Duke University and the Accidental Sex Offender

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>Celibacy is probably not a feasible option for most undergraduates, but students at Duke University may want to consider it anyway.  Duke's new rules governing sexual misconduct and coercion are so vague, subjective, presumptive of guilt, and oblivious to the dynamics of consensual sexual relations that they pose a risk of prosecution even for students engaging in innocent foreplay.  Sexual misconduct at Duke includes "inappropriate (or non-consensual) touching," as well as rape; "inappropriate touching" and "acts of a sexual nature" that require clear consent include ("but are not limited to") touching and "attempted touching" of an "unwilling person's" erogenous zones, "either directly or indirectly."  
 
I don't know what constitutes a non-consensual, indirect, attempted touch, but I wouldn't try it at Duke, where actionable "coercion" may be unintentional and merely inferred, or imagined, by a self-proclaimed victim: "Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion."  This suggests that students risk inadvertently committing sexual offenses if they engage in sex with classmates perceived as physically or psychologically weaker, less intelligent, or simply less popular.  How might presumptively powerful students avoid unintentionally exploiting this "unintentional atmosphere of coercion?"  The university explicitly "mandates that each participant obtains and gives consent in each instance of sexual activity."
   
A committee of virginal bureaucrats would be hard pressed to draft a more ridiculous policy than this: "Consent is an affirmative decision to engage in mutually acceptable sexual activity given by clear actions and words," the policy explains.  But, students are warned, "(R)elying solely on upon non-verbal communication can lead to miscommunication," which can lead to expulsion, suspension or other disciplinary actions.  A well-meaning student may be charged with a sex offense for making an innocent, incorrect assumption:  so, "(i)t is important not to make assumptions," the Duke policy advises.  "(I)f confusion or ambiguity on the issue of consent arises anytime during the sexual interaction, it is essential that each participant stops and clarifies, verbally, willingness to continue."
   
Anyone who remembers or has read about the sexual correctness controversies of the early 1990s will recognize Duke's giant step back to the future.  In 1992, now defunct Antioch College promulgated a absurd and widely ridiculed "Sexual Offenses Policy" that required students to stop and ask explicit verbal permission to proceed to "each new level of sexual activity ... The person(s) who initiate(s) the sexual activity is responsible for asking for consent ... Body movements and non-verbal responses such as moans are not consent."  The Daily Show was born too late for Antioch, but not for Duke.

Still students prosecuted pursuant to this policy are unlikely to find much humor in it.  University officials are required to report all allegations of sexual misconduct, (unless legally bound by professional, confidentiality requirements) and the solicitude for "survivors of sexual misconduct" expressed in the policy is not matched by respect for the due process rights of students accused.  They have no right to confront directly witnesses against them: their questions must be vetted and posed by the hearing panel, comprising two faculty or staff members and one student.  They have no right to a public hearing, and if they are wrongly accused and exonerated, they appear to have limited rights to publicize and explain their exoneration: "Any information shared during a hearing is confidential."

Accused students are afforded a presumption of innocence, at least rhetorically, but the bias against them is clear: "Complainants are to be treated with respect and sensitivity before, during, and after the disciplinary process."  Accused students "will be treated with respect throughout the process."  If students were, in fact, presumed innocent (in other words wrongly or mistakenly accused) they'd surely be deemed worthy of "sensitive" treatment too.

Duke's insensitivity to due process for students accused of sexual offenses is especially shameful, given the university's complicity in the wrongful and malicious 2006 indictment of three lacrosse players (and public vilification of the team) for a rape that never occurred.  (Stuart Taylor and K.C. Johnson expertly chronicled this notorious case in Until Proven Innocent.)  The case cost Duke money as well as prestige (it entered into a settlement with the three wrongly accused students), but university officials seem to regard this travesty as a mere public relations problem they have managed to solve.  A euphemistic, self-congratulatory account of the case ("the event") posted by the Duke press office stresses that "(a)pproximately one year after the event, Duke's fund raising hit record levels, applications for student admissions remained near record levels, new media guidelines were in place to enhance the privacy of students and campus life began to return to normal."  

But this promised return to normal, intended to reassure the Duke community, should have served as a warning instead.  Campus norms contributed to the wrongful felony indictments of its students.  Campus norms still seem to preclude the rational and just treatment of alleged sexual offenses, vaguely and broadly defined.    

Underlying these norms is an irrational, sanctimonious, anti-libertarian feminism that reflects the misanthropy promoted in the late 1980s by Catherine MacKinnon, the late Andrea Dworkin, and other fervent anti-porn activists who effectively equated actual and metaphoric violence and blurred the distinctions between heterosexual relations and rape.  Of course, many feminists opposed the anti-porn movement and remained committed to civil liberty as well as equality for women, but feminism's reputation suffered greatly by its association with censorship and the "victimism" that followed from absurdly broad notions of abuse and sexual misconduct. (As I've previously observed in books and articles, the feminist crusade against pornography coincided with multi-culturalism, and popular therapeutic notions of dysfunction and abuse in the early 1990s and engendered the repressive speech and harassment codes that flourish on so many campuses today.)  

So, it's not surprising that the Duke Women's Center introduced the university's sexual misconduct policy.  It protects female and male "survivors" of misconduct, in gay or heterosexual relationships, but its ideology reflects regressive feminist orthodoxies that should have been discredited and discarded long ago.  It's not hard to understand why many college women who value individual liberty tend to disdain feminism.  They're often unaware of how much they have benefited from the rights and opportunities won by second wave feminism that flourished before they were born; but they're exposed regularly to the dangerous excesses and idiocies of the feminist dogmas that help shape Duke's sexual misconduct policy.

The Foundation for Individual Rights in Education (FIRE) is challenging Duke's policy (you can find the policy and FIRE's critique of it here).   But I suspect that university administrators will only respond to complaints by alumni and other donors.  Duke seems unrepentant about collaborating in the persecution of its lacrosse players and apparently takes pride in its sexual misconduct policy.  It's supposed to reflect university values -- "honesty, fairness, respect, and accountability" -- in the interests of promoting "healthy interpersonal relationships."  The policy states that "Duke University is committed to providing an environment free of personal affronts against individuals... "  

That is a dystopian goal, especially at a university.  Intellectual debate cannot thrive, individual liberty cannot survive, and "healthy sexual relationships" cannot develop in a university that seeks to eradicate "personal affronts."  Besides, I doubt Duke's commitment to protecting all members of its community from "affronts."  I bet there are students, faculty members, and alums who are deeply affronted by the sexual misconduct policy.  I hope all of them protest it vigorously and some vote against it with their pocketbooks; or, resisting the lessons of its own recent history, Duke may continue to take pride in repeating it.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional, and a past recipient of a Guggenheim Fellowship. More

Wendy Kaminer is a lawyer and social critic who has been a contributing editor of The Atlantic since 1991. She writes about law, liberty, feminism, religion and popular culture and has written eight books, including Worst InstinctsFree for All; Sleeping with Extra-Terrestrials; and I'm Dysfunctional, You're Dysfunctional. Kaminer worked as a staff attorney in the New York Legal Aid Society and in the New York City Mayor's Office and was awarded a Guggenheim Fellowship in 1993. She is a renowned contrarian who has tackled the issues of censorship and pornography, feminism, pop psychology, gender roles and identities, crime and the criminal-justice system, and gun control. Her articles and reviews have appeared in The Atlantic, The New York Times, The Wall Street Journal, Newsweek, The American Prospect, Dissent, The Nation, The Wilson Quarterly, Free Inquiry, and spiked-online.com. Her commentaries have aired on National Public Radio. She serves on the board of the Bill of Rights Defense Committee, the advisory boards of the Foundation for Individual Rights in Education and the Secular Coalition for America, and is a member of the Massachusetts State Advisory Committee to the U.S. Civil Rights Commission.

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