance at a lacrosse party said she was the victim of a brutal 30-minute gang rape in the bathroom by three lacrosse players. Durham County District Attorney Mike Nifong got caught up in prosecuting the charges and defending the false accuser to the point of professional insanity."

That strikes me as an awfully generous description of Nifong’s motivations, in that it ignores the conclusion of the State Bar’s ethics panel that “self-interest” formed the basis of Nifong’s actions. And, of course, in the lacrosse case, no contact of any kind occurred, unlike in the Hofstra case.

Bazelon further observes, “The weird lesson for men who have group sex in bathrooms: Film it on your cell phone. Five minutes of video of the sex, which one of the men gave the cops, apparently persuaded the 18-year-old to take back her original story. At another moment, such a video might have gotten the guys in trouble for making porn and for sexting. But this time, it seems to have saved them.”

That certainly is a lesson applicable for Duke students: as I have noted before, videotaping sexual encounters appears to be the only way to guard against the filing of false sexual assault charges under Duke’s new policy, whose procedures are tilted blatantly in favor of the accuser.

Finally, something that the Nifong-rationalizing Andrew Cohen might want to take note of: the main reason that “the Hofstra University gang rape that wasn’t is the sped-up version of the Duke lacrosse rape” is that the Nassau County DA’s office was willing to look at the exculpatory evidence that the suspects possessed.

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In response to the filing of false sexual assault charges by one of his institution’s students, Hofstra president Stuart Rabinowitz issued a statement, in which he asserted:

We will redouble our educational efforts and try to increase awareness among students, faculty, and staff of any potential signs of danger or dangerous behavior, and the need to pass that information on to Public Safety so that it can be adequately and appropriately addressed . . . I will be appointing a Presidential Task Force under the direction of the Vice President for Student Affairs and the Vice President for Facilities and Operations and consisting of representatives from students, faculty and administrators, to undertake a review of all aspects of security, including operations, communications, programs, policies and procedures to insure that we are taking every possible precaution to maintain a secure and safe campus. In addition, we will once again be seeking to utilize the services of an outside consultant to conduct a security audit and make recommendations as to best practices and possible enhancements to our program.

Again: the issue in this case was a Hofstra student making up a false rape claim. How would a security audit address that issue—will Hofstra security officers increase campus patrols, on the lookout for women who make false rape claims in their midst?

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One last item: the Nassau County DA's office has announced that it will not file charges against the rape false accuser, Danmell Ndonye. The reason, according to the New York Post: "Prosecutors defended not bringing charges against Ndonye, saying that if they did, she would have faced only mental-health treatment and community service because of her age and lack of a criminal record."

This was about as obvious a case of filing false charges as possible: a videotape showed that Ndonye had lied, and Ndonye admitted that she had lied. Yet even in this sort of case, where Ndonye's word and Ndonye's word alone could have sent innocent people to jail for decades, the maximum punishment she could have received was a slap on the wrist. To, again, borrow Andrew Cohen's phrasing, there's something out of balance in this sort of arrangement.

The Times, the Post, and Hofstra

The name “Crystal Mangum” only appeared on the news pages of the New York Times after Mangum published her “memoir.” Carrying its policy of not naming sexual assault accusers to an absurdist extreme, the Times refused to use Mangum’s name when reporting on Attorney General Cooper’s announcement that Mangum’s myriad, mutually contradictory claims were wholly false and without any evidence.

While the Times made coverage of an alleged rape hundreds of miles away a priority (more than 100 articles), it has devoted scant attention to an equally spectacular claim of sexual assault just outside of New York City. (Doubtless the fact that the suspects in the Hofstra case were non-white had nothing to do with the Times’ editorial judgment.)

In the one non-AP article the Times thus far has seen fit to run (on the dismissal of the charges), reporter Anahad O’Connor did not reveal the name of the false accuser, Danmell Ndonye, while he did mention the names and ages of the four people Ndonye had falsely accused.

I e-mailed O’Connor to ask about his rationale for this decision; he did not reply. But he did reply, through the Times automated e-mail system, to a DIW reader. His explanation: “The reason the article did not contain the accuser’s name is really quite simple. [Note in the e-mail, O’Connor still declines to use Ndonye’s name.] At the time the article was published, the authorities had yet to release it. It only came out at a later time. If you’re upset, you should direct your outrage at the district attorney’s office.

This explanation of what passes for Times journalism is an intriguing one. Perhaps the Times should change its motto from “All the News That’s Fit to Print” to “All the News Government Officials Have Seen Fit to Supply.” The latter motto certainly would have covered Duff Wilson’s role as a de facto stenographer for Mike Nifong during the lacrosse case.

In any event, O’Connor’s explanation is simply untrue. On the same day that the Times left its readers ignorant, the New York Post reported Ndonye’s name. Perhaps, on sexual assault cases, the Post understands that newspapers must do more than simply copy down what the authorities say.

From the Newsdesk

Two issues in the news over the past week have brought to mind lessons of the lacrosse case.

The first, of course, came at Hofstra, where a freshman student named Danmell Ndonye falsely accused five men of raping her. Four of the men were arrested, solely on the basis of Ndonye’s claims; the only one of the four who was a Hofstra student was immediately suspended by the university.

The falsely accused men were saved by technology: one of them had recorded the episode with his cell-phone camera, thereby proving that Ndonye was lying. One of the suspects admitted, “It didn't look good for us. I thought we would do time.” Imagine this case without the existence of a cell-phone video capability—or the lacrosse case without cell-phone camera (which established a timeline), cell-phone triangulation technology (which showed Collin Finnerty wasn’t at the house when the “crime” allegedly occurred), or bank ATM videos (which showed Reade Seligmann wasn’t at the house when the “crime” allegedly occurred).

Sadly, this case seems to offer a lesson for those intent on self-protection under Duke’s new, draconian sexual assault code. Since the code requires evidence of consent at each stage of the intercourse process (“Conduct will be considered ‘without consent’ if no clear consent, verbal or nonverbal, is given”), and since even if consent is given a student can nonetheless be found guilty (“Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion” [emphases added]), a written contract indicating consent at each stage of the process could be challenged (on the grounds that it was “unintentionally” “coercive”). Of course, videotaping acts of intercourse is—to put it mildly—in terrible taste. But as long as Duke’s code maintains its current wording, there would seem to be little alternative.

On another front: the New York Times covered the accuser’s recantation in an article penned by Anahad O’Connor. O’Connor’s article shielded Ndonye’s name, yet included the names and ages of the four men she falsely accused. Even assuming that a rationale exists for shielding the names of false accusers (which is quite a stretch in and of itself), what possible rationale could exist for not reporting the name of the false accuser while simultaneously reporting the names of the people she falsely accused? I e-mailed O’Connor for comment, but have not received a reply; if I do, I will post it.

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Meanwhile, in the aftermath of the murder of a Yale graduate student, the New Republic reminded us of the fate of James Van de Velde, the Yale lecturer deemed a suspect (but never accused, and almost certainly innocent) in the 1998 murder of Suzanne Jovin.

Van de Velde, who had been a popular lecturer (whose courses dealt with more “traditional” topics out of favor with the then-dean of faculty, Richard Brodhead). Van de Velde had been questioned by police, but had not received any media attention—until the day before spring term 1999 classes, when he received a letter from Brodhead informing him that he would be removed from the classroom for the pending term.

Here is how James Bennet, writing in the New York Times Magazine, described the next day’s events:

The next day, students showed up for one of Van de Velde's classes to find a terse notice of its cancellation on the blackboard. In a statement, Yale noted that it presumed Van de Velde innocent, but that the New Haven Police had informed the University that he was "in a pool of suspects in the murder. "Under these circumstances," it continued, "it is inevitable that his classroom presence would be accompanied by continuing speculation about events outside the classroom that would constitute a major distraction for students and impair their educational experience."

The police confirmed Yale's statement, and for the media this was a bugler's call. Van de Velde's telephone and doorbell rang, he said, from 6:30 in the morning until 11 at night. He took to sleeping on a friend's floor.

Brodhead assured Bennet that he believed “the presumption of innocence is not a trivial thing.”

Indeed.

A Note from Hofstra

Doubtless Wendy Murphy will be appearing on some news program to demand that the "secret" evidence from this case be released as well.

The County DA stated, "Late this evening, during the continuation of the Nassau County Police Department's investigation of the allegation, and under questioning by my office's chief trial attorney and chief sex crimes prosecutor, the alleged victim of the sexual assault admitted that the encounter that took place early Sunday morning was consensual." But, as Ms. Murphy and others told us repeatedly in the Nifong case, such questioning would be out of the norm.

And continuing the policy demonstrated in its refusal to name Crystal Mangum, the New York Times is shielding the name of the Hofstra false accuser. What possible rationale could the politically correct Times have for such a policy?

A Final Word on Lisak

As I noted in my previous posts, Duke women’s center director Ada Gregory, in her damage-control letter to the Chronicle, cited the work of researcher David Lisak to bolster her . . . provocative . . . claim that elite universities face a particular threat from potential rapists because these institutions house more intelligent people than the general public.

As I also noted in my previous posts, not only did Lisak’s articles and papers that I read fail to prove this claim, but they provided no basis for it at all—Lisak did not mention rapists’ IQ or intelligence in the writings that I read.

Below are the synopses of Lisak’s other articles discussing his studies of rape and sexual assault. And, keep in mind, Lisak is hardly out-of-step ideologically with people like Gregory or the Group of 88, since he has endorsed a claim (that no actual crime figures support) that roughly 40 million American women have been victims of sexual assault.

“Motivational factors in nonincarcerated sexually aggressive men,” Journal of Personality & Social Psychology. 55(5):795-802.

Research on convicted rapists has demonstrated the importance of several key motivational factors in male sexual aggression. In particular, anger at women and the need to dominate or control them have been repeatedly implicated. Although anger and power have also been shown to be important in understanding college men who report sexually aggressive behavior, there has been little research on what underlies these motives. This research combined questions assessing these underlying motivational factors, as well as questions dealing with underlying sexual motivation and disinhibition, with a slightly modified version of the Sexual Experiences Survey (Koss & Oros, 1982). In Study 1, subjects were 184 male undergraduates. Factor analysis of the questions composing the four scales yielded four slightly modified scales. Scales measuring underlying anger, underlying power, and disinhibition significantly differentiated sexually aggressive from nonaggressive men but did not distinguish between men who were coercive, manipulative, or nonaggressive. In a replication on a smaller sample (n = 70), underlying anger, underlying power, and disinhibition again differentiated sexually aggressive from nonaggressive men.

“Motives and psychodynamics of self-reported, unincarcerated rapists,” American Journal of Orthopsychiatry. 60(2):268-80, 1990.

Fifteen men, classified by self-report as rapists and attempted rapists, but who had never been arrested or convicted, were compared to a matched control group on standardized instruments and content-coded interviews. Differences in hostility toward women, power motivations, and hypermasculinity were similar to findings from studies of convicted rapists. However, results suggest a greater role for the father in the etiology of rape-associated dynamics than has previously been reported.

“Educational, occupational, and relationship histories of men who were sexually and/or physically abused as children,” Journal of Traumatic Stress. 7(4):507-23, 1994.

Ninety men (mean age 26) at an urban Northeastern university were administered a self-report assessment of their early sexual and physical abuse experiences, and their educational, occupational, relationship, and substance abuse histories. Subjects were classified as sexually abused according to criteria used by Wyatt (1985) and Finkelhor (1979). Sixteen men (17.8%) experienced sexual abuse alone, 22 men (24.4%) physical abuse alone, 15 men (16.7%) both sexual and physical abuse, and 37 men (41.1%) were classified as nonabused. Of the 31 men who reported sexual abuse, 24 (77.4%) were contact, the rest noncontact. Sexually abused men reported significantly greater difficulties than nonabused men at all levels of education: grade school, high school and college. They also reported more negative job experiences and more negative experiences in relationships. Physically abused men showed a similar but less pervasive pattern of difficulties. Substance abuse was significantly more prevalent among both sexually and physically abused men than among nonabused subjects.

“Factors in the cycle of violence: gender rigidity and emotional constriction,” Journal of Traumatic Stress. 9(4):721-43, 1996.

A sample of 595 men were administered self-report assessments of childhood sexual and physical abuse, perpetration history, gender rigidity and emotional constriction. Including noncontact forms of sexual abuse, 11% of the men reported sexual abuse alone, 17% reported physical abuse alone, and 17% reported both sexual and physical abuse. Of the 257 men in the sample who reported some form of childhood abuse, 38% reported some form of perpetration themselves, either sexual or physical; of the 126 perpetrators, 70% reported having been abused in childhood. Thus, most perpetrators were abused, but most abused men did not perpetrate. Both sexually and physically abused men who perpetrated manifested significantly more gender rigidity and emotional constriction than abused nonperpetrators. Men who reported abuse but not perpetration demonstrated significantly less gender rigidity, less homophobia and less emotional constriction than nonabused men.

"Repeat rape and multiple offending among undetected rapists,” Violence & Victims. 17(1):73-84, 2002.

Pooling data from four samples in which 1,882 men were assessed for acts of interpersonal violence, we report on 120 men whose self-reported acts met legal definitions of rape or attempted rape, but who were never prosecuted by criminal justice authorities. A majority of these undetected rapists were repeat rapists, and a majority also committed other acts of interpersonal violence. The repeat rapists averaged 5.8 rapes each. The 120 rapists were responsible for 1,225 separate acts of interpersonal violence, including rape, battery, and child physical and sexual abuse. These findings mirror those from studies of incarcerated sex offenders (Abel, Becker, Mittelman, Cunningham-Rathner, Rouleau, & Murphy, 1987; Weinrott and Saylor, 1991), indicating high rates of both repeat rape and multiple types of offending. Implications for the investigation and prosecution of this so-called “hidden” rape are discussed.

It is possible, of course, that somewhere, at some point in his career, Lisak made an extraneous reference suggesting that entities filled by people with higher IQs are more likely to feature rapists. But there’s nothing in his available articles, or in his published synopses, to reflect this fact; and, in any case, this line of thought is clearly not a major element of Lisak’s research.

I have no opinion, one way or the other, on the quality of Lisak’s research. But why did Ada Gregory reference him and only him to substantiate her claim that Duke, because it has intelligent students, has a higher percentage of rapists than the general population, when his research offers no significant basis for making such a claim?

One final point on Lisak’s research. Much of campus anti-rape activism has focused on the dangers of “date rape,” and the dangers in particular of alcohol both inhibiting actions and leading one partner to believe that the other has given consent, when in fact no consent was given. Indeed, this sense of the danger of “date rape” helps explain many components of Duke’s current sexual assault policy—namely the requirement that consent must be given (and, presumably, documented) at each stage of the intercourse process; or the Orwellian claim that “real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” [emphases added]

Yet in his research, Lisak challenges this traditional view of “date rape.” He contends that the typical campus “undetected rapist” is not a “Nice Guy” who “drank too much,” and raped as a result of “unpremeditated” “miscommunication,” so that it “won’t happen again,” but instead someone who “plans & premeditates his attacks,” “uses multiple strategies to make [his] victim vulnerable,” and “uses alcohol deliberately.”

If true, of course, the problem of campus date rape isn’t primarily one of a male student mistakenly believing consent was given, and a female student denying consent. Instead, it’s a problem of a female being victimized by a serial sexual predator whose behavior wouldn’t be altered no matter how many freshmen orientation skits by the Women’s Center he happened to attend. Such a view of campus rape, of course, requires less ideological crusading by politically correct administrators and more interaction between the campus and local law enforcement. Lisak does recommend such interaction. But his research does nothing to help bolster Duke’s new policy.

Again, I have no opinion, one way or the other, on the quality of Lisak’s research. But, given his findings, it is troubling—to put it mildly—to see Ms. Gregory cite Lisak and only Lisak as part of her recommendation that Duke’s new, guilt-presuming sexual assault policy should form a model for other colleges and universities.

On Gregory and Lisak

Duke Women’s Center director Ada Gregory came under justifiable criticism for her preposterous recent assertion to 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.” Gregory subsequently claimed that she had been quoted out of context, though it’s hard to imagine what an appropriate context for her remark could have been.

In the event, as I noted last week, she essentially repeated her claim in her damage-control letter to the Chronicle, writing, “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]

Gregory—like the “clarifying” faculty at Duke, who made a similar, if slightly vaguer, claim—doubtless has ideological reasons for wanting to believe that sexual assault is more common at elite university campuses than in the general public. Yet a preliminary glance through some of Lisak’s writings didn’t offer any illumination concerning the alleged link between communities of intelligent people and higher incidences of sexual assault. While there certainly are elements of campus life an elite universities—notably the extensive presence of alcohol—that would increase the risk of sexual assault (and which Lisak discusses), that, of course, was not the argument that Gregory made.

I e-mailed Gregory to ask her for a specific citation of Lisak’s work that bolstered her assertion that “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.” She did not reply. So I e-mailed her again. Again, she did not reply.

So I read some more of Lisak’s publications. (I should note: I haven’t read everything that Lisak has published: CUNY doesn’t have a medical school, and some of his work comes in technical journals to which CUNY doesn’t subscribe.) Nonetheless, I haven’t been able to track down any of his writings that suggest a link between communities of smart people and higher incidents of sexual assault. At times—as in a 2005 talk—some of the themes for the “undetected rapist” that Lisak has identified would suggest that such criminals would be less common at places like Duke, simply because of practical matters. Two examples:

1.) Lisak has contended that predators are “often violent in multiple ways—(e.g., both sexual and domestic).” Yet at Duke, as at most elite university campuses, the overwhelming majority of students live in dorms or dorm-like arrangements. While it’s possible that openings exist for domestic violence, such episodes are surely far less frequent than in the general public at large, simply because most Duke students would not regularly find themselves in a position in which domestic violence occurs.

2.) Lisak’s research also suggests that nearly one in five of his undetected rapists have abused children. Obviously, college and university students do not have access to children on campus; at home, how many 18 to 22-year-old students at any elite university even are put in a position to sexually abuse children? While it’s possible that openings exist for child abuse, such episodes are surely far less frequent than in the general public at large, simply because most Duke students would not regularly find themselves in a position in which child abuse occurs.

Yet Lisak—the sole researcher that Gregory cited to bolster her claim of a linkage between bright people on campus and higher incidents of sexual assault—has contended that connections exist between child abuse, domestic violence, and sexual assault. Given that students at elite universities would seem to have been less likely to have engaged in either child abuse or domestic violence, wouldn’t it stand to reason that Lisak’s research suggests that sexual violence is less common on college campuses than in the general public?

Lisak, it’s worth noting, is hardly someone known for his temperate views on sexual assault: indeed, he is a true believer on the issue. He has contended that one in four women will be raped over the course of their lives: while not quite as extreme a view as some Group sympathizers (who have suggested that one in four women at Duke will be raped, giving the university a rate of sexual assault exceeds that of Detroit’s violent crime rate), the Lisak theory would maintain that just under 40 million women currently residing in the United States have been raped. Lisak also has endorsed the arch-feminist view that pornography (of any type) “normalizes” violence against women.

It doesn’t seem unrealistic to expect the director of a women’s center—however much she might be an ideologue regarding gender issues on campus—to accurately represent the relevant research in her field. Duke, it appears, has a different standard.

Updates

I’ll have a more substantive post up Wednesday; for today, however, a few loose ends:

[Update, 12.29pm Tuesday: An excellent post, using material gleaned from the recent civil case filings, from sceptical at Liestoppers regarding the pernicious role in the case played by former SANE nurse-in-training Tara Levicy. The post is well worth reading in its entirety.]

1.) For those interested, I have an article at Minding the Campus looking at the transformation of the American Association of University Professors (AAUP) from an organization committed to upholding academic freedom into a group whose leadership is obsessed with protecting the majority viewpoint in the contemporary academy.

2.) As has been widely noted, an appeals court ruled that Mike Pressler’s suit against Duke could go forward, though the ruling was on procedural grounds and doesn’t indicate much one way or the other regarding the substance of the case.

3.) The lacrosse case helped to illustrate the unintended, and largely negative, consequences on college campuses of denying people who can vote and serve in the military the right to consume alcohol. The problem, of course, isn’t just as Duke—as this depressing tale from Haverford reveals.

4.) A chilling article from the New Yorker, on how Texas almost certainly put to death an innocent man.

Simply Extraordinary

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.

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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.

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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.

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“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.

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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.

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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.

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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.