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.
Additionally, there is added incentive to find male students guilty due to Title IX heat from the Secretary of Education. So it's already tilted against them.
He wasn't expelled for sexual assault; he was expelled for sexual misconduct.
The definitions are not at all the same and it's quite possible for someone to have committed the latter without committing the former.
The state doesn't require you to obtain a woman's consent for sex; the university does. Why should the university be bound to the red line chosen by the state?
The state doesn't require you to obtain a woman's consent for sex.
Wait, what?
The law prohibits force and coercion; it's silent as to consent.
The law in Michigan also prohibits sex with a mentally incapacitated person but the statutory definition of "mentally incapacitated" only includes intoxication if the intoxication was involuntary.
You see why that might matter in the case at hand? I don't know North Carolina law but if it's like Michigan's the state wouldn't have brought charges if she was "too drunk to give consent" because there would be no charges to bring.
I did not know that. That is very disturbing.
The argument's been put forward--I've even read that it was the reason the law was drafted that way, but I don't know if that's true--that by avoiding the question of consent the law avoids the necessity of probing the mental state of the victim at the time, thus making her life easier during discovery and trial.
In some jurisdictions there's case law broadening the definitions of "force" and "coercion" to the point that one or the other almost always applies in the absence of consent, but I don't think that's happened in Michigan. I'm wondering if that's because the carveouts for voluntary intoxication make it clear that the legislative intent was that there would be no such thing as "too intoxicated to consent", and that's the area where the cases of no-consent-but-no-force tend to lie.
A conviction is too far the other way.
I would settle for an indictment. If the courts are going to say "we feel this person committed the crime so we are going to spend the resources to try and punish him appropriately" gives the university leeway to make a move.
can be a completely political thing right? An indictment is very far from a sure criminal conviction and frequently get dropped.
Right now they don't even need that.
You also realize how many sexual assault causes get bungled at trial right?
Requiring a conviction is too low of a standard. The university might as well not do anything because if someone is convicted of rape they won't be coming back to school anyway.
Ok, so if someone were indicted, and then found to be not guilty as a matter of law, then what? Also, is this only true for sexual assault/misconduct, or does it apply elsewhere as well? What if a student were wrongfully indicted for burglary or even a murder (the one crime that is at least as bad as rape)? If it is determined that the state was wrong in bringing charges against him/her, and the student did not commit the murder, would expulsion still be appropriate? I think the answer is clearly no, as it seems to be a good public policy not to punish people for indictments that are found to be lacking in a sound evidentiary basis (especially given the reality that there are some overzealous DA's out ther who bring charges without merit). However, once we exchange the word murder for sexual assault, the reasoning changes, and we question whether even an indictment is necessary for a student to be expelled for allegations of sexual assault/misconduct.
I know the murder hypothetical is a little out there, but I think it works well as an analogy to the way we reason about those who are accused of sexual misconduct.
I think that would be the difference between a perponderance which the school needs (51%) and proving it within a shadow of a doubt (~99%).
The other altenative is to maintain the status quo and kick out people who aren't even indicted.
Using the indictment as a switch to trigger the punishment takes the onus off of the University and puts it squarely on those who are best suited to determine if punishment is warranted (I understand we may not have the most confidence in some police/prosecutors but at least they have they tools/experience to investigate).
If someone then sues they have a clear directive they can point at. Indictment = expulsion.
I would also expect that if someone is indicted for sexual assault/murder/rape they would likely be taking time off from school to face trial anyway.
I don't know just seems like a median to me between the current system and the requirement of being found guilty which in my opinion tips the scale the other direction.
A lot of this has changed recently so lawyers or administrators may have more insight.
HOWEVER, as I understand it: under the new title IX requirements any reported sexual assault (reported to an advisor, ra/rd, or brought to a police department) on a college campus or involving students MUST have a separate non-law enforcement investigation. The title IX investigators are supposed to undergo training for this purpose, but I don't know how extensive this training is, and I know colleges are reeling because of the sudden requirement, and many are simply trying to get by by "honoring the spirit of the law." It's a shitshow.
through more aggressive tuition increases, and perhaps building dedicated Title IX investigation facilities on campus, as long as they're LEED-certified and the general contractors are disabled pregnant women of color over age 40 who are Vietnam-era veterans and the construction workers eat only organic vegan meals during the projects. Did I leave anything out?
Will lawsuits on behalf of expelled students become increasingly more common?
Yes. Any cause, no matter how good, if pushed sufficiently hard in one direction, will eventually see pushback. You only have to look at breast cancer awareness to know that. Well, here comes the pushback for sexual assault. Efforts to prevent sexual assault have been going on for a long time, and no university would dare be seen as anything other than zero-tolerance on sexual assault. Eventually it was bound to happen that universities would get a little too zealous in that regard. Always erring on the side of zero tolerance was bound to catch someone that shouldn't have been caught.
No one should be expelled without a trial. This includes Gibbons or anyone else. If the court finds that the defendent is guilty after both sides have made their case then ok. Too many times institutions want to cut the accused loose to help with public perception and show that they are doing something. Duke even fired their lacrosse coach before the facts came out.
What would be the approrpriate standard of proof in such a trial. Preponderence? Clear and convincing? Proof evident, presumption great? Beyond a reasonable doubt? I think this may be a determining factor, especially in the he-said/she-said cases without any other type of evidentiary corroboration, such as a confession, DNA evidence, a recorded pretextual conversation, first-hand eyewitness testimony from an indepedent third-party witness, etc.
Mgolawyers, especially those with either prosecutorial or crminal defense backgrounds, what say you?
IIRC, the current standard is a preponderance of the evidence (i.e. more than 50% likely). That's a laughably pro-plaintiff (complainant) standard given the fact that the University's investigative process is so poor and rife with problems that the investigator can effectively contort the evidence to generate an outcome they deem acceptable.
Given the quality of the investigations as they currently are, I think it should be even higher than "beyond a reasonable doubt."
In the most simplistic Bayesian framework, the standard suggests that we consider only how likely an offense is without accounting for the amount of evidence to support the charge. That is not the case if we must prove the offense occurred "beyond a reasonable doubt."
I am not arguing for one approach or the other. The standards are both pretty fuzzy to me. But I would hope that schools have some clear and reasonable guidelines about the amount of evidence needed to judge an case. The "more likely than not" standard, alone, does not seem sufficient and could put us on a very slippery slope.
So universities can't expel students for anything that doesn't constitute a crime? Or you want trial courts to handle cases involving student codes of conduct?
1) Who would you rather have "convicting" a student for plagairism on behalf of the U - a teacher/University employee or a cop? And who would you rather have "convicting" a student for rape - a teacher or a cop?
2) Also, being kicked out for stealing answers off your neighbor's paper is totally the same as having your name plastered over the internet as a rapist.
Trial courts for plagarism etc. and more serious crimes are handed to the local authorities.
Plagarism is actually handled in house at Duke (and many other institutions).
Link or GTFO.
I'm saying that plagiarism and stuff of that sort should be handled in house. More serious stuff should be handled by the police and authorities rather than university officials who may not have the best interests at heart by either sweeping stuff under the rug or expelling someone due to public pressure.
I'm pretty sure we're going to see a slew of these types of lawsuits in the coming years. I don't think anyone really has a clear answer at this point as to how much latitude and power, outside of the criminal justice system, a university should have over criminal allegegations. I think this is something the courts will eventually decide, and I think it will end up going way up the court system to decide.
I loved that movie. Lots of obvious gags but great 90s fun. I was enrolled at UM when it came out...the Daily reviewers didn't enjoy it as much as I did.
Tid bits from the local press:
- The standard of guilt used in this case was "more likely than not".
- The panel found the student was too drunk to give consent
- The alleged victim is a freshmen
more info here: http://www.indyweek.com/indyweek/a-duke-senior-sues-the-university-afte…
I also think that drunk sex should be consensual. If the girl is passed out then it's a different story. To me it's bad judgement if a girl says yes she wants to have sex then claims that it's rape the next day. If a guy has sex when she says no or doesn't say anything at all, then he is a douchebag who deserves to go to jail.
There's pretty general agreement that sexual assault is a terrible thing and deserves the fullest penalty of the law.
But there's very little agreement on what actually constitutes sexual assault. You've got behavior that on the one hand is considered by many to be rape that, on the other hand, is very common in some environments. And there's not much grey area in the law to allow it to handle cases at the margin--unlike the homicide spectrum from first degree murder to involuntary manslaughter, rape either is or it isn't. (There's a spectrum of findings available for the non-violent statutory situations; that's not what we're talking about here.)
And so we've got a situation where universities are trying to eliminate conduct that is, for some of the students, routine, and is not a crime. There's going to be conflict.
Yeah, I would personally never have sex with an intoxicated person but there are a lot of ways that a person without bad intentions could get blamed for rape and become a sex offender. The guy might not know that the girl has been drinking and had sex with her after she said yes. According to the law, he is guilty and will now have to register as a sex offender. Personally, I don't understand how a person is unable to give consent while drunk yet it is their fault and they should know better when getting behind the wheel while drunk.
"According to the law, he is guilty."
Not in Michigan he isn't. The law specifically carves out intoxication from its definition of "mentally incapacitated" unless it's involuntary. Spike her drink without her consent, you're guilty. If she gets drunk on her own, you aren't.
Universities currently classify all "drunk sex" (any sex after an alcoholic drink) to be rape by the male. That makes essentially all sexually active males rapists. That's insane. Obviously, sex with someone who is so intoxicated as to be physically and mentally incapacitated is rape. How do we determine when somebody crosses this point? It's often impossible. But the solution to this dilemma isn't to criminalize all sex and classify all males as rapists. The only just solution is to only pursue criminal charges for clearly provable cases of rape of an incapacitated person and accept the reality that we can't punish every wrongdoer.
If they had, we'd see an avalanche of expulsions instead of a trickle.
What they've done is issue a guideline (no sex without consent), with anything falling in the grey area potentially subject to review. Apparently only the most intractable cases result in an expulsion. They're prohibited from revealing information on individual cases so we don't know precisely how they make that determination (although enough information is known at this point to allow some educated guesses), but one thing we know for damn sure is that they haven't expelled everyone that's had sex after a drink.
The common behavior I'm referring to isn't sex after any drinking however minor. It's people deliberately pusihng the line, hoping to find someone drunk enough to agree to something they'd never consider if they were sober. There are people who do that routinely. Some of them seem to have extrapolated from their circle of friends to the world at large and they think all men behave that way, that it's what sex is, that to treat that behavior as problematic is to criminalize all sexually active males.
Hence the conflict.
Hmm, that article tends to not make Duke look very good. In comparison, the evidence gathered against Gibbons paints a much stronger picture that Gibbons actually did commit rape. "Preponderance of evidence" with three untrained panel memebers who can dismiss any witness' testimony they find irrelevent, no police evidence, and anonomoys witnesses doesn't seem like the best system. Pretty much why we're going to see a bunch of lawsuits on this stuff. Makes me glad I'm past the point of my life that worry about this stuff. You know, until I have a kid, then I can worry all over again.
Frankly, I'm neither sure that the testimony of a friend of the accused who saw them get out of a taxi is really relevent nor that Duke handled themselves correctly.
I guess, I just see the testimony of a friend of the accuser who saw them get out of a taxi, just as relevent as the testimony of a friend of the victim who saw her walk. I was under the impression that allowing defense witness testimony, especially when called to refute prosecution testimony, was kind of a hallmark of any due process.
I actually think universities are way too lax in their handling of sexual assault cases. The universities don't want to investigate sexual assault cases because it adds to their statistics. And in fact, the DOJ is currently investigating 55 different colleges for mishandling sexual assault cases:
http://www.huffingtonpost.com/2014/05/01/college-sexual-assault_n_5247267.html
Additionally, there's the Brendan Gibbons situation. What I think many don't realize, though, is that the Central Student Government's report wasn't limited to Gibbons, but to widespread issues involving sexual assault reports by Michigan students:
http://www.wzzm13.com/story/news/local/2014/04/14/um-sexual-assault-investigation/7691333/
I have a friend who helped in the investigation (they were interviewed by DOJ officials) after the school tried to sweep their case under the rug.
The idea that a judge would block an expulsion after the school determined that there was reason to believe that a student committed sexual misconduct is baffling to me. Unless Duke affords its students substantial contractual rights (usually such rights are non-binding on the school to the best of my knowledge), this seems like a bad ruling.
Also, this IS NOT a criminal investigation and students do not have a right to attend a specific school, so saying that the school shouldn't be qualified to conduct sexual assault investigations seems misguided to me.
tell the accused to keep their mouth shut. Better to be kicked out of school than to say something wrong that sends them to jail. Even if they did nothing, an attorney is going to tell them not to cooperate.
It's funny you say that, because an "unreasonable invasion of privacy" is dependent on having a "reasonable expectation of privacy." With a private school (like Duke), there's essentially no such thing, since they aren't subject to the constitution. But with a public school like Michigan, any court will tell you that you have little to no expectation of privacy when using THEIR lockers (which is what students at Michigan do).
All of this is missing the real issue, though, that sexual assault cases are routinely mishandled and swept under the rug by universities in an attempt to keep their statistics down. And now a judge is preventing a university from taking action when it actually chooses to do something about the problem. Perhaps this individual kid was not guilty, but the instances of unpunished rapists far outnumber the instances of falsely accused innocents.
I'm not claiming this has happened, and yes this is slippery slope type argent, but it's not out of the question once universities are encouraged to stray from the legal system.