Last week, a candidate for Duke University’s student government dropped from the race after flyers were hung around campus that said he had been suspended from campus for a semester for sexually assaulting another student, The Duke Chronicle reports.
The candidate has denied the accusations, but the incident has prompted students on campus to ask whether student government has any means of learning whether candidates or elected students have been found responsible for sexual assaults or other disciplinary action.
The school’s incoming student body president, Stefani Jones, told the paper that student government would have no way of learning about a candidate’s disciplinary history.
“Even if we wanted to create a policy about [those found responsible for sexual assault or harassment], it would be impossible,” Jones told the paper, citing FERPA. “We would never know which students were in violation of that policy…. If it existed, it could never be enforced.”
Source: The Duke Chronicle, Duke student government cannot access candidates’ history (April 8, 2013)
SPLC Attorney Advocate Adam Goldstein: Obviously, we need to talk about this topic in the abstract–since I’m not a prosecutor looking to make my reputation, I don’t want there to be any confusion about the fact that I’m talking about hypotheticals.
But it turns my stomach to hear people assert that FERPA would be an obstacle to learning whether someone has been suspended for rape. Partially because that’s incorrect; FERPA does not prevent an institution from disclosing the final result of a disciplinary proceeding where someone has been found responsible for a rule infraction that is also a crime of violence. See 20 U.S.C. Sec. 1232g(b)(6)(B).
Mostly, however, this upsets me because it suggests there’s some kind of academic right of privacy in rape. There isn’t. At all. Ever.
There are four valid answers Duke could give the student government if it requested copies of the outcome of a disciplinary proceeding against a candidate:
- “Here’s a copy of the final outcome.” This would apply if the person was found to have committed a crime of violence.
- “I can’t give you those records because of FERPA.” This would apply if the person was not found responsible, or they were found responsible of a non-violent offense (for example, if they were found to have tresspassed).
- “There are no such records.” Meaning there never was a disciplinary proceeding.
- “We aren’t going to tell you because Duke is a private institution and we don’t have to.” If Duke feels an overwhelming urge to protect the rapists in its school, I suppose it’s legal to do this. It’s a pathetic, shameful answer, but it’s legal.
Nobody has a right of privacy in being a perpetrator of sexual assault. That’s an asinine position. That’s like saying you should have a right of privacy in robbing banks, or a right of privacy in treason. The entire point of criminalizing conduct is that we want to find those people and remove them from the streets.
I know that people are going to tell you that, in the name of campus safety, it’s important that we work hard to keep secret the names of rapists on campus. I suggest you find those people and ask them what the hell are they thinking.
