In October 2002, a woman student was assaulted in a dormitory bathroom at Duke. Over the next several weeks, the Duke student newspaper published numerous personal stories and reflections about sexual assault on Duke's campus. This past fall, a group of Duke students republished those stories and reflections as Saturday Night: Untold Stories of Sexual Assault at Duke, a 29-page magazine they distributed across campus in an effort to shift people's perceptions about the sexual climate at their school. They succeeded. The 2200 copies of Saturday Night flew from campus kiosks, and the students who put the magazine together began to accept invitations to speak about rape in sociology and women's studies classes. Duke also rewrote its policy on sexual misconduct, reasoning that since the school only prosecutes one student per year, and since, according to the false statistics of the feminist establishment, one in four women is sexually assaulted during her lifetime while one in six is assaulted while at college, Duke should devise a policy that allows it to reel in more of the predators populating its campus.

Duke's new sexual misconduct policy is a piece of work well worth studying. It is overbroad, defining as a prosecutable offense everything from "inappropriate touching" (which is not defined, and which is thus whatever an accuser wishes it to be--a peck on the cheek, perhaps, or an arm around a shoulder) to rape (a move that troublingly equates rape and touching).

The policy is also absurdly conceived. Defining sexual misconduct as "any physical act of a sexual nature perpetrated against an individual without consent or when an individual is unable to freely give consent," the policy proceeds to offer the most contorted definition of consent imaginable:

The universityís 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. It is an informed decision made freely and actively by all parties. Relying solely upon non-verbal communication can lead to miscommunication. It is important not to make assumptions; if 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. Students should understand that consent may not be inferred from silence, passivity, or lack of active resistance alone. Furthermore, a current or previous dating or sexual relationship is not sufficient to constitute consent, and consent to one form of sexual activity does not imply consent to other forms of sexual activity. Being intoxicated does not diminish oneís responsibility to obtain consent.

Conduct will be considered ìwithout consentî if no clear consent, verbal or nonverbal, is given. It should be noted that in some situations an individualís ability to freely consent is taken away by another person or circumstance. Examples include, but are not limited to, when an individual is intoxicated, ìhigh,î scared, physically or psychologically pressured or forced, passed out, intimidated, coerced, mentally or physically impaired, beaten, threatened, isolated, or confined.

Even more nonsensically, a drunken partner is at once incapable of giving consent and required to obtain it: "Being intoxicated does not diminish oneís responsibility to obtain consent," but "alcohol or other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and effectively given. The perspective of a reasonable person will be the basis for determining whether one should have known about the impact of the use of alcohol or drugs on anotherís ability to give consent."

One suspects that Duke's fantasy sexual encounter involves the signing of multiple consent forms, one for each new activity as it is introduced. And one notes that it will be the rare couple indeed who adhere to the letter of this policy. Consensual sex just does not work the way the Duke bureaucrats want it to. The bottom line: this policy will have little or no impact on how sex proceeds at Duke, but it will vastly alter the capacity for consenting sex to be described after the fact as nonconsensual.

This is not to belittle the problem of sexual assault, but it is to belittle the shortsighted hubris of universities that imagine they can improve things by installing policies that do more to create assault than to curtail it. The point of Duke's policy, or so it seems, is to broaden the definition of sexual misconduct while at the same time narrowing the terms upon which a sexual act is permissible; in other words, to produce a much wider pool of potentially prosecutable sexual misconduct. How else, after all, is Duke to increase the number of sexual misconduct cases it pursues each year? How else is it going to produce a volume of predators that is commensurate with the false rape statistics that it publishes as true?

Policies like Duke's are as misguided as they may be well-meant. Though they sound responsible and forward-looking on the surface, they often create the very atmosphere of sexual threat and paranoia that they claim to resolve. They also ruin lives. Just ask Adam Lack and David Schaer.

Great essay on the Duke policies on sexual assault. No wonder the number of men on campus is dropping -- talk about a hostile environment. What's interesting is what the rights of the accused do NOT include: no right to an attorney, cross-examination *only* through the board and then only of witnesses. Apparently you do not even have the right to know who your accuser is, much less cross-examine them.

As you've mentioned before, advocacy groups use unprovable and anonymous incidents to leverage draconian policies like this one, which essentially classifies every hetero male on campus as a sexual predator.

I always wondered why they can't just say -- "it's not something the university should handle -- this is a criminal matter that the police must handle" and make conviction for sexual crimes (or any other violent crimes)
grounds for expulsion.

There are too many non-law-enforcement organizations which think it's their responsibility to have their own criminal justice system. Crime prevention should be more up their alley, like not allowing any alcohol on campus (a no-go for Duke, but whatever).

When I went to N.C. State, they definitely could have used some real crime prevention measures and campus enforcement. Their lighting was awful, and too often doors would be propped open and outsiders would come in to assault students or help themselves to others' possessions. We could never get the door-proppers kicked out of the dorms (they were invariably freshmen, usually girls. They were complete idiots.) I don't know if Duke has that problem, or if their sexual assault situation stems from their frat/sorority culture. My sister was in a sorority at Duke, and I know
pretty much everybody got drunk at their (off campus) parties. Duke could start there -- decertifying or dechartering (whatever it is) any frats that had keggers. They're not going to do that, because it's easier to spout of words about "consent for each individual act" as opposed to actually cracking down on the very popular illegal parties they've got going on.

It kinda reminds me of the universities deciding to write new honor codes as opposed to actually cracking down on prof's habits that make cheating easy.