Amid sophomore men's soccer player Ciaran McKenna's lawsuit against the University, Duke's sexual misconduct policy and hearings process has come under scrutiny.
For sexual misconduct cases, the Office of Student Conduct convenes a panel to determine the culpability of the accused student. This panel consists of three members—two faculty or staff and one student, and "when possible, at least one representative of the complainant's and respondent's schools," according to the 2016-17 Duke Community Standard.
To serve on sexual assault panels, rising juniors and seniors who are already on the Undergraduate Conduct Board must go through an application process, explained Stephen Bryan, associate dean of students and director of the Office of Student Conduct. Trinity College of Arts and Sciences and Pratt School of Engineering approve respective faculty members to sit on the panel, and Larry Moneta, vice president for student affairs, approves staff members.
When asked about the training process these individuals receive to serve on a sexual assault panel, Bryan directed The Chronicle to a 2015 guest column written by Howie Kallem, director of Title IX compliance.
In the column, Kallem noted that panelists are trained on the University's sexual misconduct policies as well as how sexual assault hearings are conducted and their role in the hearing. They also learn skills such as how to evaluate evidence and are informed of federal laws such as Title IX and the Violence Against Women Act.
"Training covers...relevant definitions of terms such as sexual harassment, sexual misconduct, consent, incapacitation—including the possible impact of alcohol and drugs, the impact of trauma, the perspective of the respondent, how to be sensitive to the emotional state of both parties during the hearing process,” Kallem wrote.
Through lectures, case studies and group discussions, panelists learn tips aimed to help them determine credibility and sanctioning, he explained.
Currently, hearing panels are composed of three members. Bryan noted they originally had five students but the number was reduced in 2003.
“This practice was supported by students who wanted to see the panel size reduced to promote greater confidentiality," Bryan wrote in an email.
The change coincided with the requirement of a unanimous vote to find a student responsible for sexual assault. Previously, three members of a five-person panel had to find a respondent guilty—now three out of three must reach a unanimous conclusion. Bryan explained that this "still preserv[ed] the same number of votes needed for such a finding."
This requirement of unanimity is rare on college campuses. An article in The New York Times reported that Duke and Stanford are the only schools on the U.S. News and World Report’s list of top 20 colleges with similar sexual misconduct processes that require a unanimous decision to decide responsibility.
The panel must also vote unanimously to assign sanctions. In 2013, Duke changed its policy so expulsion is the preferred sanction in sexual assault cases. However, mitigating factors can modify the disciplinary response.
Some argue the stipulation that panels must reach a unanimous decision makes it more difficult for the complainant to succeed in the hearing.
“Needing unanimity would make it a little bit harder for the complaining party to get a ruling in his or her favor,” said Jane Wettach, a professor of education law at Duke Law School. “Any time you have to convince more people of your position, it probably lessens your chances of prevailing.”
Wettach speculated that universities might use this unanimous panel to create a greater certainty of guilt. However, she also noted that campus disciplinary processes use different standards than courts.
Although Duke requires panels to reach unanimous decisions, it also uses the preponderance of the evidence standard as directed by the Department of Education's 2011 "Dear Colleague Letter." A legal standard used in most civil trials, the preponderance of evidence standard essentially means that there is more evidence of favor of the complainant than not, Wettach explained.
This is a lower standard of proof than the "beyond a reasonable doubt" standard used in criminal cases and the "clear and convincing evidence" standard used by institutions like Harvard University and Princeton University before the Dear Colleague Letter.
“It is a balance. You’re always trying to balance the rights of the accuser and the rights of the accused," Wettach said. "And so having a unanimous panel and having the standard be preponderance of the evidence represents a balance.”
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