Duke Shoots And Misses The Point

It was alleged to have happened in 1999, which just happens to be 20 years ago. Meredith Watson’s attorney wrote a statement alleging two rapes, one by an unnamed Duke basketball player, the other by now-Lt. Governor Justin Fairfax. According to the lawyer’s statement, they happened at Duke University. They happened 20 years ago.

But Watson graduated from Duke long ago. Other than being the site of these two decade old allegations, Duke has nothing to do with this, but that’s not going to stop it from pretending it’s relevant.

Duke’s interest in an allegation from 1999 goes well beyond sports. The university and its administrators had reporting obligations under both Title IX and the Clery Act. These are federal laws designed to prevent and deter sexual harassment, violence and discrimination on college campuses. While potential civil liability and government fines under these laws have likely passed due to the impracticality of enforcement two decades later and the expiration of relevant statutes of limitation, the university will nonetheless want to self-assess its compliance.

This reflects the fundamental misunderstanding of Title IX, that it exists as if it’s a free-standing law against “sexual harassment.” Or more to the point, rape and sexual assault, which are subsumed in the meaningless use of “harassment” that has come to be used as a generic substitute for vague offenses against women. The oddity is that it’s a one-sentence law that really shouldn’t be all that difficult to comprehend.

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

This has not about eliminating sex discrimination. It’s not about rape or sexual assault, nor even sexual harassment, whatever that means. It’s about students not being denied the opportunity of federally funded education programs. It’s about education. It’s about a particular college or university not allowing a person’s education to be impaired by sex discrimination.

What it’s not about is revisiting allegations decades after an education has been completed. It may be that a person’s educational opportunities were impaired decades ago, but they can’t be remedied now. Why? Because they’ve graduated and their education at the college is done.

The window of compliance with Title IX slammed shut, and there is absolutely nothing Duke can do about it now. There is, in the attorney’s statement, one matter of concern, but it doesn’t bear on either of the students accused of wrongdoing.

She went to the Dean, who provided no help and discouraged her from pursuing the claim further.

This is a personnel matter if true, but given that it was 20 years ago, before the 2011 Dear Colleague Letter and the rise of Title IX hypersensitivity that has since pervaded academia, the dean involved, assuming he is still around, likely has already realized the error of his ways. If someone at Duke feels compelled to find a goat, and the dean remains on the roster, they can sit the dean down and give him a stern talking to about what he should have done 20 years ago based on sensibilities today.

Does this mean that a rape on campus goes uninvestigated and, gasp, unpunished? Not necessarily. It’s not as if the campus sex tribunals were ever intended as a substitute for the real system.

This is particularly the case if law enforcement launches its own investigation. North Carolina law does not attach a statute of limitations for felony sexual assault cases. This means it’s possible that a person who committed rape in 1999 could be criminally charged for that crime in 2019.

There has been no complaint to the police of a rape at Duke in 1999 by Watson. It’s not that she couldn’t, but she hasn’t. Nor is she obliged to do so, if that’s not the direction she chooses to go for any reason or no reason. And this was a path she could have chosen in 1999, when she claims the dean discouraged her from pursuing her claims. She did not, and that was her choice then as well. It does not prove these rapes didn’t happen, but it similarly does nothing to enhance the possibility they did.

But if the police were to investigate today upon a decades old complaint, they would not have the opportunity that current proceedings provide. A male accused of sexual assault will be given an opportunity, notwithstanding the denail of requisite information about the allegations against him, to provide a statement to the Title IX administrator. Failure to do so will be taken as a refusal and used as a facile means of finding the accusation credible. If he does give a statement, the investigator will have to find another reason to convict.

But what no one will tell the student is that any statement he makes, any explanation he gives about what, if anything, happened, can be used by real police in real court against him. As the police are well aware, there’s no Miranda in Title IX, and they’re more than happy to have the campus investigator do the dirty work that would be unlawful if done by them.

Should Fairfax and the unnamed basketball player be concerned? Not this time, as Duke’s wading into this cesspool is pointless virtue signaling. There is no Title IX mandate that they do an investigation. The sole purpose to a Title IX investigation ended long ago, and should they ask either of the former students to give statements and defend themselves from this belated accusation, the only answer they need give is “bite me.” Whether Duke can retroactively rescind their diplomas is unclear, but that would make for a curious lawsuit.

If the cops want to use that statement against them, there is nothing to stop them.

Duke Shoots And Misses The Point curated from Simple Justice