Tuesday, September 1, 2009

Incredible: Duke University has just increased the likelihood of false rape claims

Yep, you read that headline right. Duke University, apparently, has learned nothing. Prof. KC Johnson's landmark blog, Durham in Wonderland, chronicles how Duke has just instituted a policy for handling rape claims that is not only manifestly unfair to the accused, but actually increases the likelihood of false rape claims -- excerpt from his blog post is found beneath this comment. In light of Duke's new policy, Clarice Feldman urges "Mothers Don't Let Your Sons Grow Up To Be Blue Devils." She writes: "At this point when even the opprobrium it received and the reportedly large sums of money the university was forced to pay out to settle claims against it for its conduct in the lynching of its own students isn't enough to get the university to weigh fair play [above] political correctness, it's time for male students to abandon the institution and alumni to withhold their contributions. Repeated violations of male students' right to due process merits such responses."

The fact is, and I know this from my personal experience practicing law, American universities have become inhospitable to male students. Putting aside Women's Studies courses, and Women's Center, if your son is accused of sexual misconduct -- no matter how false the charge -- he will be put through the terror of what attorney Barbara Johnson calls a "Kangaroo Court."

Duke, of all places, should know better. When will the Duke alumni wake up and realize the Lacrosse case wasn't an aberration? The Lacrosse case was a manifestation of how Duke does business, and it's not male-friendly.

Here are excerpts from Prof. Johnson's blog post:

Simply Extraordinary

In addition to sexual assault, Duke defines sexual misconduct as “as any physical act of a sexual nature perpetrated against an individual without consent or when an individual is unable to freely give consent,” including “sexual exploitation, defined as taking nonconsensual, unjust sexual advantage of another for one’s benefit or the benefit of another party . . . The university’s definition of sexual misconduct mandates that each participant obtains and gives consent in each instance of sexual activity. Consent is an affirmative decision to engage in mutually acceptable sexual activity given by clear actions or words . . . consent to one form of sexual activity does not imply consent to other forms of sexual activity . . . Conduct will be considered ‘without consent’ if no clear consent, verbal or nonverbal, is given.”

Duke’s policy does not explain what constitutes “nonverbal” consent, nor does it guide students who participate in sexual activity how they need to record their consent (verbal or nonverbal) to defend themselves against future false charges.

As reflected in [Women's Center Director Ada] Gregory’s comments, the policy is concerned with the possibility of sexual misconduct through coercion. A “fundamental principle” of the sexual misconduct policy is the following: “Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.” [emphases added] How, precisely, should a Duke student be held liable for “perceived” power differentials creating an “unintentional” atmosphere of coercion? Duke’s policy does not explain.

The accused student does not have a right to an attorney. Instead, he can select a “member of the university community” to serve as an advisor. That advisor can attend the disciplinary hearing, but cannot ask any questions, nor even speak (except to the accused student).

The accused student does not have a right to confront his accuser. Instead, he has only the right to ask questions “directed through the hearing panel,” with the panel retaining sole discretion as to whether or not to present the witness with the question. And, of course, such a cumbersome process vitiates any right of effective cross-examination.
. . . .
The accuser in a sexual misconduct case, moreover, receives three rights denied to the accused student. Each of these special rights tilts the process in the accuser’s favor.

First, Duke guidelines state that the sexual misconduct accuser “will be treated with respect and sensitivity [emphasis added] before, during, and after the disciplinary process.” The accused student, on the other hand, only must “be treated with respect throughout the process.”
How is a promise to treat the accuser but not the accused with “sensitivity” consistent with the “presumption of innocence” for the accused? Duke doesn’t say.

Second, Duke guidelines state that sexual misconduct “complainants will be given the opportunity to make opening and closing statements to a hearing panel.” The accused student, on the other hand, is promised no such opportunity.

How is giving a right to make opening and closing statements only to the accuser consistent with the “presumption of innocence” for the accused? Duke doesn’t say.

Third, Duke guidelines state that sexual misconduct “complainants have the right to receive—within the parameters of FERPA—a copy of the written information given to a hearing panel.” The accused student, on the other hand, is promised no such right. This is particularly ominous given Duke’s new ability to hire an outside investigator to look into sexual misconduct allegations. Yet while the accused student has no right to receive any of the “written information” that the investigator produces (what in a criminal case would essentially be the discovery file), his accuser can get all of the documents, except for those covered by FERPA.

How is giving a right to receive written material only to the accuser consistent with the “presumption of innocence” for the accused? Duke doesn’t say.
. . . .
In her interview with the Chronicle, [Ada] Gregory [Director of Duke's Women's Center] conceded that even Duke administrators—who, as we all have come to know, are not terribly sensitive to the possibilities of fraudulent rape claims—expressed fears that the new policy (coupled, of course, with a judicial process whose procedures overwhelmingly favor the accuser) would result in an increased filing of false claims of sexual misconduct.

Gregory had no such concerns: “We’re creating an environment that says, ‘This is not tolerated in our community,’ and when you create that environment, victims are more likely to come forward and seek help.” How creating an environment that says sexual assault isn’t tolerated (as if any elite university currently has a campus environment that “tolerates” sexual assault) guards against the filing of false sexual assault claims Gregory didn’t say.

Instead, Gregory sees the new Duke policy as an example for other universities to follow. That’s even though the one researcher she cited, David Lisak, has argued against the very type of procedure Duke has now set up. Last year, he wrote, “The less benign reality of sexual violence in the university setting also carries implications for university judicial processes. A judicial board would hardly seem the appropriate venue to deal with a sexual predator. Further, cases of non-stranger rape are extremely difficult to properly investigate and prosecute – they are in fact far more complex than the majority of stranger rapes. A proper investigation requires skilled and specially-trained investigators working closely with specially-trained prosecutors.”

In short, according to Lisak, Duke’s new “ad hoc” investigatory policy is exactly what universities should not be doing.
You might think that a university that witnessed the highest-profile rape hoax in modern American history would go out of its way to protect its students from future such hoaxes. At the very least, you might think that such a university wouldn’t design a procedure—motivated by many of the same politically correct impulses that fueled the rush to judgment in 2006—that even its own administrators worried could produce more false sexual misconduct claims.

Duke, instead, has gone in the opposite direction, adopting a policy that Women’s Center Director Gregory concedes is far more extreme than that at most universities in the country. Simply extraordinary.