OT: Judge Blocks Expulsion of Duke Student Accused of Sexual Misconduct
Superior Court Judge W. Osmond Smith III on Thursday rejected Duke’s effort to dismiss a lawsuit filed by the accused student, Lewis McLeod, a senior who accuses the university of violating his contractual rights. The ruling blocks Duke from expelling him at least for now. “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 judge wrote. Judge Smith enjoined Duke “from expelling the plaintiff… pending a final determination on the merits.” But he declined to order the school to grant him his degree, stating that he couldn’t make that decision at this stage of the litigation.
LINK: http://blogs.wsj.com/law/2014/06/02/judge-blocks-expulsion-of-duke-stud…
I acknowledge that posting this article runs the risk of the ripping open the Brendan-Gibbons-scab that is far from healed. Maybe I am naive, but I believe this board, with a few exceptions, is capable of engaging in a collegial, respectful, non -political (!) discussion regarding this increasingly relevant topic. IMHO, this topic is no longer just a Gibbons-issue, but rather a larger issue that will affect all college students, including athletes, for years to come.
Some of my questions for the board's discussion are: (1) Will lawsuits on behalf of expelled students become increasingly more common? (2) Is it possible to entrust university employees who potentially have no law enforcement or criminal investigative experience to conduct sexual assault inquiries? (3) What standard of proof requirements should be in place prior to expelling a student for sexual misconduct?
I would very much love to hear some novel opinions from the Mgolawyers, the Mgo-policemen/women, or anybody with professional experience in investigating these types of crimes.
No, my hypothetical was a female equivalent of male locker room humor as respects "banging drunk chicks." And it wasn't sarcastic--I'm quite aware of what you describe but I've never heard a hint of common female discussion or humor about it, which could mean that such discussion/humor is uncommon or that it's hidden. I was guessing the former but could be wrong--more than one woman has commented that while they're aware of the male version of this it never happens in their presence.
I'm also not being sarcastic with my question about whether any university's seen a report of this. It's another example of something that the law can't currently deal with but most university codes could, since they don't suffer from the same gender imbalance the law does.
The guy gets kicked out of school and is stigmatized for life and the female goes to the next party.
I think this is a bit of a straw man. The flip side of your tale is exceedingly more common: the girl gets raped and has to live with that while the male guy goess to the next party.
I certainly fall on the side of the fence that says being raped is worse than being falsely accused of rape, but I'm willing to entertain the counter-argument. My issue is that your scenario is pretty rare while rape is an unfortunately popular behavior.
are not labeled sex offenders. the sex offender registry is it's own entity that is entirely within the realm of the court of law, and carries it's own commonsense pro's and evil cons.
is that people are implicitly conflating the legal ramifications of being a convicted rapist to being ruled by a university of sexual misconduct. the differences are extremely significant.
having to deal with random people you'll never interact with calling you a rapist is very different from being on the sex offender list.
i bring it up because i think that people are making it seem like being falsely expelled is on par with being falsely convicted. it's not. the ramifications are baby-time compared to the legal system.
received, he will not have to face the job market as a convicted felon, never have to make sure he lives far away from every school, etc. etc. etc.
being "labeled" a sex offender by random posters on an internet blog is not the same as being labled a sex offender by the legal system. 1 is largely sticks and stones while the other is something that will almost assuredly inhibit your means of making a living for your entire life.
What's intellectually dishonest is assuming that every employer merely googles the names of applicants and flips out immediately if anything unscrupulous pops up.
I do sensitive work, and some of my coworkers are ex-cons. A law school guy I knew at Michigan had multiple arrests on his record and got a job easily at a top-tier firm in NYC. It sucks way, way more if you're doing a minimum-wage job or something similar paid hourly, because those skills are largely ubiquitous, but if you're a graduate with rarer skills, employers are willing to overlook all sorts of stuff.
NB: some people get called rapists because they raped someone. That is sometimes independent of whether or not they were expelled for a broader offense.
I'm already assuming that risk by having sex, it's just an extremely low one relative to the odds of getting raped and seeing no justice for the perpertrator. But as tough as it is to make such decisions, I'm willing to accept a small increase in the number of falsely accused having their lives ruined if it leads to a significant reduction in the number of rapes total.
It's a callously practical position as much as a serious attempt to look at it from the female perspective. I'm a male, but I think any (and all) discussion optimally includes perspectives from both sides and this forum skews heavily one way.
As I already stressed, my issue is reality versus anecdote. I realize false accusations occur, but my admittedly cursory research suggests its pretty uncommon compared to rapists seeing no legal or social consequence. Whether and how a university/legal system can solve that underlying issue is another debate. The solution is not so simple and I admire but don't envy the difficult task of sorting it out.
So my options are A) go to prison for a falsely accused sexual offense or B) no longer lobby this blog for any action that reduces the number of sexual offenses that occur (even if it means A is incrementally more likely for everyone)? Well sure I'd take B if those are my only 2 choices, but in actuality that's not how it works.
Or maybe I'll just say "yes." If I were falsely convicted for a sexual crime, I would go to prison. Or possibly kill myself if I had the chance. Like rape victims sometimes attempt- to the tune of 13 percent, per suicide.org. I dunno if they have an angle or not, it's just the first Google result. This blog likes data over perception. Show me the data on outcomes for the falsely accused.
we're talking about being expelled from school. maybe you never are able to transer, so you end up entering the job market with only a high school diploma. very stiff punishment, but not on the same level as being a felon on the sex offender list.
Believe me, I understand that. The ramifications of a criminal conviction compared to sexual misconduct are demonstrably different. I'm just answering the hypothetical I was given by guthrie.
And I argue that it's easy to take your position when you've not been asked to bear the burden of being raped. Nor have I, but your theoretical condition upon which my argument holds water is ridiculous.
Listen, I absolutely agree that no one should be unjustly sentenced to the legal or social ramifications of false accusation; it would be an unimaginably horrifying scenario for me or my family. I also think no one should be unjustly sentenced to being a victim of sexual offense; even worse offense when the perpetratror suffers no repercussions. One of these sentences is vastly more common. In my opinion, its consequence is at a minimum equally as devastating. To me that makes the "what if it happened to you?" line pretty bogus. Yet I answered it, anyway, above.
One of these sentences is vastly more common. In my opinion, its consequence is at a minimum equally as devastating.
This is what I strongly disagree with. One outcome being more common doesn't make it worse for the individual involved. I think you're making a fallacy of failing to separate the actual act of rape or sexual assault with the outcome for the perpetrator. Is rape traumatic? Yes - but it's traumatic whether or not the perp is punished. It's just that it's some degree more traumatic if not.
On the other hand, there is a 100% difference between being the victim of a false accusation, and not being one. And there are very tangible effects on those victims. Look at it this way: We as society consider it vile and unforgivable to deny an opportunity to someone for something they couldn't control, like their race. Donald Sterling wouldn't rent to black people, and that helps make Donald Sterling the most hated man in America - and those people he wouldn't rent to can find another apartment relatively easily. So I can't reconcile the idea that it's acceptable to deny someone these opportunities for the rest of their lives because of something they didn't do.
Even if it's less common - well, it should be. And - this is important - persecuting people who didn't do anything is not going to make sexual assualt go away on campus. At some point, which Duke and U-M probably reached, you're not preventing sexual assault. All you're doing is making sure the perception of your own actions cannot possibly construed as being tolerant of rape.
And, I'm sure I don't have to remind anyone, false accusations hurt actual victims too. Viciously stamping out false accusations and making sure that an accused person gets his (or her) due process is another way to ensure that when someone does speak up, they're taken seriously. So to me, it's just logic. Err on one side and you risk hurting victims of rape. Err on the other side and you also risk hurting victims of rape, plus the victims of false accusations. I know which way I'd rather go on that.
being a victim of rape and having to suffer through the process of the completely incompetent legal system letting the rapist go scotch free, and then having to face the possibility of the seeing the rapist at random times for the rest of your college life can and often does lead to such extreme decisions as suicide
I'm not the authority on which victimization is "worse," but the justice system (and society at large) already does a pretty good job of protecting people from punitive consequence for committing (and even moreso being falsely accused of) sexual offenses. Protecting the victims of those crimes? Seems like there is room for improvement. So I've taken my stand there and it seems you have as well.
I don't begrudge you for the opposing position, but it really runs the risk of minimizing the impact of sexual offense by emphasizing something like "for the rest of [the falesly accused] lives," as though being a victim of sexual offense doesn't carry consequence for the rest of one's life. Or that "there is a 100% difference between being the victim of false accusation, and not being one," as though there is no grey area between sexual misconduct charges from a university and a criminal conviction of rape.
I do agree that it's a huge unknown as to whether harsher prosecution (or anything that results in a greater number of falsely accused receiving punishment) would relate to any reduction in the number of sexual offenses committed overall. The larger issue of how to reduce sexual crimes on campus or in society at large (and whether or not universities have a place in that effort) is much more complex.
No, I have not had to bear the burden of being raped, nor has anybody I'm close with as far as I know. But I have had the bear the burden of having someone perpetrate a crime against me and not be punished because of due process and the presumption of innocence. And yes, most would consider it more 'trivial' thing than being raped. But you know what, I still believe in due process, and I still believe in the presumption of innocence. God help me if something as bad as rape happens to me or to those I love, but I certainly hope I will still hold to those core values. But it won't matter what I would believe in that senario because others who are not emotionally wrapped up in the situation will probably still defend those values. But I just cannot agree with you that because rape is vastly more common, and still probably under-reported, than false accusations, we should just glide past due process.
I think the issue is that I've gotten off track a bit from the question of whether universities should be involved. I'm not sure how to approach that and recognize it does run the risk of apparent guilt without due process.
My issue is that "but what about the falsely accused!?" is used as a straw man for limiting societal efforts to prevent and properly punish sexual crimes. There just aren't any numbers to back up the claim that false accusations are a serious problem in our society that needs addressing. Meanwhile, a significant percentage of offenders get to "glide past due process" by never even appearing in a police station or court.
To take a concrete, and in some respects extreme, example that a lot of people here are probably at least somewhat familiar with, was the Steubenville case a rape or was it casual sex?
Ohio law is different but under Michigan law it probably wouldn't have been a criminal sexual assault since the victim's intoxication was (as far as we know) voluntary.
Of course all that demonstrates is that statutory law doesn't draw the line correctly, but I think the real difficulty here is that there isn't a sharp line to be drawn. We could probably set up a hypothetical set of facts that some of us would think constituted rape and others wouldn't find particularly problematic.
Solving that conundrum is what what the justice system is designed to do, but it'll never be perfect. Not until we have robot lawyers and judges, at least.
/levity
Did the victim say yes she wanted to have sex? Then it's consensual if she was drinking voluntarily. Did she say no or nothing at all? Then it's rape. Was she passed out? Then it's rape.
That's a system, it's just an imperfect one. And if I followed some earlier chatter that occured in the thread, one that applies in the state of Michigan? How the state reached that system is presumably a long series of decisions generated by events and thoughtful discourse of the nature we're all trying to have here. Again, I'm not a lawyer.
Though tempers have flared, I think everyone is agreement we should continue the discussion as a society in seek of perfection, or at least the semblance of consensus. Perhaps we're among the last few keeping it alive for tonight as this thread approaches a relatively civil 100 replies.
Yep. I'm going to bed. The Oregon State UC irvine baseball game on ESPNU just ended.
She was conscious but unable to walk or speak coherently. From the witness's testimony it's likely she said or mumbled something, but it was never established in court what it was.
From what you've written it sounds like that would be the critical question for you--did she mumble something that could be construed as a yes?
I have a different standard, and I'm not alone.
But going back to this specific case, the whole crux of the accused's lawsuit seems to be that Duke did not allow testimony, nor did the investigators interview, witnessess who say she was able to speak and walk coherently.
But, man, this whole case presents a bunch of hypotheicals and conundrums for Duke and other universities. I find this quote during the lawsuit from Duke's Dean interesting:
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
Wooo, that just seems to be begging for more lawsuits/rights violations. Basically saying, 'you are incapacitated to make decisions, but you are male, so you are the one held responsible."
Unless Duke is intentionally trying to get sued to force the courts to intervene with DoE's policy, one of Duke's lawyers needs to have a talk with that dean ASAP. There's no way in hell that's the policy, and that's an incredibly stupid thing to say, especially on the record to a plaintiff's lawyer.
Sexual misconduct is also not a criminal offense.
Every school in the country (maybe there's an exception out there somewhere but I've never heard of it) has a student code of conduct that's more restrictive than criminal law. All of the cases I can remember discussing on the board have had the possibility of falling into the area between, of being code violations without being criminal acts. In Michigan's case the law deals with "force and coercion" and the code is primarily interested in "consent". The critical question in a university hearing hasn't even been dealt with by the police or prosecutors or courts--it's irrelevant there.
I guess the equivalent at BYU would be a case where a court clears a student of rape. Absent a finding in the court that sex hadn't taken place at all, the school would be well within their rights to expel the student for having sex in violation of their code.
Whatever anyone might think about the efficacy of the criminal justice system in dealing with sexual assault, one thing that's clear is that that system is only set up to enforce criminal law. It can't, and doesn't, evaluate those cases against a university's code of conduct.
You're right. Although I would bet there will be more lawsuits about what 'sexual misconduct' is as it relates to having sex without consent, which can probably be justified as a criminal offense (although, as pointed out before, may vary depending on local laws). It's a bit more murkey as it relates to similar criminal penalties than pre-marital sex. Basically, one can argue that regardless if Duke calls it 'sexual misconduct', when your investigating and convicting someone of having sex when someone is unable to consent, you're investigating and convicting them of rape. Just because you call something by a certain name doesn't mean it is. Kind of like the whole NW student-athlete/employee designation. NW can call them 'student-athletes' all they want, but a legal rulling said, 'no, they're employees and are granted some of the legal rights even if you call them 'student-athletes''.
between a rape conviction and violating a university's "code of sexual conduct." But think about how ridiculous this whole "code of sexual conduct" really is. How is a male student "violating the code of sexual conduct???" According the university standards, he violates it by #1 being male #2 having sex with any female who has imbibed any amount of alcohol #3 having sex with a female who decides she was "raped" even if she consented to sex with him. So he's basically judged guilty by being a normal sexually active heterosexual male who was unfortunate to hook up with a crazy or vindictive female. His whole life is then turned upside down and he's forever stamped with the scarlet letter of "sexual offender" or whatever label you prefer.
That's immoral and should be deemed illegal conduct by the university. And it's obscenely sexist. Why isn't the female judged equally guilty of "sexual misconduct" or "rape" or whatever you wish to call it and expelled as well???? If we're being fair and just, that would be the appropriate result. Universities would become sex-free zones with sex police running around. We're already headed that way. That's totally #$%^ed up.
Most of the females I know share the sentiment that consensual sex while drunk isn't rape. They feel that it's sexist that they aren't responsible for their decisions while under the influence of alcohol.
Follow the money.
This guy was a scholarship athlete from a foreign country. If he was paying any tuition Duke has already gotten they could from him (he was a senior in a fall sport so he had completed his eligibility) so keeping him around was of no financial benefit to the University. The complainant (can't use victim as no crime?) was a freshmen so the university still has 3 years of collecting Daddy's money left. Given the average cost of attendance per the Duke website of $61,404 per year * 3 years = $184,212 total. That is one hell of a gravy train to potentially lose out on plus the potential ramifications if she transfers out and bad mouths Duke.
Gotta protect that institutional reputation.
That...is a very cynical view to take.
Cynical yes. But I think it is based in observational fact.
Look at FSU and Jameis Winston for comparison, Winston brings in more money for the university given that he is a high profile athelete with at least 1 more year left at the school (2 years at the time of complaint). If FSU expells Winston they do not win the BCS championship which leads to less donations from alumni.
So high profile athelete with eligibility left doens't get expelled but a low profile athlete with no eligibility left gets expelled.
#1 Yes, these lawsuits should become more common so that universities are forced to respect the rights of the accused.
#2. No, university employees should not be handling criminal matters.
#3. The only "sexual misconduct" universities should be penalizing would be criminal convictions handled appropriately through the justice system. Beyond that, universities should not be "sex police." Period.