Following an article examining a lawsuit filed by men’s soccer player Ciaran McKenna against Duke for allegedly mishandling his sexual assault hearings, The Chronicle is taking a closer look at the specifics of the case. This article examines one finding of McKenna’s second panel.

Sophomore Ciaran McKenna, a men’s soccer player, alleges that Duke violated its own policies during the disciplinary process for his sexual assault hearings, in part by sending his case to be re-examined by a second panel after he appealed the first panel’s findings.

According to the second panel’s findings included in McKenna’s court filing, the panel concluded that based on the complainant’s assertion that she was a virgin, McKenna “should have sought additional confirmation that the complainant wanted to engage in sexual intercourse.”

But what does the complainant’s virginity have to do with consent?

The Duke Community Standard notes under its section about hearing procedures for sexual misconduct cases that “a complainant’s or respondent’s prior or subsequent sexual activity is typically not relevant and will only be considered as evidence when the previous or subsequent behavior was substantially similar to the conduct at issue or indicates a pattern of behavior and substantial conformity with that pattern.”

When asked what this statement meant, Dean of Student Conduct Stephen Bryan gave an example of a male student who has been accused of flashing himself to a female student in a dorm hallway. The hypothetical student claims that this was an accident, but upon investigation, the University learns that he has repeatedly “accidentally” dropped his towel as he was walking down the hallway past other female students. This might be one of the rare instances when prior sexual activity would be considered, Bryan indicated.

He also emphasized that considering a student’s virginity is typically not permitted in hearings. The words “virgin” and “virginity” are not in the University’s policy on consent at all, he noted.

Despite that, the female student’s virginity was a major focus of discussion in the first panel. She argued to the first panel that one of the reasons she said she did not want to have sex that night was that she was a virgin. But McKenna claimed one of his teammates had a previous sexual relationship with the alleged victim, which he claimed undermined her credibility. The first panel tried to contact the teammate to determine whether he had in fact previously had sex with the female student, but was unable to reach him.

Howard Kallem, Duke's director of Title IX compliance, said that if one sexual partner stated they were a virgin, that would not necessarily signify that the person did not want to have sex.

He emphasized that the determination would depend on the broader context.

“I don’t think a statement that someone is a virgin by itself would be enough—you would have to look at what else they were saying, what else they were doing,” Kallem said.

The second panel’s report noted that both parties were in agreement that the complainant told McKenna she was a virgin before sexual intercourse began.

“Based on that comment, the respondent reasonably should have known that there was not clear consent,” the report stated.

Senior Jessica Van Meir, president of We Are Here Duke, an organization that works to address gender violence, said that virginity is irrelevant in determining whether someone wants to have sex.

She speculated, however, that the second panel considered this in its findings because the alleged victim making such a statement could have indicated her reluctance to move forward with sexual acts.

“I would think the reason they said that is that making that kind of statement indicates some hesitancy, in my interpretation of it,” Van Meir said.

She noted that because society considers losing one’s virginity to be a big event, gaining additional affirmation would be a basic matter of respect.

“If you know your partner is a virgin, you should be even more careful to make sure that is really what someone wants to do,” she said.

In contrast, Kallem said that one party being a virgin would not necessitate the other obtaining a higher level of consent than he or she otherwise normally would.

“There’s nothing in the policy that would specifically require that,” he said.

The second panel’s findings mentioned that although the complainant said she told McKenna that she wanted to remain virgin, McKenna disputed this.

“Even assuming the [McKenna’s] account was true, the complainant’s statement created enough ambiguity that clearer consent needed to be obtained,” it said.

Kallem confirmed that the mere fact one party was a virgin would not affect the policy’s requirements for gaining consent.

“You know somebody who is a virgin could be saying go easy on me, be gentle,” he added. “Or I’m a virgin and therefore I’m not ready to give up my depends upon the context and what is being said or done at the time.”

Monika Johnson-Hostler, executive director of the North Carolina Coalition Against Sexual Assault, said she has never heard of a university mentioning virginity in its consent policy.

“That’s usually not a point that we kind of hone in on,” she said. “For us, it’s more specific around that it is affirmative consent.”

She added that is it more important for universities to clearly define consent and make sure everyone is aware of that policy.

Johnson-Hostler said that she does not recommend universities mention virginity in their consent policies. She added that she has seen cases in which alleged victims did not bring up virginity to their alleged offender but that the topic of virginity does come up in hearings.

If the panel addressed a factor that was not included in the consent policy, she said she could see why McKenna would use it in a case against the University.

“I am definitely shocked that if virginity isn't included [in the policy], then how is that an assertion in the outcome?” Johnson-Hostler said.