Thoughts on Adjudication of Sexual Assault on Campus
November 24, 2014 3 Comments
The Rolling Stone article of last week recounting a fulfilled conspiracy to commit rape, apparently as part of a fraternity initiation at UVA, is horrific.The described response by the University and the role that social norms are said to play in preventing victims from coming forward or receiving a just hearing if they do, feels like a tipping point of sorts in addressing rape on college campuses.
It is important for Universities to make policy changes to protect students, as better policy is the most direct and best way to influence campus culture and thus protect members of the community.
I am serving my third semester as a member of the Executive Committee of the Academic Council (Faculty Senate) at Duke University, and here are a few of my emerging thoughts on policy changes at Duke:
- Generally, I think Duke has improved its policy in this area over the past 18 months, but I am not sure that we have the optimal process.
- Duke University altered its disciplinary procedures in 2013 to make expulsion “the preferred” (but not mandatory) penalty for an undergraduate found guilty of sexual assault by the University. Prior to this, the “preferred” penalty for a student found guilty of sexual assault was suspension for 3 to 4 semesters, including Summers. In 2012, Duke also eliminated a 1 year statute of limitations for the reporting of sexual assault. These are all good changes in my opinion.
- Here is the Duke Community Standard for Undergrads for the 2014-15 academic year (note: graduate students are governed by school-specific rules; many refer back to these rules, but there is heterogeneity).
- A Duke senior was expelled several days prior to graduation in May 2014, and this case is currently being litigated in State court, primarily around process issues related to the policy changes occurring after the sexual assault that the student was found guilty of by the University. The Durham County District Attorney did not bring a criminal prosecution in this case.
- The Duke Community Standard governs all activities of the University, and sexual assault/consent issues are addressed in detail at pp. 39-45.
- I think it is good policy to define a strong penalty for sexual assault in the University’s disciplinary procedures, and the clarity of the sexual assault section in the 2014-15 Community Standard puts students on fair warning on this topic. Note, the standard of evidence (preponderance of the evidence, with a student charged with a sexual assault having a presumption of innocence) is different from that in a criminal proceeding, which is legitimate because it is not a criminal proceeding. The Community is filing notice of these expectations and standards of judgement, and students should understand the Community Standard. However, very strong penalties mean that issues of due process and procedure are important, though they are not the same as in a criminal proceeding (being expelled is not the same as being sent to prison for 35 years).
- I think the impermissible conduct (p. 40) and the importance and definition of consent (p. 41-42) are reasonable. However, I am uncertain that Duke has all of the process issues worked out to best administer this policy. On page 43-44, a series of statements about what “may” happen in terms of investigation should be replaced with more concrete statements of what will happen. Further, I think that the University should consider undertaking more explicit procedures, and perhaps even consider doing something like hiring a retired Superior Court Judge or similar party to run the process of adjudicating sexual assault charges against students.
Duke’s clarification of sexual assault as it relates to its Community Standard has been strengthened in ways that are positive and should serve to change the culture at Duke in a way that better protects students. Better policy is the best way to improve the culture. However, I think the process issues remain a work in progress as University disciplinary procedures move away from traditional issues of academic cheating, to broader issues such as sexual assault.
note: just to be clear, these are my personal thoughts and don’t necessarily represent anyone else’s thoughts.