Introduction. Sexual misconduct, including acts of sexual violence, is a form of sexual harassment that is prohibited under federal law and the Duke University Harassment Policy. The following special policies and procedures are in place regarding allegations of student-to-student physical sexual misconduct. Complaints of sexual misconduct in which either the complainant or respondent is not a student are addressed through the Harassment Policy. Complaints of non-physical sexual harassment between students are addressed through the Harassment Policy using the undergraduate/graduate/professional school disciplinary process as applicable (see web.duke.edu/policies/students/policies.php for detailed information).
Complaints regarding student-to-student physical sexual misconduct may be filed with the director of the Office of Student Conduct (919-684-6938; firstname.lastname@example.org; www.dukejams.com; 200 Crowell Building; Box 90893, Durham, NC 27708).
The Office for Institutional Equity (OIE) is responsible for implementing and monitoring Duke University’s compliance with federal regulations concerning harassment and discrimination. Concerns, complaints, or questions may be directed to the Title IX coordinator, Dr. Benjamin Reese, Jr., Vice-President for Institutional Equity, Office for Institutional Equity, 114 S. Buchanan Blvd. Bay 8, PO Box 90012, Durham, NC 27708. His phone number is 919-684-8222 and his email address is email@example.com.
Retaliation prohibited. Federal regulations and university policy protect against retaliation directed at any individual who files a complaint under this policy or participates in a complaint investigation. A complaint of retaliation may be initiated with Dr. Reese for any retaliatory actions resulting from the filing of a complaint under this policy.
Note: Any university employee—as well as any student who serves in an ongoing peer-advising role—informed of an allegation of sexual misconduct involving a student is required to notify the Office of Student Conduct with the names of the parties involved and the details of the report shared with him/her. University employees who serve in a professional role in which communication is privileged under North Carolina law (e.g., medical providers, therapists, rape crisis counselors, clergy) are not bound by this expectation, except as required by law.
Upon receipt of a report the Office of Student Conduct will take appropriate responsive action to ensure that the educational environment at Duke University is free of discrimination and a hostile environment. Additionally, as appropriate, steps may be taken to remedy the effects of the harassment on the complainant. This may include commencement of the disciplinary process against an accused student.
Sexual misconduct defined. Sexual misconduct is defined as any physical act of a sexual nature perpetrated against an individual without consent or when an individual is unable to freely give consent. Acts of a sexual nature include, but are not limited to, touching or attempted touching of an unwilling person’s breasts, buttocks, inner thighs, groin, or genitalia, either directly or indirectly; and/or rape, forcible sodomy, or sexual penetration (however slight) of another person’s oral, anal or genital opening with any object. Sexual misconduct also includes sexual exploitation (defined as taking non-consensual, unjust sexual advantage of another for one’s benefit or the benefit of another party), gender-based relationship violence, and gender-based stalking. These acts may or may not be accompanied by the use of coercion, intimidation, or through advantage gained by the use of alcohol or other drugs.
Consent defined. The university’s 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 one’s responsibility to obtain consent.
Conduct will be considered “without consent” if no clear consent, verbal or nonverbal, is given. It should be noted that in some situations an individual’s ability to freely consent is taken away by another person or circumstance. Examples include, but are not limited to, when an individual is incapacitated due to alcohol or other drugs, scared, physically forced, passed out, intimidated, coerced, mentally or physically impaired, beaten, threatened, isolated, or confined.
The use of alcohol or other drugs. The use of alcohol or other drugs can have unintended consequences. 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 another’s ability to give consent. Being intoxicated or high is never an excuse for sexual misconduct.
Examples of Sexual Misconduct
Angela and Aaron have been in an ongoing relationship for a year and a half and have engaged in consensual sexual intercourse. One night while becoming intimate, Angela stops and says she doesn’t feel like having sex that night. Aaron continues to touch her, saying that she got him excited and it wasn’t fair of her to lead him on like that. Again Angela tells him she does not want to have sex, and then is silent. Aaron decides she has given in, and proceeds to have sexual intercourse with her.
This is a violation of the Sexual Misconduct Policy. Aaron had sexual intercourse with Angela against her will. The fact that Angela has freely consented to sexual intercourse with Aaron in the past does NOT mean he has her consent in this situation.
Erin is talking to several of her friends in the hallway at a crowded party. Ryan, a student she knows from chemistry class, comes up behind her and places his arms around her waist. She says hi to Ryan and continues her conversation. After a while, she realized that Ryan has moved his hands up to her breasts. She turns to him and tells him to stop, saying she doesn’t want to be touched in that way and that he should have more respect for her. He laughs, tells her she takes herself too seriously, and again begins to grope her.
This is a violation of the Sexual Misconduct Policy. Ryan touched Erin in a sexual way without her consent, and continued to do so after she told him to stop. This behavior is a form of sexual misconduct.
Kristen and Myra have been intimate for a few weeks. One night, Myra calls Kristen and asks her to come over. When she arrives, Myra kisses Kristen passionately and leads her into the bedroom. They each express their excitement and desire to “hook up,” and are soon making out heavily in Myra’s bed. After a while, Kristen tries to engage in oral sex with Myra. Myra tells Kristen that she really likes her, but that she doesn’t feel ready for that. Kristen tells Myra she’s just being shy, and ignores her when she repeats that she doesn’t feel ready. Finally, Kristen threatens to reveal on the Internet that Myra is a lesbian. Because Myra has not yet come out to her friends and family, she becomes frightened and silent. Kristen proceeds with oral sex.
This is a violation of the Sexual Misconduct Policy. Because of Kristen’s manipulative and threatening arguments, Myra was afraid and unable to freely give her consent. Kristen did not receive consent from Myra and has committed sexual misconduct.
Liz and Tom have been together for six months. She often tells her friends stories of Tom’s sexual prowess, and decided to prove it to them. One night, she and Tom engage in consensual sexual intercourse. Without Tom’s knowledge, Liz sets up her digital camera to videotape them having sex. The next evening, she uploads the video to an online video-sharing site and discusses it with her friends online.
This is a violation of the Sexual Misconduct Policy. Tom’s consent to engage in sexual intercourse with Liz did NOT mean Liz had obtained his consent to videotape it. This is a form of sexual exploitation.
Andrew and Felix have been flirting with each other all night at a party. Around 12:30 a.m., Felix excuses himself to find a bathroom. Andrew notices Felix slurring his speech. Andrew wonders if Felix went to the bathroom to vomit. When Felix returns, the two begin flirting more heavily and move to a couch. As the conversation continues, the two become more relaxed and more physically affectionate. Andrew soon suggests they go back to his room, and Felix agrees. As they walk down the stairs, Andrew notices that Felix looks unstable and offers his arm for support and balance. When they get back to his room, Andrew leads Felix to the bed and they begin to become intimate. Felix becomes increasingly passive and appears disoriented. Andrew soon begins to have sexual intercourse with him. The next morning, Felix thinks they had sex but cannot piece together the events leading up to it.
This is a violation of the Sexual Misconduct Policy. Felix was clearly under the influence of alcohol and thus unable to freely consent to engage in sexual activity with Andrew. Although Andrew may not have known how much alcohol Felix had consumed, he saw indicators from which a reasonable person would conclude that Felix was intoxicated, and therefore unable to give consent. Andrew in no way obtained consent from Felix.
Denise is an undergraduate teaching assistant in Paul’s economics class. She notes that he has not been performing well on take-home assignments and exams. Both of them have come to a party, each with their own group of friends. Denise has consumed one can of beer, while Paul is rather intoxicated. Denise sees Paul and approaches him. She flirts with him, telling him that she can help him improve his grades if he will hook-up with her. As Paul turns to walk away, Denise grabs his buttocks and squeezes them.
This is a violation of the Sexual Misconduct policy. Denise, in a position of power over Paul as his teaching assistant, attempted to arrange a quid pro quo sexual relationship. Additionally, she did not seek consent from Paul to touch him, even if a reasonable person could conclude that Paul was not too intoxicated in order to provide consent.
Support Services and Options for Survivors of Sexual Misconduct
A variety of support resources are available on campus and in the community to assist students in dealing with sexual or dating violence, whether it happened recently or in the past. Following is a list of helpful resources. Additional resource information is available at http://studentaffairs.duke.edu/wc.
Information, advocacy, counseling and emotional support. The Office of Gender Violence Prevention and Intervention (GVPI) provides education, advocacy, and support for students who are victims of sexual and dating violence as well as their friends and families. Male or female students who are victims can get information, support and accompaniment regarding medical treatment, reporting options, academic and residential relief, referrals, legal interventions, and therapy. Walk-in or scheduled appointments with the GVPI Coordinator are available during business hours by calling 919-684-3897, emailing firstname.lastname@example.org, or by visiting the Women's Center located at 107 Few Fed Building near the bus stop across from the Allen Building. Emergency after-hours assistance is available by calling 919-886-6814. All services are free and confidential.
Counseling and Psychological Services (CAPS) also offers ongoing counseling services; call 919-660-1000 for an appointment. For 24-hour crisis information and referral, contact the GVPI information line at 919-681-6882, the dean on-call (pager number 919-970-4169), or the Durham Crisis Response Center at 919-403-6562 (for 24-hour hotline). All services are confidential and do not require making a formal report to the police.
Medical concerns. Seek medical attention immediately to have the most options for the prevention of pregnancy and sexually transmitted infections. Even if you do not think you are injured, you may have injuries as a result of sexual assault that you cannot see. For immediate and urgent medical concerns, go directly to the Emergency Department (ED) of Duke Medical Center (off Erwin Road near Trent Hall). You can call the Duke Police Department (911 or 919-684-2444 from non-campus phones) for transportation without having to make a report. The services available are: medical care, evidence collection, emergency contraception, and sexually transmitted disease prevention.
Evidence can be collected
anonymously. Evidence is best collected within 72 hours of the assault.
Even if you do not think you would like to pursue a criminal case now,
you may have the evidence collected anonymously with a blind report that
includes no identifying information other than a case number; you may
decide later whether filing a police report is right for you. Your health insurance and the State of North Carolina MAY cover portions of the costs of your medical care. Contact the Women's Center for more information.
For less immediate medical concerns, schedule an appointment at Student Health (919-681-WELL). The services available are: medical care, emergency contraception and sexually transmitted disease prevention. The student health fee covers all services, except for a minimal charge for emergency contraception. You may call GVPI for someone to accompany you to the ED or Student Health.
Reporting to the police. Sexual misconduct may also be criminal in nature, and a student may choose to file a report with law enforcement. Duke Police (911 or 919-684-2444 from non-campus phones) will respond to emergencies and non-emergencies to provide assistance by intervening in cases of assault, providing transportation to the Emergency Department, taking reports of an assault, investigating and participating in legal or disciplinary action. They are responsible for notifying the community in a case of continuing danger, issuing a trespass order that requires an individual to stay away from campus or a particular area of campus when needed, and providing referrals and information including how to obtain a restraining order. Assaults that occur off campus may fall under the jurisdiction of the Durham Police Department or other law enforcement agency. Students may contact the Durham Police directly (911 off campus or 919-560-4427/560-4609) or the GVPI office or Duke Police can help facilitate reporting. Blind reporting—filing a report without your name attached to it—is an available option with both Duke and Durham's police departments. Regardless of whether a complainant pursues a criminal complaint, the university will investigate the incident in question and take appropriate responsive action to ensure that the educational environment at Duke is free of harassment and to prevent the recurrence of a hostile environment, and, as appropriate, to remedy the effects of the harassment on the complainant.
If you are a student at Duke University and are the victim of gender violence—regardless of your own gender— contact the Women's Center at 919-886-6814 or email WCHelp@duke.edu. See "Support Services and Options for Victims of Seuxal Misconduct" above for additional information.
Reporting Sexual Misconduct for University Action
The Office of Student Conduct receives complaints of a possible violation of this policy for investigation and possible remedial actions, including adjudication through the university's disciplinary process or other remedies designed to reasonably minimize the recurrence of such conduct as well as mitigate the effects of the harassment. Reports may be filed at any time; prompt reporting can aid an investigation. The disciplinary process is available as an option until an accused student graduates.
Investigation. The conduct officer, or designee, may meet with the complainant to hear or clarify his/her account of the incident and review the investigation process and possible remedies, including the disciplinary process. A formal investigation may be launched, which may include the use of an independent investigator to investigate the complaint, interview witnesses, and collect additional information. After an initial investigation, the conduct officer or designee may ask further clarifying questions of the complainant, accused, or witnesses. A determination will be made on whether to proceed with the disciplinary process based on sufficient information to believe that a policy violation may have occurred. Should a determination be made not to proceed with the disciplinary process, the complainant may meet with the conduct officer to review that decision. During the investigation and until resolution of the matter, interim restrictions may be issued as deemed appropriate by the conduct officer or designee, including restrictions on contact between the complainant and the accused, exclusion from areas of campus, removal or relocation from residential areas, etc. An investigation will typically take no longer than 60 days after receipt of a complaint.
Hearing procedures. If an investigation supports moving forward with a hearing, a three-person hearing panel will preside over a case that is referred to the Undergraduate Conduct Board, comprised of two faculty or staff members and one student. (Hearings involving students within other communities [Fuqua, Law, Divinity, Medical, etc.] will proceed based on that community’s procedures. Hearings involving students from multiple communities will be adjudicated by the University Judicial Board. Note: Operation of the University Judicial Board is currently under review. For the current policies and practices of the University Judicial Board, see studentaffairs.duke.edu/conduct.) A finding of responsibility must be based on a unanimous vote using a “preponderance of evidence” standard; any sanction must be decided by a majority vote with the exception of suspension or expulsion, which must be supported unanimously. A complainant may have an advisor (a member of the university community) present during a hearing, but as with the accused’s advisor, he/she may only confer quietly or through notes with the complainant and may not address the panel.Participants are reminded that any information shared during a hearing is confidential. The hearing panel will decide what testimony, witnesses, or other information is relevant, and may exclude information or a witness that is deemed duplicative or immaterial. Absent exceptional circumstances, the complainant or accused should inform the conduct officer in writing at least 24 hours in advance of the hearing the names of any witnesses he/she wishes to testify and to what they will attest.
Information for complainants. Complainants will be treated with respect before, during, and after the disciplinary process. The university will make all reasonable efforts to ensure the preservation of confidentiality, restricting information to those with a legitimate need for it. Complainants will be informed of the university's disciplinary process and possible outcomes. The university will communicate substantive and, when warranted, procedural developments regarding the investigation. The alleged conduct may also be criminal in nature, and complainants have the right to report such conduct to local law enforcement, which does not preclude university disciplinary action. Regardless of whether a complainant pursues a criminal complaint and/or the university's grievance process through this outlined policy, the university may investigate the incident(s) in question and will take appropriate responsive action to ensure that the educational environment is free of discrimination and the prevent the recurrence of a hostile environment—and, if appropriate, remedy the effects of the harassment on the complainant. Remedies available to a complainant may include, but are not limited to: reasonable academic accommodations, on-campus housing reassignment, a "no contact" order between the accused and the complainant, and disciplinary action against the accused as determined through the disciplinary process. See http://studentaffairs.duke.edu/conduct/undergraduate-disciplinary-system/disciplinary-process for additional information about the disciplinary process.
Complainants have the right to (and are strongly encouraged to seek) counseling and support available through resources such as Gender Violence Prevention and Intervention (GVPI) in the Women's Center, Counseling and Psychological Services (CAPS), and Durham Crisis Response Center (DCRC).
Complainants may request changes to academic and living situations and will be notified as to what changes are reasonably available. Complainants also have access to disciplinary advisors to guide them through the disciplinary process.
Allegations of sexual misconduct will be investigated in a thorough and timely manner, typically within 60 days of receipt of a complaint. An advisor (who is a member of the university community) may accompany complainants to any meeting with the conduct officer or to a hearing. Complainants have the right to receive—within the parameters of the Family Educational Rights and Privacy Act (FERPA)—a copy of the written information given to a hearing panel, and written notice of the outcome of an investigation. Complainants may offer relevant material witnesses to speak on their behalf. (Note that a hearing panel may exclude witness testimony deemed irrelevant or duplicative.) Complainants may also submit two written character references to a hearing panel before the hearing begins. Complainants will be given the opportunity to make opening and closing statements to a hearing panel.
Information for accused students. Students accused of sexual misconduct who proceed to a hearing have similar rights as a student accused of any other policy violation (unless noted otherwise). For undergraduates, this includes the right to a 120-hour/five day notice in advance of a hearing, the right to bring material witnesses to speak on his/her behalf (written testimony of two character witnesses may be submitted to a hearing panel before the hearing begins), the opportunity to make opening and closing statements, and the right to ask questions (directed through the hearing panel) of any witness present. (Note that a hearing panel may exclude witness testimony deemed irrelevant or duplicative.) Students within other communities (Fuqua, Law, Divinity, etc.) should consult their respective school's bulletin (or http://web.duke.edu/policies/students/policies.php) for any different or additional rights.
An accused student may request changes to academic and living situations, and will be notified as to what changes are reasonably available. Accused students can expect a presumption of innocence throughout the disciplinary process unless found responsible through an impartial and fair hearing using a "preponderance of the evidence" standard, and will be treated with respect throughout the process.
Disciplinary advisors are made available to the accused and should be consulted at the onset of an investigation. Their role is to educate accused students about the disciplinary process and provide support. An advisor (a disciplinary advisor or any other member of the university community) may accompany the accused to a hearing, but may only confer with the accused.
Notification of hearing outcome, sanctions, and appeal. The accused will receive verbal notification of the outcome of a hearing no sooner than two business days and no later than five business days after the hearing. The complainant will be notified of the outcome of a hearing consistent with federal law. Notification will be individually given to the accused and complainant at approximately the same time. A written hearing report outlining the decision and rationale of the hearing panel will be later delivered to the accused and the complainant consistent with the Family Educational Rights and Privacy Act. Sanctions for a finding of responsibility include, but are not limited to, expulsion, suspension, disciplinary probation, recommended counseling, and/or other educational sanctions deemed appropriate by the hearing body. Students who are found responsible for a violation of this policy have a right of appeal based on the following grounds: 1) new information (available after a hearing) of a nature that the verdict or sanction may have been different; 2) procedural errors within the hearing process which may have substantially affected the fairness of the hearing; and 3) the finding was inconsistent with the weight of the information. Complainants have the same rights of appeal afforded to accused students. Appeals will typically be decided within 10 business days of submission. For more information about appeals, see http://studentaffairs.duke.edu/conduct/undergraduate-disciplinary-system/appeals.
Duke University also prohibits discrimination of any kind. Complaints involving allegations of discrimination may be brought utilizing the Duke Discrimination Grievance Procedure. Questions, concerns or complaints of discrimination may be directed to the Office for Institutional Equity, 114 S. Buchanan Blvd., Smith Warehouse, Bay 8, Durham, North Carolina 27708 (919) 684-8222. The full text of the discrimination grievance procedure may be found at the OIE website: www.duke.edu/web/equity.
|Last Updated:||8/19/2013||Policy Owner:||Office of Student Conduct