Inside a Durham courtroom last week, a Duke University student, dressed in a crisp suit and tie, shifted uncomfortably in the witness stand. For a day and a half, 23-year-old Lewis McLeod had faced sharp questioning by a Duke lawyer alleging him of sexual misconduct with an 18-year-old freshman last fall at the Sigma Nu fraternity house.
Last month, three days before final exams, Duke expelled McLeod, a senior who was on the Dean's List, under what the university is calling a new sexual misconduct practice. (However, university administrators, foreseeing a potential lawsuit, permitted him to take his final exams.) He is the first Duke student to be expelled for sexual misconduct in recent history. Because of his expulsion, he cannot get his degree, and without a degree, he cannot accept a job offer from a Wall Street investment firm, where he is to begin in July.
However, McLeod has never been charged with, or convicted of, sexual misconduct in a traditional court. Durham police declined to pursue criminal charges against McLeod, who says the sexual encounter with the freshman was consensual, and that she was coherent that night. He alleges Duke's disciplinary panel gave him an unfair hearing. Earlier this month McLeod won a temporary restraining order prohibiting Duke from following through with the expulsion.
Duke says that McLeod's disciplinary hearing followed proper procedure, and that his accuser was incoherent the night they had sex. Awarding him a degree would damage the university's reputation, lawyers say.
On May 2, McLeod, who was later banned from the commencement ceremony, sued Duke for breach-of-contract. Within the next two weeks, a judge will likely determine whether Duke must issue McLeod a bachelor's degree. If the judge rules otherwise, McLeod, whose student visa has expired, would be forced to return to his home country of Australia. He is now in limbo—neither a student nor a graduate.
The case is primed to become a flashpoint in the debate about gender violence on U.S. college campuses, where administrators are facing pressure to levy harsher punishments on perpetrators of sexual assault. Even when accused students are never criminally charged, such as in the case of McLeod, colleges are meting out on-campus justice through disciplinary tribunals run by student volunteers, faculty and administrators.
A recent wave of critiques by college activists suggests that universities grossly ignore the problem of sexual assault. Some research says that 20 percent of women are assaulted on college campuses, a figure President Obama has cited, while other scholars say the number of victims is closer to 2.5 percent.
Some lawyers and scholars counter that the scrutiny has resulted in careless investigations and inadequate due process for accused students, particularly when alcohol is involved. They say that under those circumstances, "consent" and "incapacitation" are ambiguous terms.
McLeod's case could hinge on a single omission by Duke. At the beginning of the 2013–14 academic term, Duke's Office of Student Conduct implemented a new practice making expulsion the "preferred sanction" for students deemed responsible for sexual misconduct.
However, Duke never entered the new practice into the student affairs rulebook. Administrators claim that such "internal practices" are different than official policies, and don't have to be explicitly written into the rulebook, which contains the university's code of conduct.
McLeod's accuser, whose name is redacted from court documents, did not participate in last week's proceedings. But court documents outline what happened on the night of Nov. 13, 2013.
McLeod, a tall man with thick, brown hair, was at Shooters, a bar popular among undergraduates. Shortly after midnight, he spotted a girl on the dance floor, a freshman whom he didn't know. She had been drinking at a pre-game gathering that evening, and says she had at least two shots of tequila at the bar. Most of the night she talked to another Duke student, but at some point she began dancing with McLeod.
Shortly after 2 a.m. she and McLeod got in a cab together. She later testified that she believed the cab driver was taking her back to her dormitory. She recalled not wanting to argue with McLeod when the cab arrived at his Sigma Nu fraternity house, though she did make up an excuse about having four exams the following day. She assumed McLeod wanted to have sex with her. Upon their arrival, a fraternity brother saw them outside his window. He would later report that they were having a friendly conversation.
When the two entered the house, McLeod knocked on the bedroom door of a roommate to introduce him to the freshman. He declined to come out, but he later reported hearing McLeod and the freshman "laughing and enjoying each other's company" through his doorway.
Inside McLeod's bedroom, the freshman and McLeod started having sex. During intercourse, the freshman started crying.
McLeod says that when the freshman became emotional, he immediately stopped. She contends he did not. During interviews with police, medical administrators, a Duke investigator and Duke's disciplinary hearing panel, as well as to friends via text messages, the freshman outlined several allegations, including the following: Her memory of the night was cloudy; she did not agree to intercourse; he disrobed her; she begged him to stop and pushed him away; she told him to stop several times; that "I told him to stop and that I would call the police"; and that "he raped me and told me not to cry."
After McLeod fell asleep, the freshman sent a text to her ex-boyfriend saying, "I need you." She continued sending several text messages to at least four people. Among them: "He just said to stop crying," "I said to stop but he wouldn't," and "I don't wanna look like a slut." In another text to her ex-boyfriend, she said, "I'm so sorry."
She texted an anonymous friend, saying that the reactions from other friends implied they wanted to "kill" McLeod. (During later testimony, she recanted that suggestion: "This whole 'killing,' no one said that.")
She texted her best friend, saying, "I told him to stop." Her friend replied, "Who did you fuck?"
When the freshman left McLeod's room, she knocked on the bedroom door of another fraternity member. He later testified that the freshman seemed coherent, but embarrassed. (In a text to McLeod later on, the fraternity brother suggested the freshman was "terrified," according to Duke.)
The freshman asked the fraternity brother to retrieve her wallet in McLeod's room, and then she called a cab to pick her up.
The next day, her best friend sent her a text: "Did he actually rape you." The freshman replied, "It's like hard to explain I'll tell you the story in person." In another text she said, "It hurts soo bad like there's no way it was consensual."
During an interview with Duke Medicine administrators that day, she conceded that she "went and got into the bed," but that "I was crying and begging him to stop, and eventually he stopped." The medical report, however, concluded that she denied any "threats/intimidation/coercion/force."
The following day she went to Durham police, who determined the use of force was "not applicable." She also brought her allegations to Office of Student Conduct administrators, who issued a no-contact order and barred McLeod from campus, with the exception of attending class. (In five months, McLeod violated the on-campus restriction at least once, and was issued a trespassing citation.)
The freshman also told the investigator that, after she and McLeod had sex, "I was kind of trying to talk myself out of it. I was saying, 'No, you didn't finish so we didn't have sex." He was saying, 'Yes, we did.' "
In December the freshman attended a Sigma Nu fraternity Christmas party; on Jan. 9, she attended another Sigma Nu party, causing McLeod to leave the frat house because of the no-contact order. Four days after the party, however, she told the investigator that she no longer attended Sigma Nu events.
During the 2012-13 school year, 154 students reported an instance of gender violence to the university's Women's Center, according to the Duke Chronicle. Last summer, in response to a lobbying effort by a student advisory board and student government, Duke implemented the new practice about sexual misconduct. A Duke alumna and lawyer who lives in a residence hall, Dean Sue Wasiolek is the Assistant Vice President for Student Affairs and Dean of Students. She testified that the new expulsion protocol was implemented to assure sexual assault victims that their concerns were being heard.
Duke's student affairs rulebook, the Community Standard in Practice, defines sexual misconduct as "any physical act of a sexual nature perpetrated against an individual without consent or when an individual is unable to freely give consent." It also says, "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 inability to give consent."
Wasiolek testified last week that the McLeod case was the first to be considered under the new expulsion practice.
Asked why the new protocol wasn't written into the university's Community Standard guide, she replied, "It is an understood practice. ... We didn't feel the need to make it public."
However, she said the student affairs office is determining how to roll out the new practice more explicitly.
Some lawyers argue that campus sexual assault tribunals are tantamount to kangaroo courts, often relying on hazy, alcohol-inhibited memories. Drunken student hook-ups, they argue, can lead to false accusations. The ideas of "consent" and "incapacitation," critics say, are difficult to define. At least eight male undergraduates nationwide have sued their respective universities claiming they were wrongfully sanctioned for alleged sexual assault, according to a May 15 TIME magazine article.
On Feb. 21, a three-member disciplinary panel convened a six-hour hearing with McLeod and the freshman accuser. The panel consisted of a female undergraduate student who researched gender violence and two administrators: a male academic adviser for the lacrosse team and a female sports nutritionist. Prior to the hearing, McLeod submitted additional text messages to administrators, suggesting the freshman had deliberately withheld them from Duke's investigator.
McLeod, who played on Duke's soccer team until he was sidelined with an injury his junior year, was paired with an adviser, Jeremiah Walker, an academic administrator within the university's athletic department. McLeod arrived to the hearing with about two-dozen manila folders stuffed with documents, personal notes and glowing character references, including one from a professor and another outlining his charity work. He and the freshman sat on opposite sides of a screen and never spoke to each other directly.
During the hearing, the freshman called McLeod a rapist. "I remember it happening and I remember it really hurting and I remember saying, 'Stop, it hurts,' " she testified. She said that she attempted to hide her crying from McLeod, blaming it on a stuffy nose.
"My memory of that night is so cloudy, but episodic," she said. "I remember these, like, instances but nothing really continuous." She said she didn't remember much about the cab ride, and that she didn't remember how her clothes came off.
She said she offered to perform any sexual act on McLeod other than full intercourse. "I remember in the house saying, 'Can we not have sex?' Can we do anything except for that?" Because I didn't' want to have sex with him, and I knew that."
When the panel asked her about the discrepancies of some of her texts that night, she said she "was not really making much sense at the time."
The panel considered the testimony of an anonymous witness—a friend of the accuser—who said that on the night in question, the freshman was not walking straight and slurring her words.
During his argument, McLeod reiterated his statement that the sex was consensual, and that he stopped as soon as she became emotional.
In March, the panel informed McLeod that it unanimously found him responsible for sexual misconduct, and that his sanction would be expulsion. However, the hearing panel stopped short of ruling that McLeod forced himself upon the freshman explicitly against her will. Rather, it ruled that the freshman "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."
The panel used the "preponderance of the evidence" standard, stating that it was "more likely than not" McLeod and the freshman had nonconsensual sex.
McLeod appealed to a four-member board consisting of three university administrators and an undergraduate. He submitted a 28-page letter and 17 pages of documents. On April 25, three days before he was to begin his exams, the appellate panel informed McLeod it had upheld the disciplinary board's conclusions.
McLeod contends his disciplinary hearing was tainted and that the freshman was coherent that night. He points to discrepancies within the freshman's statements, claiming that her testimony included fabrications, and that she lacks credibility. Among his claims:
- The investigator failed to interview the student with whom the freshman was dancing at Shooters prior to meeting McLeod, and that the man would have testified that the freshman was coherent.
- The panel interrupted the testimony of the fraternity brother who observed through his window McLeod and the freshman exiting the cab. He would have testified that she did not seem confused.
- The disciplinary panel did not ask the fraternity brother who retrieved the freshman's wallet about her state of sobriety. He would have testified that she was coherent.
- The panel sent home, without allowing him to testify, the fraternity brother who'd heard the freshman and McLeod laughing outside his bedroom door. The fraternity brother would have testified that the freshman seemed coherent. (The Duke panel has the authority to dismiss witnesses deemed irrelevant.)
- The panel did not allow McLeod to confront the freshman's best friend, who opted not to attend the hearing. The friend had previously told the investigator that the freshman appeared slightly intoxicated that night, but that the freshman was "OK" with her clothes coming off in McLeod's bed.
- The panel put undue weight on the written testimony of the anonymous witness, whose identity McLeod doesn't know. (The hearing panel allows for anonymous witness testimony, so long as it does not constitute a sole or substantial basis for determining responsibility.)
- Throughout the hearing, McLeod was not given the opportunity to argue his case, and the student chair seemed biased against him and ignored him on several occasions. "She would say we've discussed this enough, let's move on," he testified in court last week.
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.
The dean also testified that awarding a degree to McLeod would damage the university's reputation, devalue the degrees of Duke alumni, and harm its relationship with graduate schools and employers. A Duke degree, she said, comes with the trust that the student is "of high character."
She added: "I feel we followed our procedure. I feel as though Mr. McLeod was given the opportunity to be heard throughout .... At the end of the day, I really trust this process."
In his soon-to-be-issued ruling, Superior Court Judge Osmond Smith III will have several choices. He could compel Duke to issue McLeod a degree, allowing him to begin his Wall Street job. In this scenario, Duke would have the option to revoke the degree at a later date if it ultimately wins the lawsuit.
Smith could also opt to keep McLeod in limbo until a trial—likely a year away. Under this scenario, McLeod would be forced to return to Sydney and sacrifice his job.
Smith's third option would be to allow Duke to follow through with the expulsion, sending McLeod home and wiping away his spring-semester credits.
Duke's lawyer, Raleigh attorney Paul K. Sun Jr., argued that McLeod deserved no special treatment because of his Wall Street job offer. "Frankly, your honor, Australia is Mr. McLeod's home. It is not irreparable harm for him to go home."
Regardless of the outcome of McLeod's case, a text exchange between him and the freshman underscores a certain reality of campus hook-up culture.
The morning following the sexual encounter, McLeod texted his accuser, saying, "Apparently u walked into my mates room looking for ya wallet? Did you end up finding it?"
"Yeah haha," the freshman responded.
"How were your 5 assignments that were due today as well as ur 4 exams ? Hahah," wrote McLeod.
Then he added: "What's ur name again?"
This article appeared in print with the headline "No man's land"