Analyzing the Sexual Misconduct Policy
Ever had sexual relations with an underclassman, or someone who is your subordinate in a Duke Club hierarchy? Under the university’s new sexual misconduct policy, you are likely guilty of sexual misconduct.
The university’s new policy, adopted in summer 2009, destroys the importance of context clues and nonsensically broadens Duke’s adjudication of sexual harassment to indict students who are clearly innocent of any sexual misconduct1. As such, the policy is both antithetical to the proper enforcement of sexual misconduct on campus, as well as lethally dangerous for students.
On March 4, 2010, the Foundation for Individual Rights in Education wrote a concerned email to President Brodhead discussing the university’s policy2. The letter highlights three (among other) especially ambiguous textual areas of the policy which, FIRE argues, make Duke’s new policy inconsistent with the North Carolina statute on sexual misconduct.
The first problem centers around the clause, “[r]eal or perceived power differentials between individuals may create an unintentional atmosphere of coercion.3” Are the sexual partners of Duke Basketball players or seniors automatically incapable of consenting if they are underclassmen girls, as FIRE intimates4?
It seems like this clause’s elasticity destroys the importance of context; power differentials must only vaguely be “perceived” and/or “unintentional” to qualify as power differentials with implications for the possibility of consensual or “coercive” sex5. So everything from public sex to sex in private in both committed and casual relationships might qualify as coercive sex regardless of the expressed consent of both partners at the time. Perhaps Duke students are the “cream of the crop” because we have been legally interpellated as such6.
The second troublesome issue is the policy’s definition of conduct as being categorically “without consent” whenever an individual is intoxicated or “high.7” In other words, “in some situations an individual’s ability to freely consent is taken away by another person or circumstance.8” Again, the clause’s elasticity obscures the importance of context. As FIRE points out, parties are an inevitable reality on a college campus, and this new policy treats casual drinkers and “wasted” people identically.9
As a result, it uses the forest to hide the trees, as the cliché goes; the policy conceals the real acts of sexual misconduct at Duke by legally defining many consensual acts as coercive sex. For the welfare of the students, shouldn’t our policy differentiate between the consenting capacity of someone who has had one drink at a party and someone who has just downed a fifth?
The third particularly frightening issue covered in FIRE’s letter concerns the rights of the accused under the new sexual misconduct policy. “Due process” for students accused of sexual misconduct is constituted by a completely disparate set of criteria from any other area of UCB policy.10 While the normal UCB jury consists of a 3:2 student: faculty ratio, the ratio is reversed in sexual misconduct cases.11
Additionally, students involved in typical misconduct accusations are permitted an advisor who may advocate on their behalf; in sexual misconduct cases, the advisor may not speak at the tribunal. The normal rights of the accused are foregone under the new sexual misconduct policy, implying that the accused in these cases are presumed to be guilty in a way which is not applied to other potential offenders.
Overall, the new policy is surrounded by an atmosphere of “guilty until proven innocent.” Students accused of sexual misconduct are treated differently from other students at every ideological level, regardless of the policy’s claim that “[s]tudents accused of sexual misconduct have the same rights as any student accused of a policy violation.12”
Duke students adhere to a strict community standard with minimal infractions each school year, and should be treated with the respect of a consistent sense of due process, even those accused of sexual misconduct. Furthermore, Duke students who are involved with “perceived” powerful groups on campus seem especially and arbitrarily singled out by the policy.13 The very serious issue of sexual harassment is trivialized if students are implicated for coercive sex simply for being upperclassmen or varsity athletes.
References
1 Duke Sexual Misconduct Policy. http://www.studentaffairs.duke.edu/conduct/resources/sexualmisconduct
2 “FIRE Letter to Duke University President Richard Brodhead.” March 26 2010. http://www.thefire.org/article/11692.html
3 Duke Sexual Misconduct Policy, ibid.
4 Ibid.
5 Ibid.
6 Quote appeared in a letter-to-the-editor of Duke’s The Chronicle. First cited by Rupp, Lindsay. “Rape Policy Mandates Reporting.” The Chronicle. August 28, 2009. http://dukechronicle.com/node/149519
7 Duke Sexual Misconduct Policy, ibid.
8 Ibid.
9 “FIRE Letter to Duke University President Richard Brodhead.” Ibid.
10 Undergraduate Conduct Board. http://www.studentaffairs.duke.edu/conduct/programs-services/ucbinfo
11 “Fire Letter to Duke University President Richard Brodhead.” Ibid.
12 Duke Sexual Misconduct Policy, ibid.
13 Ibid.
great post as usual!
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