Posted on 04/07/2010 12:13:32 PM PDT by abb
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.
“Well hell the good people at Duke certainly know about Rape”
Actually, the faculty and administration at Duke really experts about non-rape. When you think about it, the rules are quite hilarious.
Yes, only the best and brightest populate the sacred halls of our “elite” universities...
Duke has football?
I read the policy and it doesn’t seem too bad.
http://www.thefire.org/index.php/article/11723.html
The part about “real or perceived differentials in power may create an atmosphere of unintentional coercion” is not part of the definition of sexual misconduct, but rather part of the statement of principles.
Also, I would think this would refer to teacher/student, coach/athlete or other such relationships, where one party has power over the other intimidation might be used to get “consent”, not to the ridiculous NCAA basketball champion scenario, put forth in the article. No reaasonable person would conclude that a star athlete has the power to compel every woman on campus to have sex with him.
At any rate Duke is a private university and can make its own rules. Nobody has a “right” to attend Duke or any other private school. If Duke wanted to ban all sexual activity on campus, it would have every right to do so.
It would serve the Duke women right to be totally shut off by Duke guys, no more dates, totally shunned by guys in private and public settings, no women as lab partners or study groups with guys, not even a “hi” from any Duke guys whether in classes, in a student union, or out at a bar, dance, or party.
The guys should get theirs from non-Duke women and off campus.
Considering that these folks are the same ones who say that racism is NOT a two way street because blacks don’t have “power,” it probably means that only whites will be ensnared in this faux-rape trap.
Does this same rule apply to Duke professors who pimp out and rape their adopted sons?
So under this policy, if two college kids get drunk and scr**, and one of them weighs 180 lbs while the other is 140, the “more powerful” one can now be a rapist by dint of the “power.” Even though they were both stinking drunk and, at the time, consenting.
Cloud cuckoo-land.
Probably looks like Helen Thomas or Masters critic Martha Burk (please, no photos).
But even NOW defended Bill Clinton's sexual exploitation of a young college co-ed working at the White House.
I love it. Like Lysistrata with a gender reversal.
Parents! Are you really sure you want to pay through the nose for that college diploma?
I was on the Duke Campus Saturday. Prominent all over are Daglo green emergency call boxes. The folks at Duke are very much afraid of something or somebody.
The irony of all the call boxes is that they are good for reporting a rape, but do nothing to stop it.
Duke with call boxes is like Obama with hugs and kisses to the enemies. Neither accomplish the purpose. Both probab bly are top attract money
No; it must follow state, federal, and Constitutional law just like the rest of us. For example, Duke cannot make rules that place unreasonable restrictions on speech, personal associations, etc.
I have a feeling that it will only be male, heterosexual students, who will be at any risk. If I were a young guy on that campus, I would stay celebrate while there. Don't mess with any of the co-eds under any circumstances. Save it for when you go home on vacation and look up the old high school sweethearts.
“The guys should get theirs from non-Duke women ...”
They already do - at UNC, 12 miles south on US 15/501.
Wow. You might want to familiarize yourself with the outrageous and illegal behavior of Duke faculty and staff during the whole Duke Lax case. Perhaps then you might recognize that a) they (the powers that be at Duke) still do not understand the meaning of innocent, b) they are still convinced that a rape did occur, and c) they repeatedly failed to follow their own guidelines set forth in the Student Handbook to protect the falsely accused students. So what exactly makes you think that this power differential they speak of will NOT apply to those who are perceived to hold power, even if they aren’t in “official” positions of power? They certainly perceived the falsely accused Duke Lax players as powerful. After all, power, money, whiteness, and elitism were the overriding themes in the reactions of many Duke faculty and staff. Why would it be any different now?
The funny thing is that they cite the higher IQ of Duke male students as enabling them to be better sexual predators without considering that the women should also have higher IQ themselves and thus be better able to deal with them. They are so intent upon depicting women as victims that they literally insult their intelligence.
There should be heterosexual guys in next year’s freshman class at Duke (and for years thereafter). After several years, there would be no heterosexual guys left at Duke.
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