A senior at Duke University is suing the school for his diploma after he was expelled from the college due to a rape accusation.
As reported by a local paper, the Indy Week, Lewis McLeod, Class of 2014, is demanding that the school provide him with his degree so that he can move on with his life.
McLeod, who hails from Australia, says he has a job offer from a Wall Street investment firm but cannot start without his degree. With his student visa expiring at the end of this term, a lack of a job would force him to leave the United States.
McLeod’s troubles are rooted in a sexual encounter on Nov. 13 of last year. McLeod says the encounter, which occurred in his room, was entirely consensual and that it stopped once the accuser became emotional and began crying. The accuser, whose name has been withheld by local media, said that McLeod assaulted her by continuing to have sex for some time after she asked him to stop.
McLeod was never charged with any crime, let alone convicted. According to his lawsuit, police in Durham, N.C., have already investigated the case and found insufficient evidence for a criminal charge.
While no criminal prosecution occurred, the accuser brought her claims through the school’s disciplinary channels. On Feb. 21, a three-person disciplinary panel consisting of two non-faculty staff members and a female undergraduate was convened for a hearing on the case. The next month, McLeod was notified that the committee had found him guilty and expelled him from the school.
Rather than say he had forced himself on the accuser against her consent (which was the original nature of the allegations), the committee instead ruled that the accuser had been so incapacitated by alcohol that any kind of consent was impossible.
In his lawsuit, McLeod says he was not able to cross-examine or otherwise speak to his accuser or the other witnesses brought against him. He additionally alleges that the committee dismissed McLeod’s own witnesses without letting them testify, and that the woman chairing the hearing repeatedly showed bias against him by denying him the chance to make his case.
“She would say ‘We’ve discussed this enough, let’s move on,’” McLeod said in a hearing on the lawsuit last week.
McLeod appealed to a four-member panel in April, consisting of three administrators and another undergraduate, which affirmed the judgment just days before final exams. His lawsuit soon followed.
The panel that convicted McLeod relied on a “preponderance of evidence” standard, which calls for an accused person to be convicted if it is found “more likely than not” that an accusation is true. It is a step below the “clear and convincing evidence” standard, which requires that guilt be significantly more likely than innocence, and two steps below “beyond a reasonable doubt,” which requires that guilt be near-certain to warrant conviction.
Many colleges have in the past relied on a “clear and convincing evidence” standard for internal disciplinary hearings, but a 2011 “Dear Colleague” letter from the Office of Civil Rights at the Department of Education decreed that to comply with Title IX schools must use the “preponderance of evidence” standard for sexual assault cases.
The Foundation for Individual Rights in Education (FIRE), a group that promotes free speech and due process rights at colleges and universities, has strongly criticized the use of this lower burden of proof, saying that school disciplinary hearings lack the due process protections needed to ensure trials are fair and free of error.
This isn’t the first time Duke has been at the center of a major sex-related controversy. In 2006, the school was the center of a major scandal when several members of its lacrosse team were accused of raping a stripper at a party. Charges were eventually dropped and District Attorney Mike Nifong was disbarred for unethical practices. 88 members of the Duke faculty were subjected to severe criticism from some quarters after signing a letter containing language that seemed to assume the players’ guilt.
A preliminary ruling from Judge Osmond Smith III is expected soon. Smith could order Duke to issue the degree immediately, with the possibility of a later revocation if it wins the case. He could also allow Duke to withhold the degree until after a full trial, however, which would likely force McLeod to return to Australia.
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