Rape

Judge Blocks Duke From Expelling Student Accused of Rape

|

Duke University/Facebook

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. 

NEXT: Video: Can You Fix the World with $75 Billion?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Good coverage from Durham’s local alt-weekly on the subject, pretty even-handed. (The comments are, well, contentious the last time I looked.)

    1. One of his complaints is the Duke updated its procedures for dealing with these cases, but didn’t publish the updated procedures in the student handbook / code of conduct.

      1. Seems to be SOP for these star chambers. No redress, no rights to question accusers, so not telling people the procedures seems like no biggie.

  2. 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.

    Puzzling indeed.

    1. Not if you want to stack the deck against men (drunk couple screw, only the man can be accused of rape if the chick feels bad a few weeks later).

      1. If they were both lit that night, then there should have been two expulsions.

        1. At the trial, according to the Indy story I linked above, Dean Sue made it clear that, assuming it’s a man and a woman, it’s the man’s responsibility.

          Same-sex accusations are different, apparently. Not sure how that flies.

          1. Wow, that harkens back to the old common law where penetration was something that had to be proved.

          2. Honestly, the attorneys for this kid have got to be absolutely salivating over the opportunity to present that as part of their Title IX claims against the school. It’s pretty much an open-and-shut admission of gender discrimination.

        2. Aye. Isn’t the woman just as guilty of raping him?

      2. You want the money quote re: that:

        Rachel B. Hitch, a Raleigh attorney representing McLeod, asked Wasiolek what would happen if two students got drunk to the point of incapacity, and then had sex.

        “They have raped each other and are subject to explusion?” Hitch asked.

        “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex,” said Wasiolek.

        1. And if two chicks get drunk and go for it? But I hear that never happens in college.

          1. That can’t be rape, there was no penis involved to serve as a lightning rod of feminists’ hate and pent up inadequacy.

            1. “penis involved to serve as a lightning rod”

              I see what you did there, naughty but made me laugh.

              1. Made me cringe. Ow.

        2. The obvious follow-up question: Why?

          1. I’d like to see the lawyer get Dean Sue to admit it’s “because men always want sex, but women have to be seduced into it.”

        3. “We’re equal to men, we can do anything that they can do, until it’s inconvenient.”

        4. What if she has a strap on gives it to him good?

    2. It’s an interesting philosophical question but I’m not sure it is so novel as a legal matter. We’ve long treated consent and intoxication differently for victims and the accused (think of an accused charged with statutory rape arguing that 1. he was drunk and so thought the girl was 18 and 2. the girl gave consent; that guy is going to lose).

      1. Remember this is about the craptastic quasi-legal system put in place by school administrators — not a true court and not much basis in common law.

        1. Remember this is about the craptastic quasi-legal system put in place by school administrators — not a true court and not much basis in common law.

          It’s tantamount to what the Catholic church did with pedophile priests.

    3. Obviously “incapacitated [emphasis added] due to alcohol or other drugs” is not the same as “intoxicated”.

  3. But that’s not fair. They no longer have a Nifong around to make it legit.

    1. Well, they had Tracy Cline, who followed Nifong, and then she was tossed out of office for suppressing exculpatory lab evidence. They just elected the new guy, who was a loyal lieutenant of both Nifong and Cline, over a defense attorney and a fired ADA who both tried to run on reform. (Well, just had the Dem primary, which is tantamount to election.)

      The local alt-weekly and the moderate conservative PAC endorsed the defense attorney, but the Durham Committee on the Affairs of Black People and the liberal PAC supported the loyal prosecutor.

      Another Nifong murder conviction from a while back was just overturned. Turns out that a guy who will railroad rich white defendants with expensive lawyers will do the same to poor black defendants with public defenders.

  4. So is it a breach of contract claim? Because that certainly flies. Otherwise private associations should be able to refuse to associate with customers or employees with as much or little due process as they wish.

    1. That works when there is free contracting, but there’s no such thing in this case. Even “private schools” still must comply with Title IX and myriad other Dept. of Ed. edicts.

      Given the immense nature of unholy mixing of government and major private universities, I question whether they should be held to a strictly private interpretation of the 1st Amendment, or whether they should be held to the standard reserved for the government.

      1. By that logic because every private enterprise must comply with OSHA, minimum wage laws, etc., then every firing should be held to governmental due process standards.

        1. In some cases, you at least incur civil liability. Trying firing a minority without rock hard evidence and see how long it takes to end up in court.

          I completely understand your point and agree as well, but OSHA and Dept. Ed. are like comparing a mosquito bite to a bullet wound. The Dept. Ed. has a much tighter stranglehold over the entirety of the university system than OSHA has over private companies. The two issues that I see are 1) the unholy union of private universities and FedGov; and 2) A moral/ethical issue that comes when this private university convenes a panel to convict an alleged rapist even though he has not been criminally convicted. This issue clearly migrates into a legal problem when we are talking about a public school.

    2. Part contract, part quasi-contract (the suit argues, in part, detrimental reliance on the published code of student conduct).

      1. Reliance too. That’s interesting, good lawyering, and fair imo. I think codes of student conduct and employee handbooks should be contracts upon which students and employees can rely.

        1. Agreed, at the very least it’s evidence of implied provisions of the contract. I’m pretty sure that every student is required to sign a contract saying that they will adhere to “The rules set forth in the Student Handbook and all requirements of the Student Code” or some other such provision. I think I remember signing something like that last year. Point being, it’s likely far from a unilateral contract, as the Handbook and Code generally describe the responsibilities of the school for adjudicating disputes, calculating punishment, and deferring to law enforcement in the case of potentially criminal conduct.

  5. This could be controversial

    Naaaaaah.

  6. This could be controversial

    Naaaaaah.

  7. Is there any other infraction that they handle in this way? I guess drinking and drugs in the dorms would be similar, but at least in that case they are on school property at the time of infraction.

    This allegedly happened in a frat house, so it seems to be an issue for the fraternity, not for the school, at least until this man is tried and convicted.

  8. Jesus F. Christ. Just an accusation is enough to get you expelled, just because the drunk girl suddenly decides she did’nt make the right choice. Western Civilization, its been nice knowing you…

    1. I haven’t been a fan lately anyway. I just hope the culture that replaces ours legalizes dueling.

  9. The difficulty of defining incapacitation and consent was underscored last week when Dean Wasilolek took the stand. Rachel B. Hitch, a Raleigh attorney representing McLeod, asked Wasiolek what would happen if two students got drunk to the point of incapacity, and then had sex.

    “They have raped each other and are subject to explusion?” Hitch asked.

    “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex,” said Wasiolek.

    Can anyone come up with a reasonable explanation for this double standard?? Preponderance of rape as a male on female crime? Male vs. female strengths? Because I don’t want a return to Victorian moral standards–I would make a terrible Angel of the House.

    1. “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex,” said Wasiolek.

      Quaint assumption, Dean.

      1. It really is nice for him to come out and say it, though.

    2. Can anyone come up with a reasonable explanation for this double standard??

      Not using actual logic, but if you use FEELZ there are oodles of blogs and college courses that will happily help you out there.

    3. I’m impressed, you went and read the link I provided, since you also included the preceding sentence.

      Yeah, it’s a little crazy. I imagine it’s because they want to take away any possible defense from a male accused.

      1. Yep, it was a well-written article. The whole story reads like a mess all around. Life ain’t fair and that includes the fact that rape is one of those crimes that can be hard to prove, but incidents like this one illustrate why the last thing we need are quasi-judicial campus committees determining what a preponderance of evidence looks like.

        1. that rape is one of those crimes that can be hard to prove

          Tell me about it! Have you ever tried to gather four adult male Muslim witnesses in one room to give testimony at the same time as sharia demands? Like herding cats, I tell you!

    4. The reason for the double standard is to enable women to avoid any personal responsibility for their own shitty choices.

      The majority of these cases result from drunken hookups between two (roughly equally) inebriated adults. If you instead characterize them as sexual assault with male as perpetrator and female as victim, then you have essentially told the women that they lacked any agency in the affair. Many women apparently find infantilized victimhood preferable to guilt and shame over their sexual decision-making.

      1. Many women apparently find infantilized victimhood preferable to guilt and shame over their sexual decision-making.

        This is also why they worship the “purity and innocence” of children. Children aren’t responsible for their own shitty choices, and generally have competent parents to keep them from metaphorically grabbing the burner on the stove.

    5. Can anyone come up with a reasonable explanation for this double standard?

      Males have the benefit of Male Privilege(TM) and are therefore responsible for anything that bothers women.

  10. Get rid of federally guaranteed student loans and most of the DOEs power disappears.

    1. And federally funded research and the NSF, no?

  11. #notallmen but #yesallcollegestudents.

    They should put an image of a pair of panties on the student ids of those who consent to drunken hookups. Then you can check before you get in the cab.

  12. So… someone I know actually believes that there’s no possible way a Woman can Rape a man.

    How do you even have a rational conversation when that is the baseline?

  13. Hint to the Guys:

    If alcohol is involved, your sex should be of the “cowgirl” variety, thus indicating consent by the female (she can dismount easily) and in fact makes her the “rapist” (whoever-is-on-top, I think is the legal term) should you be feeling vindictive later.

  14. This all makes sense if you start with the premise there is no such thing as consensual heterosexual sex.

  15. The appalling lack of due process embraced by Duke’s President and faculty during the Lacrosse scandal and now in this incident is the reason I will not give my alma mater one cent.

    Joseph Olson
    Duke, J.D., 1970

Please to post comments

Comments are closed.