One of the three sets of ongoing controversies involving Virginia’s highest-ranked elected officials—Governor Ralph Northam, who wore blackface in the 1980s to impersonate Michael Jackson, had a medical school yearbook page that featured a photo of a man in blackface and another in a Ku Klux Klan hood, and who on Sunday referred to slaves as “indentured servants”; Lieutenant Governor Justin Fairfax, who has been accused by two women, Dr. Vanessa Tyson and Fairfax’s former Duke University classmate, Meredith Watson, of sexual assault in 2004 and 2000, respectively; and Attorney General Mark Herring, who wore blackface as an undergrad at UVA in 1980 as part of a rap artist impersonation—could lead to a sports legal controversy involving the nation’s top college basketball program. Sexual assault allegations brought by Watson against Lt. Governor Fairfax connect to the Duke University men’s basketball program.
Watson’s statement, as drafted by her attorney, Nancy Erika Smith, contains two rape allegations. The first accuses Fairfax and the second refers to an unnamed Duke basketball player, who Watson says assaulted her in 1999. Watson, who The Washington Postreports majored in psychology, also asserts that she notified “the Dean” about the alleged rape by a basketball player. This dean, who Watson does not name and who could refer to different types of deans, advised her to drop the topic. Watson says she also confided in Fairfax, who Watson contends then became more confident that he could force Watson into non-consensual sexual relations. According to Watson, Fairfax felt that because she was “too afraid to say anything” about the basketball player raping her he, too could rape her without getting into trouble.
Here is the relevant portion of Watson’s statement:
Ms. Watson was raped by a basketball player during her sophomore year at Duke. She went to the Dean, who provided no help and discouraged her from pursuing the claim further. Ms. Watson also told friends, including Justin Fairfax. Mr. Fairfax then used this prior assault against Ms. Watson, as he explained to her during the only encounter she had with him after the rape. She left a campus party when he arrived, and he followed her out. She turned and asked: “Why did you do it?” Mr. Fairfax answered: “I knew that because of what happened to you last year, you’d be too afraid to say anything.” Mr. Fairfax actually used the prior rape of his “friend” against her when he chose to rape her in a premeditated way.
It does not appear that either sexual encounter led to criminal charges. It is also unclear if either became known to law enforcement, hospital staff or university counseling services. Fairfax denies that he committed rape.
Duke coach Mike Krzyzewski, who has coached the Blue Devils since 1980, told ESPN’s Myron Medcalf on Saturday that the first time he heard of the basketball player rape allegation was through Watson’s statement. Krzyzewski also stressed that the allegation is highly troubling and he pledged that university officials will look closely into it.
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 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.
Title IX applies to programs or activities of the university, and generally governs sexual violence committed by one student against another. Title IX commands universities and relevant administrators to actively respond to allegations of such violence—including through coordination with law enforcement. Further, Title IX requires universities to remedy hostile environments that led to sexually violent acts.
Under the Clery Act, which has no statute of limitations for filing complaints but has been interpreted to have a five-year window for government fines, as well as under the Clery Act’s accompanying Campus Sexual Assault Victims' Bill of Rights, Watson should have been treated far better by Duke after she says she notified an administrator. For one, Duke should have informed her of options to notify law enforcement. The school should have also offered her counseling services and the opportunity to change her academic and living situation. Likewise, the incident may have been a required data point for Duke’s publicly-disclosed crime statistics.
Duke also has a detailed student sexual misconduct policy and accompanying set of procedures and reporting responsibilities. Duke will now attempt to uncover what took place in 1999 and whether the school and its officials failed to act properly.
Duke’s investigation will attempt to amass as many facts as possible. To that end, university officials will probably ask to speak with Watson and her attorney. Such a conversation would be critical for fact-finding. This is especially true since two decades have passed since the alleged incident occurred. Human recollections, physical evidence and witness availability might not have withstood the passage of time. Indeed, any Duke employees familiar with Watson’s accusation may no longer be employed by the school; some might no longer be alive or well-enough to accurately recall an incident from two decades ago. The current set of Duke administrators and legal counsel are almost certainly different from those who held their positions in 1999. Whether an incident occurred as Watson alleges, current officials might not know about it or have reason to know.
The university will likely also seek any and all relevant records from relevant Duke departments and administrators whom Watson might have consulted in 1999. Such entities and persons would include: the campus police department, the university hospital and its emergency room, the Title IX coordinator, student health services, the office of student affairs, the office of counseling and psychological services and the office of gender violence prevention and intervention.
The university will probably also contact the registrar’s office in order to obtain academic records related to Watson. These records could include the identity of her academic advisors as well as other persons who may have advised her. The name of the dean with whom Watson confided, if that information is not already known to the school, might be obtained through this method of fact-finding. Further, Duke officials could ask their information technology department to search the duke.edu server for any relevant emails from Watson’s university email account and those of basketball players.
The university will also turn to the Durham Police Department to assess if they are aware of an alleged incident. It’s not clear if the alleged rape by the basketball player occurred on-campus or even in Durham.
Duke will likely also interview Krzyzewski and other basketball coaches and athletic department staff who have remained with the school since that time. School officials will want to know the basketball program’s methods and procedures for handling sexual misconduct complaints and related accusations. Given the seriousness of a rape allegation and given Krzyzewski’s control over the men’s basketball team, it would seem likely that if anyone from the Duke athletic department had been made aware of the allegation in 1999, Krzyzewski would have been promptly informed. Also, even though 20 years have passed, Krzyzewski would presumably be able to recall such a disturbing accusation if he had been notified at the time.
It’s worth emphasizing that Duke’s interest in the accusation is not only to determine if the accusation is true. As described above, the university will want to assess if its administrators complied with relevant laws and university policies. Such an investigation could last multiple weeks or months. Along those lines, assessing what took place in 1999 will be difficult. An accusation of sexual assault can be difficult to prove or disprove, especially if the parties agree that sex occurred but disagree about whether there was consent.
Duke is also surely mindful of its past experiences with sexual assault accusations brought against student athletes. In 2006, a group of Duke lacrosse players were falsely accused of rape. The accusation set off a media controversy that spiraled into a multi-year fallout. While the nature of those allegations are dissimilar from the one brought by Watson, the university and its athletic department will tread carefully in how it approaches a new controversy.
SI will keep you updated on developments in the investigation.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.