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Reconsidering how we try sexual assault by The Chronicle Editorial Board


This past May, a senior, Lewis McLeod, sued the University after being found responsible of sexual misconduct by the Duke undergraduate disciplinary system and expelled. His encounter with Duke’s internal judicial system included procedural irregularities—most notably being permitted to take his final exams after the decision of expulsion had been reached—highlighting many of the flaws of the system we noted in a previous editorial, “Expand Due Process Rights for Students.” Today, we examine whether the current system is the most effective process.

The University currently adjudicates sexual misconduct cases through a system that denies justice to both accuser and accused. Judicial panels, which are composed of students, faculty and conduct board staff, are unequipped to handle the difficulties of examining a sexual assault case such as examining a rape kit. As a result, hearings usually focus on whether sex was consensual rather than whether sex occurred. Furthermore, students accused of sexual conduct are evaluated using a “preponderance of evidence” standard, meaning they are convicted if the panel is at least 50 percent confident of their responsibility—the legal system uses a standard of “beyond reasonable doubt.” The low evidentiary standard coupled with the University’s preferred policy of expulsionmay result in increasing the risk of false positives where innocent students are wrongfully expelled for nonexistent crimes.

Sue Wasiolek, assistant vice president for student affairs and dean of students, and Stephen Bryan, associate dean of students and director of the Office of Student Conduct, claim that the University is legally bound to resolve sexual assault cases pursuant to a 2011 Dear Colleagues letter from the Office for Civil Rights of the Department of Education. However, it is unclear to us whether that edict is legally binding. For an executive agency to promulgate a binding rule, the proposed rule must undergo a process set forth in the Administrative Procedures Act, which includes, for example, a public comment period. A Dear Colleagues letter simply expresses an opinion. Additionally, other universities, such as Xavier, have declined to adjudicate sexual assault cases, referring them instead to the local prosecutor’s office.

We strongly urge Duke to follow in Xavier’s example and discontinue trying sexual misconduct cases in internal hearings where panelists are not always equipped to respond to such serious allegations. In many cases, both claimants and defendants in the system have felt victimized, which can undermine the legitimacy of a hearing’s conclusions. This system has the potential for real, human cost, where innocent students are convicted and guilty ones set free. Instead, Duke should commit itself to a single-track system where alleged victims of sexual misconduct seek redress from the real world criminal justice system.

Admittedly, a one-track system would not be perfect. Already, many students choose not to report cases of sexual misconduct for fear of exposing themselves or getting the alleged perpetrator in trouble—reverting to the criminal justice system may aggravate underreporting. However, there are potential resolutions to these fears. North Carolina has strong rape shield laws to protect the identities of potential victims such as NC General Statute §15-166 , which authorizes a judge to clear the court when taking testimony from the claimant. Furthermore, the University should continue to provide the same counseling and care that the current system provides, as well as devote resources to helping students file claims to the criminal justice system and help navigate the legal terrain. It is important to note that appealing to the criminal justice system does not absolve the University from its responsibilities of helping its students.

The underreporting of sexual misconduct remains a serious problem that should be addressed through cultural changes and campus dialogue. Amending the University’s process of handling sexual misconduct is a big step in the right direction.

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