Duke University and the Accidental Sex Offender

>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."  

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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