*Editor's note: the students' names were changed due to the sensitive nature of their experiences.
Jean*, a senior, brought a case to the Office of Student Conduct last May for a sexual assault against her that took place freshman year. She said she returned home drunk after a sorority formal and awoke to find a friend raping her. He refused to stop, despite her protests, she said. In his testimony, the accused student pled responsible for sexual misconduct, arguing that they had kissed that night but did not have sex.
The hearing occurred last August, shortly after Duke's guideline change to set expulsion as the starting place for discussions on sanctions when a student is found responsible for sexual assault. In Jean's case, the panel found the accused student responsible for sexual misconduct but chose not to expel him.
“The panel considered expulsion but ultimately determined there was not a preponderance of evidence that rape had occurred due to the lack of witness testimony,” the hearing report stated. “However, considering the full body of information, the panel suspected that more than kissing occurred during the incident and determined there was at least a preponderance of evidence for a sexual misconduct violation.”
As a result, Duke suspended the perpetrator for three semesters—the same sanction he received for an academic infraction earlier in his Duke career.
Jean recalled that during the hearing it appeared that the panel had found inconsistencies in the accused's story, leading her to be confused by the final outcome.
"There’s no really clear process on, 'We have this much evidence, here’s a sanction,' or, 'He was responsible for this, now what’s his sanction,'" she said. "It just seems like such an arbitrary, subjective decision about what sanction a person receives."
Jean was one of the 154 students who came to the Women's Center reporting an instance of gender violence in the 2012-13 academic year, of whom 90 percent reported a perpetrator from the Duke community. Of those 138 students, five went forward with a Student Conduct hearing.
Jean's case is unique, but it demonstrates the complexity that surrounds certain aspects of Duke's sexual misconduct proceedings.
As of Monday, Student Affairs decided to make the sexual misconduct sanctioning guideline available to the public.
In the past, however, some students questioned whether choices made in sexual assault cases were subjective because the guideline was unavailable to the public.
Stephen Bryan, associate dean of students and director of the Office of Student Conduct, said, however, that there was always a structured approach to sanctioning.
"That I wish could be communicated more, because the average person might think it’s kind of a 'which way the wind was blowing that day' and that’s not it at all. It's a very structured approach to sanctioning," Bryan said.
The process unpacked
When a student is sexually assaulted by a fellow Duke student, they have the option of bringing the case to Student Conduct. Duke encourages victims to first report the incident confidentially to the Women’s Center. There, trained therapists, such as Sheila Broderick—gender violence intervention services coordinator—meet with the victim and provide psychological aid, as well as information about the choices available for reporting what happened. Ultimately, the choice belongs to the student whether or not to move forward with an investigation.
The process can take months and be very emotionally draining, Broderick said. She pledges to stand by the victim through every step of the process, but she is forthright about saying it won’t be easy.
“You’re still kind of taking a crap shoot bringing a case,” Broderick said. “You’ve got to go forward with the idea of letting go of the outcomes. You’ve got to stand up and speak your truth, and if they say he’s not responsible—you and I know that he’s responsible, and that’s at the end of the day what really matters.”
When a case is initiated, the accuser and accused each submit a statement, and Student Conduct hires an independent private investigator to interview witnesses and establish the facts of the situation.
After this process, which can run for weeks or months, Duke convenes a hearing. A three-person conduct panel—including one student and two staff or faculty members—presides over the process. The accuser and accused sit on opposite sides of a dividing screen and never speak to each other directly. They each deliver their testimony, then the witnesses for either side report their version of the events in question, with the panel asking questions at their discretion. The process can run from three to six hours, Broderick added.
“What I can tell you, with God as my witness, is nobody gets slut-shamed in that room, nobody gets disrespectfully spoken to—the conduct panel members are exceedingly pleasant, kind, it’s non-emotional,” she said.
In order to find an accused student responsible, the case against the student must meet the preponderance of evidence standard, as set by the Department of Education in its April 2011 Dear Colleague letter. This standard is often phrased as having at least 51 percent certainty that the sexual assault occurred. This in turn frequently boils down to the question of consent and whether the accused student engaged in sexual activity when he or she should have known that he or she did not have consent.
“[For] a reasonable person in this situation, should they have known they did not have consent or could not get consent?" Broderick said. "And I’m sorry, [when a student is] passed out in a pool of vomit—I think you know."
Standards of evidence
After the hearing, the panel members deliberate on both the ruling and the sentence, and then they write a decision explaining their rationale. Sanctions can include expulsion, suspension, disciplinary probation, recommended counseling and other educational penalties.
The Student Conduct website outlines the procedure for adjudicating sexual misconduct. Duke does not currently release the specific guideline on what infractions or evidence will lead to a certain sanction, though this should change with Monday's decision to make available the sanctioning guideline. The lack of precise information on what to expect troubled some students.
“It’s amazing how the culture of silence that applies to sexual assault victims and keeps them silent applies to the Office of Student Conduct,” said Christine*, a student who was sexually assaulted in Oct. 2010 and went through the sexual misconduct hearing process Fall 2011. “Students aren’t allowed to get any knowledge of how cases that came before them turned out, so they enter with little preparation and no way to really forecast. There’s no one you can speak to who’s walked in their shoes.”
Some trends have become clearer over time. For instance, if a case does not have evidence beyond the testimonies of the accused and the accuser, the panel will rarely find the accused responsible, Broderick said, because it makes it hard to determine if a reasonable person should have known if they had consent.
“These cases are strengthened by if there’s somebody else, a friend, somebody that they told pretty soon afterwards or if there’s some documentation through texting or Facebooking or witnesses at a party who saw them,” she noted. “I certainly wouldn’t want to say you have to have that… It’s just a matter of strengthening the case.”
For Christine, whose hearing ended in a finding of responsibility, a key component of the hearing was that she had several witnesses who could testify to her inability to give consent on the night in question.
“I was blackout drunk,” she said. “The jury was trying to figure out, 'Was I drunk?' Because if I was, therefore I couldn’t give consent. All the witnesses who saw me said I could barely stand, and he was dragging me.”
Rape kits tend not to play much of a role as evidence in these hearings, Broderick said, because the case usually has more to do with the question of whether sex was consensual rather than if there was sex or not. That said, the fact that someone went to the hospital to get a rape kit examination can add weight to a case.
Christine said she has spoken with other students who are considering bringing a case through Student Conduct, and their greatest fear is often that they don’t know if the accused will be found responsible based on the evidence they have.
“I’m very honest with them and tell them it’s almost completely dependent on your witnesses and whether or not they can verify your story and prove the perpetrator committed that act, whatever it may be,” she said. “I don’t try to scare off anyone, but I tell them it can be an emotionally exhausting process.”
Student Conduct provides the panel members with tools to make sentencing decisions, such as rubrics with suggested sanctions based on prior history of the accused, as well as information on similar cases from a database of the past five years of conduct hearings, Bryan said.
Vice President for Student Affairs Larry Moneta confirmed via email Monday that Student Affairs "will make clear in writing the sanction guideline for sexual misconduct." He was unavailable for further comment in time for publication. Until this decision at the annual meeting to review judicial processes, the guidelines had not been publicly available.
“They’re not secret. There’s never been thought to document them,” Moneta said in an interview April 7.
Publishing such guidelines, though, might box people in when deciding on sanctions, Bryan said in an April 14 interview. Several years ago, Student Conduct published a spreadsheet of the most common infractions and associated sanctions, but the decision “proved to be a disaster.” When students received penalties that differed from the published rubric, they appealed on those grounds, in spite of the reasoning that motivated that particular sanction, such as context and prior history. A published guideline would have difficulty capturing the full range of behaviors and their sanctions, Bryan said.
“Our students sometimes are too black and white, dualistic,” Bryan said. “Unfortunately, particularly underclassmen don’t realize the grayness that exists. When you commit to something in writing for a sanction, it in some ways defeats the purposes of an educational system because students are looking how to get out on a technicality....”
Duke Student Government President Stefani Jones, a senior, said she had been lobbying Student Affairs to make public the sanctioning guideline for the most serious offenses. Jones, who advocated for several reforms of Duke’s sexual misconduct policy in recent years, said that publicly codifying the guideline would help students better understand the possible sanctions for a given offense if they proceeded with the conduct process.
“It’s important for victims of sexual assault who are going through the conduct process to have a full understanding of what the possible sanctions might look like for a given offense,” Jones said. “And it’s just as important that they’re not misled in thinking someone might be expelled or given a very serious punishment and then they not be.”
The spectrum of misconduct
After weeks of navigating the conduct process through a hearing, sometimes victims of sexual assault are confused by the outcome.
“I knew it was a new policy, but I think just because it was so unclear to me why there was no expulsion that it was really upsetting,” Jean said about the outcome of her hearing. "It was more than kissing—I don’t know what they think was between kissing and rape. That’s still sexual assault the way I see it.”
Student Conduct defines 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.”
Bryan noted, though, that expulsion is the first penalty to be discussed for cases at the upper end of the misconduct spectrum, when rape or sodomy has occurred. Thus, if a panel is unable to find a preponderance of evidence that rape or sodomy has occurred, a finding of sexual misconduct may lead to a lesser sanction than expulsion.
Since that policy was put into place last August, at least one person has been expelled for sexual assault, Bryan confirmed.
He added that the panels ultimately have the power to decide the sanction based on the guideline provided to them. Some factors they consider include precedent, context of the situation and prior infractions.
Details on how the panel members are trained, however, are not available to the Duke community.
Training policies withheld kept private
In training, the panel members learn about subjects such as assessing credibility, how to ask questions in a sensitive manner, alcohol's effect on judgement-making, Title IX compliance and the meaning of consent, Bryan said.
Broderick is not privy to the training policies, despite her role as the first point of contact for students looking to bring a case to Student Conduct. She has asked to observe them so as to provide more informed advice for the students she counsels, she said.
When asked if the Women’s Center personnel could observe the training, Bryan said this might pose problems for the neutrality of the process.
“Who would you send to observe on behalf of accused students? It’s really important that we are providing equity and fairness to all students,” he said. “There’s not one central body that works with students who are accused. We have disciplinary advisers who are trained by our office to offer support and guidance, but it’s not like the Women’s Center setup where most students go through them coming forward.”
Moneta said he was not aware of the training information being withheld from the Women’s Center.
“I hope the answer is that the training is transparent and that there’s nothing mysterious about what we’re training,” Moneta said. “They both eventually report to me, so it would not be in my interest for there to be discord.”