New Duke Policy Renders Students Unwitting Rapists

I didn't want to write that headline.

Not because it isn't true—it is—but because FIRE works very hard not to overstate our cases.  But the closer you look at this case, the more you realize that there's no way around that headline. At Duke University, you can be a rapist and not even know it. To write anything less harsh would be, as journalists say, to "bury the lede."

Today's FIRE press release discusses Duke's sexual misconduct policy, which was instituted at the beginning of the current school year. KC Johnson, rightly lauded for his blog Durham in Wonderland and his book Until Proven Innocent (with Stuart Taylor Jr.), which are the definitive resources on the Duke lacrosse rape-hoax case, drew early attention to the problem back in September of last year, which prompted FIRE to investigate the policy in detail. The more we investigated, the worse it looked. On March 4, we finally wrote President Richard Brodhead a long and detailed letter about the problems in the policy. Duke never responded in writing. (I did receive a phone call, but the Duke lawyer who called made no substantive statements, presumably following someone else's instructions.)

This is unfortunate, as Duke has a lot of explaining to do. This policy reads as if it were written by a bunch of academics who have no understanding of how their proposals would actually work on a real campus with real students. There's nothing wrong with redefining terms per se, except that it doesn't look like Duke actually consulted even one lawyer (or even a decent law student) about the ramifications of the policy the school has now instituted.

Actually, that's the charitable interpretation. The uncharitable interpretation is that Duke knew exactly what it was doing when it crafted a policy under which you need only point a stick in a random direction to find someone who is guilty of "sexual misconduct" on campus. Since this possibility is almost too unpleasant for an old Dukie like me to contemplate, let me now get down to details and concentrate on how "careless" the authors of this policy must have been.

First of all is the shocking vagueness and overbreadth of Duke's definition of consent. The fourth "fundamental principle" under which the policy was formed is that "Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion." (Emphasis added.) When it comes to real power differentials—i.e., those created by clearly defined hierarchical relationships, such as employer-employee, or teacher-student—that's undoubtedly true. If your boss is propositioning you sexually, maybe you don't feel that you can say "no" without negative consequences.

However, how do you measure a "perceived" power differential? How does one create an "unintentional atmosphere" of coercion by flaunting one's "perceived power"? What does this mean in the context of students? Does it mean that the more popular students, or older students, or athletes, or those with student government power, are inherently under suspicion when they engage in sexual activity? Who knows?

And that's the problem: this principle could mean anything in application. Many people perceive there to be a fundamental power differential between all men and women. What about better-looking and worse-looking people? Thin people and fat people? White people and black people? There can undoubtedly be perceived power differentials in all of these situations. At what point does this create an "unintentional atmosphere of coercion?" Duke doesn't say, and for good reason—there's no way to judge, leaving students confused about consent, afraid to engage in truly consensual activity, and easily subject to false claims against them. The sheer elasticity here is shocking, particularly when you realize the potential consequences for students' lives.

The section dealing with intoxication is nearly as bad. Everyone knows that drinking can lead to poor judgment. Yet if you choose to, for instance, drive while drunk, you are still held responsible for that action. If you gamble while drunk, you still have to pay your debts. Obviously, things are more complicated (as they almost always are) when it comes to sex, but you don't have to look far to find people who did something sexual with another person while drunk that they regret when they sober up. It's one thing to take advantage of someone who is insensibly intoxicated—so drunk or high that they are incapable of making their own decisions. That's a crime, and it's universally acknowledged to be a grave moral wrong. But to extend that culpability to college students who have had three beers in an hour and then go on to do something they later wish they hadn't, is hugely unjust.

Our letter explains more about how this irrational rule betrays both common sense and North Carolina law. Here's a pertinent excerpt:

North Carolina's own cases and statutes dealing with nonconsensual sexual relations are instructive. Unlike Duke's policy, they take into account both the degree of intoxication and whose decision it was to become intoxicated. The North Carolina Court of Appeals has found that North Carolina's law on rape "does not serve to negate the consent of a person who voluntarily and as a result of her own actions becomes intoxicated to a level short of unconsciousness or physical helplessness as defined by N.C. Gen. Stat. § 14-27.1(3) (2005)." State v. Haddock, 664 S.E.2d 339, 346 (N.C. Ct. App. 2008). Contrastingly, Duke's sexual misconduct policy deems sexual conduct nonconsensual simply when at least one party is at any level of intoxication, regardless of degree and of the choices of the parties involved. Duke thus turns consensual sexual conduct into punishable misconduct, turning normal students into criminals and obfuscating the meaning of true sexual offenses such as rape.

There's no way to hide from students the fact that the vast majority of sexual situations involving "power differentials" or intoxication will never go in front of a misconduct panel.  After all, if they were consistently punished, the hue and cry would be deafening and nobody would recognize such rules as legitimate. I am going to go out on a limb here and say that Duke knows very well that it can never enforce its rules as written. Instead, they will be enforced only when one party complains, or, since Duke has mandated third-party reporting, when someone else complains on an alleged victim's behalf. Meanwhile, 99.9% of those who engage in Duke-defined "sexual misconduct" will get off scot-free, including married couples who drink and then go off to the bedroom. This unequal treatment makes a mockery of the policy. 

So why have such rules? There are two possibilities, and again, I will present a charitable and an uncharitable interpretation. The charitable interpretation, which I suspect is correct, is that those who instituted the policy felt that it was better to make as much behavior punishable as possible, giving Duke full discretion to take advantage of the vast sweep of the rules so that it can make sure that truly bad actors don't get off on some kind of technicality. This interpretation is supported by the fact that Duke has mandated its employees to report sexual misconduct regardless of the wishes of the victim—it seems clear that Duke really, really does not want anyone to get away with date rape, especially cunning Duke students who one administrator has called masters of manipulation. If Duke has to run roughshod over things like "justice" and "equality" to catch them all, so be it. 

This is the attitude that Durham County prosecutor Mike Nifong took during the Duke lacrosse scandal—he was willing to overlook any problems in the timeline and evidence of innocence, even to the extent of covering up DNA evidence, in order to make sure someone paid for the "crime"—and we all saw how that turned out. In this, he was shamefully supported by 88 of Duke's faculty members. And it seems that even though Nifong and Duke were thoroughly humiliated (and are still facing the fallout) because of their actions, Duke still figures that presuming guilt will on average catch enough of the guilty to make up for sometimes snaring the innocent. While this does not comport with our American conception of justice, it might be justifiable from a purely utilitarian perspective.

The uncharitable interpretation (which I hope is wrong) is that the overbreadth of this policy isn't a bug—it's the main feature, intended to redefine "consent" in such a way as to give women, who are more often victims of date rape than men, leverage to take back power from men who they perceive to be in control of a perceived patriarchal society. This seems to be the attitude underlying the principle that "real or perceived power differentials between individuals may create an unintentional atmosphere of coercion." There is a legitimate academic argument to be made for such a statement. But codifying it as part of a university sexual misconduct code is a recipe for a Kafkaesque nightmare of epic proportions for those who are falsely or unjustly accused.

We will be writing more on these issues here on The Torch in the coming days and weeks.