Judge Blocks Duke From Expelling Student Accused of Rape

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.