Contrary to the intentions of the people behind the policy, it actually may make it less likely that students accused of sexual assault will be found responsible for sexual offenses. That doesn't stop the get-tough-on-rape crowd.
". . . [S]tricter sanctions are a critical aspect of gender-violence prevention,” said Duke’s student government president Stefani Jones, who pushed for the stiffer sanction. Today in an article in the Duke Chronicle, Jones discussed her understanding of how the new standard is to be applied: "The understanding is that the new standard is going to always be expulsion for sexual assault," said Jones, "and we don't expect anything other than that."
It goes without saying that a strict application of the new Duke policy could impose a terrible injustice on innocent men wrongly accused of sex offenses. Must Duke, of all places, be reminded of the destruction of a false rape claim? In light of the mandate of Department of Education's April 2011 "Dear Colleague" letter lowering the standard of proof to find students responsible for sex offenses to a mere preponderance of the evidence, if the Duke lacrosse case happened today, the falsely accused men likely would be found responsible for rape. See, e.g., D. Subotnik, The Duke Rape Case Five Years Later: Lessons for the Academy, the Media, and the Criminal Justice System 45 Akron L. Rev 883, 919-20 (2012).
That means that, under Ms. Jones' reading of the new policy, the wrongly accused lacrosse players would have to be expelled. (If Stefani Jones is not familiar with the terrible injustices of the lacrosse case -- and it is unfathomable that a Duke Student Government President would not be familiar with the lessons of that atrocity -- she would do well to spend a few weeks reading through the landmark blog devoted to it, Durham-in-Wonderland.)
Cornell's Prof. Cynthia Bowman cautioned about the terrible price the innocent pay when they are wrongly expelled: “The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma. To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.”
Does any of this matter to Stefani Jones?
Beyond that, ironically, the new Duke policy does no favors for rape victims. According to the Duke Chronicle article: "Sue Wasiolek, assistant vice president for student affairs and dean of students, said she was concerned that the guideline change could deter victims from reporting an attack."
But it goes beyond that. Where schools mandate extreme punishments for sexual assault, triers of fact are often less likely to find guilt in doubtful cases because they know the consequences for the accused are extreme. In A Separate Crime of Reckless Sex, 72 U. Chi. L. Rev. 599, 655-56 (2005), Professors I. Ayres and K. Baker explained:
. . . if the . . . sanction is too strong, there is not likely to be widespread enforcement. . . . attempts to change a norm by severely punishing that which has previously been unaddressed or underenforced are often unsuccessful.
The simple fact is that the public at large often refuses to see the "nontraditional" [acquaintance] rapist as a rapist at all and therefore refuses to either mark him or punish him as such. After an acquittal in a well-publicized college gang rape, one juror explained that the main concern of some jurors was not wanting "to ruin the boys' lives." Decisionmakers may be willing to ruin the life of a "real rapist," but they will not impose comparable punishment for what they see as a less severe crime.
Thus, where schools mandate expulsion for sex offenses or make expulsion the norm, even in cases where, technically, it is more likely than not that the accused is guilty, if there exists reasonable doubt about his guilt, or a very real chance that he's innocent, many if not most triers of fact will withhold the "death penalty" of expulsion and will think they have no choice but to find the accused "not guilty." This means that some rapists will beat the rap because the mandated punishment is too extreme, and some innocent men will also be spared the ultimate sanction. Expulsion generally will only be ordered where it is clear, not just "more likely than not," that rape occurred.
That's not the result the people behind the new Duke policy likely are seeking, but that's what's going to happen, and that's exactly how it should be. Duke and Vassar (which immediately expels any student found responsible for rape) and schools with similar policies have institutionalized a sort of jury nullification for doubtful sex cases. This could be a positive, but unintended, antidote for the harsh "Dear Colleague" letter.