Duke does not release reports of student-perpetrated sexual violence, even though legislation does not prohibit the University from doing so.
Two education privacy and safety laws—the Family Educational Rights and Privacy Act and the Jeanne Clery Act—allow private universities to disclose disciplinary proceedings and crime reports when a student is an alleged perpetrator of violating university policy, though disclosure is not required. Vice President for Student Affairs Larry Moneta said that in instances of violent crimes or both forcible and non-forcible sex offenses, as defined by the law, Duke historically has not released the name of the student perpetrator. He noted that this has been the case as long as he has been at Duke, and he does not know the reasoning behind this practice.
“Duke does not, as a practice, disclose the results to individuals other than the complainant and the accused,” Moneta wrote in an email Wednesday.
It is the universities’ prerogative to disclose information about cases, and few take advantage of that opportunity, noted Adam Goldstein, attorney advocate for the Student Press Law Center in Virginia. Most private universities choose not to release the names of sexual assault perpetrators, often to avoid bad publicity, he added.
“No one wants to admit that rape happens there,” he said. “Why would they underreport? Because everyone else is underreporting. It’s just one less thing to worry about.”
Goldstein said universities may also choose not release the names as an attempt to protect the victims of assault from recognition.
So many schools do not follow this practice that it has become common for a university to go unnoticed when they make the choice not to disclose, he said.
The Clery Act states that an institution must make timely reports to the campus community on crimes considered a threat—including but not limited to forcible and non-forcible sex offenses—in order to prevent similar future occurrences. Moneta said Duke complies with this policy.
But John Dailey, chief of the Duke University Police Department, said Duke typically does not send out timely warnings about instances of sexual assault because too much time passes in between the incident and when it is reported. This process does not occur within the time frame implied by the Clery Act, he said.
“It probably wouldn’t meet the definition of a timely warning,” Dailey said. “But each case must be looked at individually.”
The imprecision of the Clery Act’s language allows universities to individually interpret what crimes constitute an “ongoing threat” to a campus community, Goldstein said.
Dailey explained that students who are alleged perpetrators of a forcible or non-forcible sexual offense would go through the Office of Student Conduct, which would deliver appropriate sanctions on the student, whether suspension or otherwise. The alleged perpetrator could also be analyzed by the Student Behavioral Assessment Team or given no-contact sanctions or restraining orders to protect the victim.
“We absolutely analyze every incident, every report and attempt to make a determination if it qualifies for timely warning-appropriate properties and whether there is an ongoing threat,” Dailey said. “Even if there is not a timely warning, that doesn’t mean other procedures are not put into place.”
Although Goldstein noted that it is possible to violate the Clery Act by failing to send out an appropriate timely warning, it is also rare that universities would be charged or fined with a violation by the Department of Education if they do not do this, due to a lack of regulation.
“Violating the Clery Act is easier than jaywalking,” Goldstein said.
He noted that changes to the system of auditing universities are underway.
Currently, the FBI audits branches of campus law enforcement to ensure that they are following policies such as the Clery Act. The Department of Education will “piggyback” the audits to more thoroughly investigate each university’s disciplinary procedures when changes come into effect in 2014.
“It’s better than doing nothing, but it doesn’t change the basic framework of the problem,” Goldstein said.
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