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”

  1. Simms:

    “If, instead of going to the fraternity house with McLeod, this woman had gotten into her car, driven off and slammed into another car, killing the driver, should she be held responsible for driving drunk?

    How can she be held responsible for her own actions in one instance and not the other?”


    Well that’s a fine apples and oranges comparison there, Simms, and a fine example of blame the victim if, in fact, she is one. To complete your silly analogy let’s say instead of returning to the frat house, our eager young missy got hammered and her new male friend plied her with drinks as they laughingly raced through the streets of the city. Under your logic she’s responsible for her actions but he’s not.

    In our rape discussion, it’s not an either-or situation: she can have been incredibly negligent in her actions and he could have still have raped her. Yours is the flawed logic of the false dichotomy with a little of the old “you-did-something-stupid-so you-deserve-what-you-got” argument so loved by our conservative brethren. The law protects philosophers and fools alike.

    Would you deny the man who left his keys in his car, the right to prosecute the thief who stole it? Why would you not afford this young lady the same right?

  2. And, just to add, of course the accused should have due process in any adjudication of guilt. It doesn’t sound like Duke did a very good job here, but we only have the accused’s side of the story as to that. Perhaps the panel should have a trained lawyer running the show, but everyone always complains about the USA being too legalistic. Of course, when you put amateurs in charge of these tribunals, don’t be too surprised when the quality of justice suffers.

  3. Tough case. Like most of such cases, there’s ambiguous evidence and the inherent difficulty in determining when does intoxication become incapacitation such that one cannot effectively consent to sex. If someone is near the line, then best to avoid having sex with them so that you’re not in this young man’s predicament.

    1. Waldo – assuming a similar amount of alcohol was consumed by both parties, then neither party was able to consent to sexual intercourse. Therefore, the girl is just as guilty of rape as the boy.

  4. How to underreport university crime statistics. Year 2006.

    A college being sued over a gang rape and for low-balling crime incidents agreed to pay a $20,000 penalty and establish better reporting policies.

    “When a college underreports crime statistics they put their students at risk,” NY Attorney General Andrew Cuomo (Now NY Gov. Cuomo) said in announcing the settlement.

    Megan Wright,19, had told school officials she was gang-raped at Dominican University in May 2006. Wright, of Ramsey, N.J., killed herself after prosecutors declined to bring charges.

  5. Kraaken, There were no consequences for the academia lynch mob @ Duke. Thusly, the lesson learned was “We can do as we please, we have PC on our side.”

  6. One would think that in light of the lacrosse team incident that they would be much more vigilant in how they treat alleged rape cases. Sounds to me like Duke has embraced the same ‘zero tolerance’ rules that we discuss all to frequently in regard to elementary and high schools.

    1. kraaken – you actually think Duke learned something from the lacrosse case? Silly boy 😉

  7. Anyone expecting universities to uphold and support civil rights absent outside force compelling them to do so should read up on the history of American higher education. Basically, most universities fold like cheap suitcases when faced with public pressure to ‘do something’.

  8. This student is expendable in the eyes of some in the university faculty.

  9. Does the victim have recourse to civil action? It would make that cushy new job less cushy.

  10. What pressure from the administration?

    What ever happened to resistance?

    Are you saying there was overwhelming big brother pressure or that the resistance was just too wimpy?

  11. It is the default position of universities to be anti-male, anti-white and anti-common sense.

  12. I recall reading an old English case in which the judge quite correctly said that the charge of rape is one quite easily made but exceedingly difficult to prove. He was right. These cases on campus almost always involve an intoxicant, a party and an issue of consent. You can’t stop parties but the move to end the culture of alcohol on campus is probably a step in the right direction to clear up the consent issue. Duke should have interviewed the defendant’s witnesses and encourage counsel. In their rush to judgment may have let a sexual predator off the hook.

  13. HR, the victim matters to the extent that the accused’s right to due process is honored.

    Simms, good comment.

  14. There is a statue of the Duke guy founder out in front of the school. He is depicted smoking a cigarette. Nuff said. That place is a disgrace to North Carolina.
    Maybe the guy was not consenting. Who says it was not she that was drunker than him? You can not consent at all if you had alcohol? No matter how little? What a dumb thing to put into a standard for expulsion. The Duke Founder was fond of saying: Pork em if ya gottem. My how times have changed.

  15. As a woman, I believe that it is a slap in the face to rape victims to allow a woman who regrets a drunken one night stand to file rape charges. I’m NOT talking about situations where the woman was involuntarily drugged or where there was force. I’m only talking about two drunk people having an ill advised sexual encounter. If a woman charges rape, of course there should be an investigation. But, absence proof of force or involuntary intoxication there should be no charges.

    If, instead of going to the fraternity house with McLeod, this woman had gotten into her car, driven off and slammed into another car, killing the driver, should she be held responsible for driving drunk?

    How can she be held responsible for her own actions in one instance and not the other?

  16. Whenever those behind a political agenda can’t restrain their natural propensity to abuse power, the outcome is certain critical mass, which creates a backlash, aided by defectors, that can’t be stopped until abuse is exterminated and victims vindicated. It’s a daily occurrence now to see abusers dropping like flies all over this nation. Once the power structure has come full circle, the perps will forever regret how they had relegated themselves to minority status. The English lost America only after abusing the colonists.

  17. Judge Smith is an elected state court judge from Person and Caswell counties in North Carolina. He was elected to the court in November 2002 and re-elected in November 2010. If he were a federal judge he would be appointed for life but as a state court judge is subject to stand for election by the voters from the district from where he is elected.

  18. What rights for the victim? Can she sue the university? Does she matter?

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