This could be controversial: A North Carolina judge has blocked the expulsion of a male Duke University student accused of raping a fellow student. The ruling comes as Education Department efforts to micromanage campus sex crime policies have produced passionate debate over the role and responsibilities of colleges in handling rape and sexual assault claims.
In this case the accused student, Duke senior Lewis McLeod, claims the university expelled him without due process after he was accused of raping a female freshman. Superior Court Judge W. Osmond Smith III found McLeod "demonstrated a likelihood of success" concerning contentions that the school "breached, violated, or otherwise deprived the plaintiff of material rights related to the misconduct allegations against him" and granted a preliminary injunction against the expulsion.
The decision means McLeod, an Australian citizen in the U.S. on a student visa, can remain at Duke for now.
His attorney, Rachel Hitch, told the Wall Street Journal that McLeod's case marks the first time Duke has enforced a year-old policy making expulsion the default punishment for a student found guilty of sexual misconduct.
The female student, whose name has been redacted from court documents, accused him of raping her while she was intoxicated after the two met at a campus bar and took a late-night cab back to his fraternity house. After police investigated her claim but declined to file charges, she reported the matter to the school's student conduct office. Mr. McLeod claims the sex was consensual and came to a stop after she started crying.
Duke considers sexual conduct to be "without consent" if an individual is "incapacitated due to alcohol or other drugs." But it also notes that "being intoxicated does not diminish one's responsibility to obtain consent," which is a bit of a puzzling standard. "The perspective of a reasonable person will be the basis for determining whether one should have known about the impact of the use of alcohol or drugs on another's ability to give consent," the student disciplinary code offers.
In March, a three-member Duke panel ruled that the female student "had reached an incapacitating level of intoxication that rendered her unable to give consent to sex," and that "a reasonable person would have known [complainant] was too intoxicated to be able to give consent." McLeod complained that the panel refused to hear from witnesses who were at his fraternity house the night of the alleged rape and could have attested about their intoxication levels.
Reason has covered campus sexual assault policies frequently. In the January 2014 issue, Cathy Young looked at how student judicial systems can fail those accused of sexual misconduct, noting that codified consent policies are reigniting the campus rape debate spurred by Katie Roiphe et al. in the 1990s. In May, Cathy Reisenwitz explored how government policies have driven us to such a shoddy campus rape investigation system, which isn't terribly awesome for victims of sex crimes either.
I'm with Reisenwitz in believing campus sex crimes should be dealt with like most sex crimes: by the police.
"We could get upset that most students found guilty of raping other students aren't expelled," wrote Reisenwitz. "But what good does it do to send a rapist home, as if without a campus they couldn't find someone to rape?" If a student is accused of sexual assault, he or she should face the same potential legal consequences as those accused outside the university system—and be accorded the same due process rights.
The Obama administration, however, seems to think universities just need more government oversight and guidance. Over the past few months, the Department of Education has found Tufts University and more than 55 others to be in possible violation of Title IX due to their (mis)handling of campus sexual assault cases. The White House, meanwhile, has been offering vague recommendations to colleges about enacting more sexual assault prevention programs and, as always, conducting more surveys on the issue.