Student Sexual Misconduct Policy: Frequently Asked Questions

These questions and answers are intended to clarify the Student Sexual Misconduct Policy. They do not represent official Duke University policy.

Prohibited Conduct

A: Domestic violence does not include violence between roommates unless they are also in a dating or romantic relationship. Violence between roommates is covered under the Physical Abuse, Fighting and Endangerment Policy.

A: A student’s ex-boyfriend, “Chris,” is following the student’s new boyfriend, “Jordan,” around campus and in Durham. Chris has added Jordan as a friend on Facebook under a false identity and is also making threats online.

A: A respondent threatens to disclose nude pictures of a complainant if the complainant reports sexual misconduct. A complainant asks his friend to physically threaten a respondent's witness to discourage that witness from participating in an investigation. A sorority rejects a pledge because she filed a report against a popular student on campus. Each of these example would be a violation of the Policy if the Office of Student Conduct (OSC) determines that the retaliatory conduct is sufficiently serious to discourage a reasonable person from further complaints of harassment.

 

Policy Application

A: Definitions of consent and prohibited conduct that were in place at the time the alleged sexual misconduct occurred will be applied. Complaint resolution procedures in effect at the time the incident is reported will be followed.

 

 “Amnesty”

A: Reporting incidents of sexual misconduct is vital to maintaining a campus climate free of harassment and sexual violence. Therefore, students who report potential violations of the Sexual Misconduct Policy will generally not be charged with a violation of the Alcohol Policy. The same applies to the personal use of drugs under the Drugs and Drug Paraphernalia Policy. This also applies to witnesses who participate in the resolution of a complaint. However, students may be charged with (a) policy violation(s) if the use of alcohol or drugs endangered another individual or placed the other individual’s health or safety at risk.

 

Reporting

A: OSC does not routinely search social media for violations of university policy. If behavior that appears to be in violation of policy is brought to the attention of OSC, the report will be investigated to the extent practicable. However, social media companies will only identify the senders of anonymous posts when they involve possible criminal conduct.

A: No. Those conducting research under an IRB-approved study are not required to report to the Office of Student Conduct sexual misconduct learned through data collection for that study.

A: An anonymous report is one that is submitted without disclosing the name of the reporter, the details of the behavior, and/or the name(s) of the person(s) involved. It may be filed on behalf of oneself or another person. An anonymous report can be filed with DukeReach (919-681-2455; https://studentaffairs.duke.edu/dukereach1/reporting-concern) or with Duke Police through Silent Witness. The information submitted through an anonymous report will typically be shared with the Office of Student Conduct.

A confidential report is one that is made to individuals/offices designated by the university or who are privileged under North Carolina law. This includes staff at the Women’s Center, CAPS, Student Health, the ombudsperson, and clergy acting in their religious capacity (see Confidentiality below). These staff members maintain strict confidentiality and will not share the report with OSC. However, when a student reports sexual misconduct by another student to any other Duke employee, that employee is expected to report the behavior to OSC. OSC will contact the reporting student before deciding how to respond.

A: Duke is committed to providing a safe environment for all. Therefore, to the extent possible, the Office of Student Conduct will attempt to follow up in some way on all incidents of sexual misconduct it knows or reasonably should know about, including anonymous reports. However, it may be difficult to do so— and particularly to conduct an investigation— without knowing the name(s) of the affected individual(s) or, if known, without the participation of the affected individual(s).  If OSC does know the name of the individual(s) who may have been subject to sexual misconduct, OSC will attempt to contact that individual before deciding how to proceed.

OSC will consider a number of factors in determining whether and/or how to conduct an investigation when there has been no formal report.  This includes both individual and multiple anonymous reports against the same student or group of students.  These factors include:  the nature and seriousness of the alleged misconduct, previous criminal or disciplinary history of the accused individual(s), previous complaints against the accused individual(s), use of a weapon, age of the individual(s) subject to the alleged misconduct, threats of further sexual misconduct, number of accused individuals, circumstances that suggest there is an increased risk of future acts of sexual misconduct under similar circumstances (a pattern of perpetration at a given location or by a particular group), the level of specificity or detail of the reports, the degree of similarity between the reports, the willingness of any individual named in the report(s) as having been subject to misconduct to participate in the investigation, and whether the accused individual(s) can be given sufficient information to be able to provide a meaningful response to the allegations. In cases in which OSC determines that it is not able to pursue an investigation, it may still be able to provide an educational response, e.g., through programming, counseling, and discussion with the individual(s) who may be involved or with the community.

A: OSC will attempt to preserve the confidentiality of the complainant and/or respect a request for limited or no action except when, in the university’s judgment, doing so would jeopardize the safety of members of the university community. OSC will use the factors listed above in evaluating the request.

A: A complainant may file a report with either OSC or, for possible criminal misconduct, the appropriate law enforcement agency (e.g., Duke University Police Department, 919-684-2444; Durham Police, 919-560-4322 or 911), or both. At the student's request, campus authorities will provide assistance in notifying the police. Whether the student reports to OSC or Duke Police, the student will be given a written explanation of their rights and options.

A law enforcement agency (e.g., Duke Police or Durham Police) is responsible for investigating criminal activity; OSC is charged with investigating reports of violations of university policy. Where reports are made to both police and OSC, there may be concurrent investigations, even if the police report results in a criminal prosecution. The university will comply with North Carolina law in recognizing protection orders. Note that a law enforcement agency pursuing a report for possible criminal prosecution will not, as a matter of course, share with OSC information it learns during that agency's investigation. OSC will maintain the confidentiality of information OSC learns during the course of an OSC investigation in accordance with the Family Educational Rights and Privacy Act (FERPA). Additional information about FERPA can be found at https://registrar.duke.edu/student-records.

A: In general, parents are not notified when reports are filed with any office (confidential or not confidential). Exceptions to this rule may apply when the individual affected by the alleged conduct is a minor and when the report involves a serious threat of harm to self or others.

 

Support for Individuals Affected by Alleged Misconduct

A: Students of all sexual and gender identities and expressions can seek support from the Women’s Center. This includes those directly subjected to sexual misconduct and their supporters.

 

Support for Respondents

A: Being accused of sexual misconduct can be a difficult experience. The university provides a number of supports to respondents to help them manage during and after the disciplinary process. These include CAPS, DukeReach, the Director for Title IX Compliance, Disciplinary Advisors, community resources, academic accommodations, and housing accommodations, as appropriate.

 

Investigation

A: After it receives a report, the Office of Student Conduct typically meets with a complainant and respondent separately in order to review the disciplinary process and to hear an overview of each party's account of the incident. Immediate, interim, and/or long-term measures may also be discussed. The Office of Student Conduct may use any information gleaned through this and/or subsequent meetings with the complainant/respondent in the disciplinary process.

If the Office of Student Conduct determines further investigation is warranted, it will refer the report to the Director of Title IX Compliance, who will assign the case to an investigator from the Office for Institutional Equity. The investigator interviews witnesses, collects additional information, and submits a written report of relevant information to the Office of Student Conduct. The Office of Student Conduct will review the report for completeness and relevance and direct further investigation as necessary before the report is shared with the complainant and respondent, who will have an opportunity to respond in writing to the report.

A: The university will not share any information about an investigation or hearing with the public, unless as required as part of a court proceeding. All participants (including the complainant and respondent, witnesses, advisors, and members of hearing panels) in any part of the investigation or hearing process should respect the privacy of the proceedings and circumstances giving rise to the report.

A: OSC will notify the respondent of the complaint as soon as possible after receiving a report. Generally, OSC will first meet with the complainant and then notify the respondent of the complaint and arrange a separate meeting with the respondent. However, there may be exceptions, e.g., where there is a concern for the health and safety of either party or where Duke Police or Durham Police have asked us to hold off in contacting the respondent.

A: As a matter of practice, once a student submits an initial statement, it cannot be revised. However, after receiving the investigator's final report, a complainant and respondent have five business days to respond in writing to the report with any clarifications, witness statements, or other information. After the five-business-day deadline, the complainant and respondent may not provide any additional information for the hearing packet and may not produce any additional material at the hearing, unless that information was not reasonably available prior to the closing of the five-day window. The hearing panel or the Office of Student Conduct, as appropriate, determines whether to grant exceptions to this five-day deadline. The Office of Student Conduct will determine what, if any, changes or additions are made to the investigator's report based upon its review of the report and feedback as described above from the complainant and respondent.

A: No student is required to participate in the process. If the respondent chooses to not participate in any part of the process (including the investigation and/or hearing), the case will continue without the benefit of the respondent’s input and a resolution will be determined based on the information that is available.

A: Both police departments are fully accredited agencies of the State of North Carolina. Duke Police has jurisdiction for crimes that occur on Duke property. Durham Police has jurisdiction for crimes that occur in Durham, not on Duke property.

 

Advisors

A: Complainants and respondents have the right to an advisor of their choice. The advisor may be anyone— parent, attorney, assigned Disciplinary Advisor through the Office of Student Conduct, or any other person. During meetings and a hearing, the role of the advisor is limited to quietly conferring through written correspondence or whisper with the student he/she is advising; the advisor may not address any other participant or the hearing panel.

A: Disciplinary Advisors are assigned to complainants and respondents by the university to help complainants and respondents understand the policy and the disciplinary process. They are Duke employees who have been trained on the Student Sexual Misconduct Policy and the process for investigating and adjudicating a sexual misconduct case. An advisor may also attend any meeting and/or hearing with the complainant or respondent. However, they are not advocates for and do not represent the parties.

A: Yes, but only one person may accompany you to meetings and a hearing.

A: When the investigator’s report is shared with the complainant and respondent, OSC will ask the parties to provide the name of the advisor (if any) who would be attending a hearing with their respective party, should the matter proceed to a hearing. This information is due within five business days to OSC, who will then share the name with the other party. If one party will be accompanied by an attorney to a hearing, the other party may request that the scheduling of a hearing be briefly delayed to allow that party to seek an attorney to accompany the party to the hearing. (The length of such a delay is at the discretion of OSC). Duke University does not provide an attorney for either the complainant or respondent.

 

Hearing

A: After investigation of a report, OSC will decide whether there is sufficient information to believe that a policy violation may have occurred such that the case should proceed to a hearing. For example, a report will not go to a hearing if the alleged conduct, even if true, was not sufficiently serious to create a hostile environment or involves conduct that is appropriate to legitimate academic and related discussions. In some of these cases, OSC may nevertheless determine that an educational non-disciplinary response is appropriate. In any event, as explained in the Policy, the parties may ask OSC to reconsider a decision not to proceed to a hearing.

A: A well-trained hearing panel is critical to providing students with the confidence that our procedures for resolving complaints are fair and balanced. Panelists are selected from the Undergraduate Conduct Board; as such, they are trained annually on the university’s student misconduct policies generally, including on how a hearing is conducted and their role in the hearing. They then receive additional training specific to adjudicating complaints of sexual and related misconduct. Together, the training covers how a hearing is conducted; their role in the process; preparation for a hearing; how to evaluate evidence; privacy and confidentiality; conflicts of interest; the importance of ensuring a fair process for both parties; the requirements of Title IX, the Violence Against Women Act, and Duke’s policies; 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; tips on questioning; determining relevance and assessing credibility; and sanctioning.

A: No. The complainant or respondent may request to participate in the hearing via video/audio conference. If both parties choose to be in the hearing room, an opaque screen separates the two parties so neither can see the other. 

A: Hearings are scheduled to commence weekdays between 8 AM and 5 PM. The conduct officer will attempt to schedule a hearing that does not conflict with the complainant's or respondent's class schedule; however, this is often not possible. Under university policy, a student scheduled for a hearing before a hearing panel is excused from all other university obligations that may conflict with the hearing. Therefore, a student should request that a hearing be rescheduled only under extraordinary circumstances, including if the complainant or respondent has just been informed that the other party will have an attorney present at the hearing as that person's advisor (see “Does a complainant or respondent have to let the Office of Student Conduct know the name of the advisor who will be accompanying the complainant/respondent to a panel hearing?” above).

A: The duration of a hearing varies. Most hearings will last at least two hours; an average is five to six hours long. More than eight hours is rare. There are frequent breaks during the hearing, during which the parties leave the hearing room and go to separate waiting areas where they each may confer with their advisor. The complainant/respondent may also ask for a break at any time.

A: The hearing audio is recorded. Only OSC, the Appellate Board, the complainant and the respondent (and the complainant’s/respondent’s advisor) may listen to the recordings. A complainant/respondent should make an appointment with OSC to come into the office to listen to the audio. A copy of the audio is not provided and may not be made by the complainant/respondent or advisor.

A: If the complainant wants the hearing to take place but does not want to participate, the hearing may go forward if the investigation disclosed sufficient information to suggest the possibility of a policy violation and if there is enough information to allow the respondent to provide a meaningful response to the allegations. The respondent will be able to question the investigator as to the information provided by the complainant during the investigation.

If the complainant asks to withdraw the matter after the investigation has begun, the complainant will be informed that the matter can't be pursued again unless there are extraordinary circumstances such as new information not reasonably available before the request for withdrawal, or medical documentation showing that the complainant was unable to participate in the process.

If, after the investigation, the complainant asks OSC to drop the case, OSC will respect the wishes of the complainant except in extraordinary circumstances (e.g., when OSC feels it is necessary to proceed for the safety of the campus community).

A: A “preponderance of the evidence" standard means that the threshold for a finding of responsibility is "more likely than not." Through its investigation, Duke will attempt to collect all relevant information, including (but not limited to) information from the parties. The hearing panel will base its finding on this information using the preponderance standard. This is true for all sexual misconduct cases (and in all other cases alleging discrimination or harassment based on, e.g., race, national origin, or disability). In other conduct cases, such as academic dishonesty cases, the university uses a more stringent standard of proof referred to as “clear and convincing.” As the name implies, the university will only find a violation if the available information clearly and convincingly establishes that a policy violation occurred. Criminal proceedings, including those involving sexual assault, apply the strictest standard of proof: the prosecution must establish beyond a reasonable doubt that the defendant violated the law.

A: Allegations of all policy violations originating from the same incident will, where practical, be adjudicated by the same hearing body. Charges of violations of the Sexual Misconduct Policy, as well as of harassment for any reason (including race, national origin, or disability) will be adjudicated under the “preponderance” standard. Allegations of other policy violations (e.g., of the Drug Policy) will be evaluated under the “clear and convincing” standard.

A: Yes. OSC will consult with the Student Disability Access Office to determine what accommodations might be reasonable based on documentation provided by the student regarding the nature of the disability and its impact on the student’s ability to participate in the proceedings.

 

Sanctions

A: Sanctions for a finding of responsibility include expulsion, suspension, disciplinary probation, recommended counseling, and educational sanctions such as community service, readings, and papers. The sanction will vary depending on such factors as the nature of the conduct, prior disciplinary history, acceptance of responsibility, precedent, the complainant's perspective, and the university's interest in providing a safe environment for all.

For example, and depending on these and possibly other factors, a finding of responsibility for sexual violence (including sexual assault), relationship violence, and stalking could range from a one-semester suspension to expulsion; educational sanctions would accompany any suspension and would have to be completed before the respondent could apply to return to Duke. A finding of responsibility for sexual harassment such as frequent unwelcome comments about an individual's sexual orientation could range from community service to a suspension of one semester or longer as well as educational sanctions; again, the sanction would depend on the factors set out above.

 

Recordkeeping

A: OSC records include information identifying the individuals involved, investigative steps taken, documentation received, individuals interviewed, decisions reached, and the reason(s) for those decisions. When a student is found responsible for sexual misconduct, OSC will keep records regarding the matter for eight years from the date of the respondent’s matriculation, or indefinitely in cases of suspension or expulsion. When a student is found not responsible, no reportable disciplinary record is kept. However, OSC will retain information about the alleged incident for consideration in the event of future complaints against the respondent, for as long as the respondent is a student at Duke. Records of reports that do not result in an investigation will also be kept for the same reason.

 

Getting Help

A: Getting medical attention after an incident of sexual violence is important. Early medical attention provides the most options for the prevention of pregnancy and sexually transmitted infections. A student does not have to file a report with the police or OSC in order to seek medical attention. The Emergency Department can provide medical care, evidence collection, emergency contraception, and sexually transmitted infection prevention. Evidence can be collected anonymously and is best collected within 120 hours of the assault. In appropriate circumstances, the university will work with students to cover the costs of medical exams and related treatment. No one will be denied treatment because of financial need. Contact the GVPI Coordinator in the Women’s Center (919-970-2108) for more information.

A: Yes. Duke will provide reporting parties with written notification of their options for available assistance both within the university and in the community, and will comply with a reasonable request for interim measures. Examples of interim measures include “no contact” directives (see below), options to change academic classes (i.e., to not be in the same class), changing residence halls (i.e., to not be in the same residence hall or area), and other academic support as needed. These measures may be available to the individual affected by the alleged misconduct even when there is no formal report to OSC or when there is no OSC investigation.

OGVPI, OSC, and OIE can arrange for such measures, and will take steps to ensure that only that information necessary to provide the interim measures is disclosed. In deciding which measures to provide, they will consider such factors as the specific need expressed by the complainant; the age of the students involved; the severity, persistence, or pervasiveness of the allegations; any continuing effects on the complainant; whether the complainant and alleged perpetrator share the same residence hall, dining hall, class, transportation, or job location; and, whether judicial measures have been taken to protect the complainant (e.g., civil protection orders).

A: “No contact” directives (or “no contact” orders) are not disciplinary in nature; they do not create or appear on a student’s disciplinary record. They are measures put in place to provide physical and digital distance between complainants and respondents. A “no contact” directive instructs both parties not to have any physical contact or communication. They are to have no contact by telephone, in writing, by email, through web pages, or through any other means, including third parties. "No contact" directives apply to contact through all forms of social media, including where one party "likes" the other party's Facebook status, retweets the other party's tweet on Twitter; "favorites" the other party's post on Twitter, "likes" the other party's Instagram post, and views the other party's story on Snapchat. Violation of a “no contact” directive may result in immediate removal from campus and disciplinary action.

A: Parents of both complainants and respondents are encouraged to provide support to their student. If they have concerns about the student’s emotional well-being, they can contact DukeReach at 919-681-2455 or email dukereach@duke.edu. DukeReach can identify support and assistance for students in need. Duke will work with parents of minors throughout the complaint process.

 

Education and Prevention

A: Duke has a number of programs to prevent student sexual misconduct, raise awareness, and reduce risk. These include "Prevent. Act. Challenge. Teach." (P.A.C.T.) bystander intervention training (recognizing situations of potential harm, understanding institutional structures and cultural conditions that facilitate violence, overcoming barriers to intervening, identifying safe and effective intervention options, and taking action to intervene) and programs on healthy relationships offered by the Women's Center; Haven and Haven Plus, online training that all entering undergraduate, graduate, and professional students are expected to take; live orientation sessions for graduate students; UASK Duke, a safety-related app providing resources and information on reporting; a centralized website (https://studentaffairs.duke.edu/sexual-misconduct-prevention-and-response) providing information about all of Duke's policies, educational programming, and awareness activities regarding sexual misconduct; and, online AlcoholEDU and other training on responsible use of alcohol and other drugs offered by the Wellness Center.