Federal Judge Stops Expulsion Of Duke Student Over Lack of Basic Due Process In Alleged Sexual Assault Case

Unknown-2I have previously written about my concerns over the elimination of basic rights of due process at universities for students accused of sexual assault or harassment under pressure from the Obama Administration. That pressure continues to build this year with the Obama Administration investigating dozens of universities and threatening to take away federal funds if they do not remove certain protections under their rules of adjudication. Now a North Carolina judge has issued a rare order enjoining Duke University from expelling a male student, Lewis McLeod, who was accused of raping a female freshman. The concern over the lack of due process afforded the accused is of course a continuation of the criticism of Duke over its handling of the infamous Duke lacrosse team case. I have previously written about my view that Duke abandoned not just those students but any sense of due process or fairness in joining the mob accusing them of raping a stripper.

Superior Court Judge W. Osmond Smith III on Thursday rejected Duke’s effort to dismiss a lawsuit filed by McLeod who says that the university violated its contractual obligations in expelling him. Notably, the standard is a high one but the court concluded that “The plaintiff has demonstrated a likelihood of success on the merits as to his contentions that the defendant has breached, violated, or otherwise deprived the plaintiff of material rights related to the misconduct allegations against him and the resulting disciplinary process addressing such allegations.”

The university has a rule making expulsion the default punishment for a student it found culpable of sexual misconduct. He was accused of raping a freshman while she was intoxicated after the two met at a campus bar. They both took a late-night cab back to his fraternity house. However, the police rejected the criminal charge after an investigation. McLeod insisted that the sex was consensual. Duke however says that sex under the influence of alcohol is not consensual –even when both students were drinking but only the male is charged. That triggers the default expulsion provision.

I have objected to the rules at George Washington in writing for many of the same failings. Duke is particularly problematic in its default provision because it would effectively give one party control of the outcome. Here both parties were drinking and both went by taxi to the room. Such cases are very difficult to adjudicate despite our collective concern over sexual assaults at universities. It is for that reason that the pressure from Obama Administration is so problematic in my view.

In this case, a three-member Duke disciplinary panel ruled that the female student “had reached an incapacitating level of intoxication that rendered her unable to give consent to sex.” However, McLeod insists that the panel would not interview key witnesses, including fraternity brothers at the house that night. However, it did rely on an anonymous second-hand account of a witness for the accuser. He also says that the panel discouraged him from seeking legal advice. Those are very common objections leveled against universities under the new rules being promulgated on campuses.

As academics, we have a special obligation to protect our students. This includes responding such allegations immediately and protecting alleged victims. It also means protecting the rights of the accused. Duke has one of the worst reputations in this area for disregarding the rights of the accused in such cases.

Frankly, colleges and universities have been intimidated by the Obama Administration’s insistence that schools strip away protections for students accused of sexual assault. Presidents of colleges and universities tend to look at the bottom line and see millions at stake. Rather than risk the revenue, they are throwing these students under the proverbial bus. These are life changing decision for the students — leaving a stigma that will follow them for many years. It is possible to aggressively fight sexual misconduct and assault without disregarding basic rights of adjudication. What advocates are seeking is guarantees of expulsion and discipline by stripping out access to witnesses, counsel, and other protections.

I have long viewed academia as a place where we strive to create special zones of free speech, fair treatment, and due process. We teach the ideals of society and create an environment reflecting those ideals. That includes an absolute commitment to identify and expel anyone who is assaulting or threatening our students. These new rules are designed to be outcome determinative and leave little ability of the accused to present a full defense. To put it simply, it is wrong and there has been little debate over the Administration’s campaign in this area. It is worthy of a congressional hearing where people of good faith can discuss how to reconcile our commitment to protect students from assault and our commitment to due process for those accused for such acts.

47 thoughts on “Federal Judge Stops Expulsion Of Duke Student Over Lack of Basic Due Process In Alleged Sexual Assault Case

    • mespo – surely the statute of limitations is up, or is yours one where the extended the limitation to ‘forever.’ 😉

  1. Sorry, Mary, but if you don’t believe that young, naive women can be regularly plied by young men with alcohol to do things they would never do sober, you’ve never been to a college campus.

    • mespo –

      mespo727272
      Sorry, Mary, but if you don’t believe that young, naive women can be regularly plied by young men with alcohol to do things they would never do sober, you’ve never been to a college campus.

      Are you speaking from personal experience?

  2. I knew a girl that was gang raped in a frat house a week or two into her first year at Berkeley. 6 or 7 frat boys got her drunk and then raped her with a 40 oz beer bottle. She was a bloody mess afterward because they didn’t bother to remove the metal band that remains on the neck of the bottle after the cap is twisted off.

    She reported the assault to the university the next day, but was reluctant to follow up on it because of the shame it would create. Nine months or so later, during the course of counseling, she developed the strength to follow through on it and the University told her that they had already investigated it and closed the case. As punishment, the frat boys involved were each required to write a report on the effects of alcohol. No police report had never been filed and the University told her that it wasn’t really rape since she went and ate fast food with her friends afterward.

    So, is the Obama admin requiring undue penalties for accusations of rape? I don’t care.

    • lester – there are certain things that raped women do after the rape. One of them is NOT going to eat fast food with their friends.

  3. hmmm, the victim first went to the cops who turned her away, then she went to the university. At least the university did something. btw, the judge indicated that Duke could expell him but they didn’t have to give him a diploma because the incident wasn’t fully resolved.

  4. Why is the university investigating criminal conduct? Why are they not reporting such incidents to the police? In this case the university did an investigation that showed the the male student was culpable but he claims his right to a defense was ignored. Bad move by the university if the student is telling the truth.

    I believe the victim because freshman females are frequently targeted by predatory upper-class males, in this case a senior. It is the freshman women that are the least experienced in drinking alcohol and more easily influenced to drinking too much. The senior has had 4 years of practice. I wonder how many other women he has raped?

    • bettykath, if we want to be fair, don’t we have to also ask how many other males has the victim accused?

  5. I can’t believe I have to point this out, but when the story is made up, the “victim” is in no way a victim. Only a feminist would need this pointed out.

  6. mespo727272

    Sorry, but Simms’ analogy holds and you are making excuses for childish and dangerous behavior, as if it is an uncontrollable part of every day life that a man can ply a woman with drinks. oh please.

    To both Simms and ShakingMyHead, thank you for your comments.

  7. as a victim of rape i totally agree with simms comment. women who drink or drug and wake up the next day regretting it. should not be given prefernce her regret should have began before she picked up that drink or drug. they are worse then an affront to those of us raped by force against our will with no drink or drug to numb the pain, humiliation or memories

  8. Universities need to balance their role as bastions of liberal thinking with the reality that there is a lot of dumb stuff going on at their campuses and the dumb stuff is not limited to the students. I once heard a student blame Abe Fortas’ forced resignation from the Supreme Court on anti-semitism. I thought that comment was uninformed, indeed idiotic, but then again, the professor was wearing a Nehru suit. So, by comparison, maybe the comment wasn’t so idiotic after all. Besides, it might have been April Fool’s Day or Halloween. I don’t remember.

    Turning to the problem, I propose the following solution: whenever someone on a college campus comes up with a truly stupid idea, something obviously counter-intuitive like, for example, shifting the burden of proof in cases where the alleged victim is intoxicated, anyone can publicly challenge the idea as being ignorant. The challenge would be posted in a prominent place in the school newspaper reserved for such matters. The proponent of the moronic idea has the burden of showing his concept is not totally stupid, a fairly minimal burden, but a burden nevertheless. If he or she fails, he or she must wear a Nehru suit for the remainder of the semester. If a Nehru suit cannot be procured at a reasonable cost, the costume of the Duke mascot will suffice.

    • Vince – a Nehru jacket is retro but they do look nice on the right people. 🙂

  9. Paul — of course consumption of the same amount of alcohol does not necessarily lead to the same level of intoxication given different body weights, metabolism, etc. But, I suspect you really meant was if the man was just as intoxicated as her then neither party would be able to consent. I don’t think that’s what the evidence showed, but if that were the case then I’d agree neither party would be able to consent. I don’t agree with the conclusion that both parties would then be guilty of rape, however, as one person may be completely passive while the other is active and I think criminality is dependent upon some criminal action, an actus reus. That then leads back to the mirky world of what exactly happened in this particular case.

    • Waldo – there was NO investigation by the university. Active or passive, if you are too drunk to give your consent, it cuts both ways.

  10. I may be from an older generation but women cried for equal rights. I still believe in opening doors for ladies, not cussing or embarrassing remarks around ladies and men taking a leading position. All women can seem to do now is cry foul and take what men have worked hard to build up. If a woman is man enough to go drinking to the point she does not know what she is doing, she better be on birth control pills. I am painfully aware of three (3) generations of women that abused drugs and alcohol then cried rape to get public assistance. I have a documented police report as proof.

  11. Ben, PC. Men are animals and women need to be protected from animals. That was an easy question!

  12. But the issue here is not ‘did he rape her?’, but ‘why is the university treating him like a rapist if the law is not doing so?’

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