# Duke university asking for trouble on rape **URL:** \ **Category:** The BBQ Pit\ **Created:** [June 3, 2014, 6:40pm UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946 "2014-06-03T18:40:08Z")\ **Posts on this page:** 11\ **Page:** 2
**Author:** ![asterion](https://avatars.discourse-cdn.com/v4/letter/a/4da419/32.png) [@asterion](https://boards.straightdope.com/u/asterion)\ **Post date:** [June 4, 2014, 4:11pm UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946/21 "2014-06-04T16:11:57Z")
> [@Debaser](#): > > I’d put it in this order. Duke is a… > > 1. Men’s basketball team. > 2. Fake rape accusation cesspit. > 3. Where Tucker Max writes about in lots of his stories. > > Plus, I’m not sure where I heard this, but there might be some sort of school there. No, I’m probably thinking of something else. You forgot one, which is the zeroth point. So it should be: 1. Sucks 2. Men’s basketball team. 3. Fake rape accusation cesspit. 4. Where Tucker Max write about in lots of his stories. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [June 4, 2014, 6:58pm UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946/22 "2014-06-04T18:58:39Z")
> [@Labrador\_Deceiver](#): > > Only if it’s suddenly 40 years ago. Hmmm. Yeah, that’s pretty much consistent with when I last paid any attention to NCAA basketball. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 4, 2014, 7:27pm UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946/23 "2014-06-04T19:27:56Z")
> [@Bricker](#): > > The Duke University [Duke Community Standard in Practice](https://studentaffairs.duke.edu/sites/default/files/DCS%20Guide%202012-13.pdf) (PDF link), lays out the specific promised disciplinary procedures and procedural safeguards. Thanks. Here’s what the article says the accused rapist alleges: > [@](#): > > Duke’s student misconduct policy considers sexual conduct as “without consent” if an individual is incapacitated due to alcohol. What constitutes “incapacitated” is left vague, according to some academic watchdogs, including Brooklyn College historian, K.C. Johnson. Consent in the guidelines IS defined: > [@guidelines](#): > > Consent defined. The university’s definition of sexual > misconduct mandates that each participant obtains and gives > consent in each instance of sexual activity. Consent is an affirmative > decision to engage in mutually acceptable sexual activity given > by clear actions or words. So, stopping once the woman starts **crying** isn’t sufficient. If the woman in question is not showing consent by clear actions or words, it’s against Duke’s policy. > [@the article](#): > > In March, a three-member Duke disciplinary 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,” according to the Indy Week newspaper, which published a lengthy account of the case. You’re right that this is vague–but it uses a “reasonable person” standard in the guidelines: > [@guidelines](#): > > The use of alcohol or other drugs. The use of alcohol or > other drugs can have unintended consequences. Alcohol or other > drugs can lower inhibitions and create an atmosphere of confusion > over whether consent is freely and effectively given. 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. > [@](#): > > Mr. McLeod’s complaint claims that the panel failed to interview — or permit testimony — from key witnesses, including fraternity brothers at the house that night, while relying on a second-hand account of an anonymous witness. It also alleged that Duke discouraged him from seeking legal advice and expelled him under an unpublished policy. I’m not sure I see how the frat brothers would have relevant testimony. Are they going to testify that they were watching the sex and saw her giving consent? If all they saw is her flirting with the guy before they went into his room, that’s not relevant. Are they going to testify that she wasn’t intoxicated? Maybe they could, but I’m not sure their judgment is entirely to be relied on here. Certainly there’s a case to be made that frat brothers might be an eensy bit biased toward their frat brothers. So it’s possible that Duke unfairly denied their testimony, but the facts so far don’t seem to prove that. As for discouraging him from seeking legal advice, in what way did they do so, and does that have any relevance? As for expelling him under an unpublished policy, you just linked to the policy, didn’t you? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 4, 2014, 9:01pm UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946/24 "2014-06-04T21:01:10Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Thanks. Here’s what the article says the accused rapist alleges: > > Consent in the guidelines IS defined: > > So, stopping once the woman starts **crying** isn’t sufficient. If the woman in question is not showing consent by clear actions or words, it’s against Duke’s policy. According to him, he did give clear verbal consent to sex. She admitted that to the hearing committee. According to the committee’s findings, she was too intoxicated to give that consent, but both she and McLeod confirm that she did. The panel had no evidence in front of it to conclude that she did not give verbal consent. > [@](#): > > You’re right that this is vague–but it uses a “reasonable person” standard in the guidelines: > > I’m not sure I see how the frat brothers would have relevant testimony. Are they going to testify that they were watching the sex and saw her giving consent? If all they saw is her flirting with the guy before they went into his room, that’s not relevant. Are they going to testify that she wasn’t intoxicated? Maybe they could, but I’m not sure their judgment is entirely to be relied on here. Certainly there’s a case to be made that frat brothers might be an eensy bit biased toward their frat brothers. That objection goes to the weight of their testimony. Testimony is not “irrelevant” if it comes from a possibly biased source. The panel was free to disbelieve any testimony it heard after judging the demeanor and credibility of the witness – but not to refuse to hear the testimony in the first place. That refusal runs directly counter to their published policy. And what about the anonymous witnesses? You failed to respond to that aspect of McLeod’s complaint. > [@](#): > > As for discouraging him from seeking legal advice, in what way did they do so, and does that have any relevance? As for expelling him under an unpublished policy, you just linked to the policy, didn’t you? I linked to the policy that’s currently published. McLeod alleges in his complaint that the University adopted an addendum to that policy which requires expulsion in the case of sexual assault. McLeod is referring to this claimed second policy, which does not appear on the Duke website. According to McLeod, he was told flatly by a Duke University employee that he was not permitted to have legal representation. If true, that’s certainly relevant. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 4, 2014, 11:22pm UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946/25 "2014-06-04T23:22:32Z")
> [@Bricker](#): > > According to him, he did give clear verbal consent to sex. She admitted that to the hearing committee. According to the committee’s findings, she was too intoxicated to give that consent, but both she and McLeod confirm that she did. The panel had no evidence in front of it to conclude that she did not give verbal consent. Where are you getting that information from? If that’s true, that definitely changes my opinion of the case–as does a lot of the other information you’re offering here. Not that I doubt you, but did I miss a link to the committee’s findings or something? > [@](#): > > That objection goes to the weight of their testimony. Testimony is not “irrelevant” if it comes from a possibly biased source. The panel was free to disbelieve any testimony it heard after judging the demeanor and credibility of the witness – but not to refuse to hear the testimony in the first place. That refusal runs directly counter to their published policy. Okay, sure, that makes sense re: frat brother loyalty. But what about the issue of whether their testimony was relevant? If the issue is consent, they might not have been present at the critical moment. > [@](#): > > And what about the anonymous witnesses? You failed to respond to that aspect of McLeod’s complaint. It’s because in my brief perusal of the guidelines I couldn’t find anything about a right to confront witnesses or anything like that. > [@](#): > > I linked to the policy that’s currently published. McLeod alleges in his complaint that the University adopted an addendum to that policy which requires expulsion in the case of sexual assault. McLeod is referring to this claimed second policy, which does not appear on the Duke website. Honestly, I’m not so clear on what the difference is: if the published policy says he can be expelled for sexual misconduct, and the committee found that the preponderance of evidence supported a finding of rape against him, expulsion seems a foregone conclusion. If you’re not going to expel someone for rape, the idea that you might expel someone for sexual misconduct is ludicrous. > [@](#): > > According to McLeod, he was told flatly by a Duke University employee that he was not permitted to have legal representation. If true, that’s certainly relevant. I agree. I didn’t see that–I just saw his claim that he was “discouraged” from legal representation. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2014, 12:32am UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946/26 "2014-06-05T00:32:34Z")
> [@Left\_Hand\_of\_Dorkness](#): > > Where are you getting that information from? If that’s true, that definitely changes my opinion of the case–as does a lot of the other information you’re offering here. Not that I doubt you, but did I miss a link to the committee’s findings or something? The case filing has his complaint. Obviously, his complaint consist of what he alleges to be true as opposed to what a court has found to be true. But this complaint comes from his lawyer, and while a lawyer will certainly cast his side in the most positive light possible, he generally will not simply fabricate factual claims. (That is, his complaint will say, ‘If permitted to testify, Student 4 would have said X, Y, and Z.’ That doesn’t mean that the court would have found X, Y, or Z to be true, but simply that the testimony from the student would have been X, Y, and Z.) > [@](#): > > Okay, sure, that makes sense re: frat brother loyalty. But what about the issue of whether their testimony was relevant? If the issue is consent, they might not have been present at the critical moment. Sure – but again according to the complaint, Student 2 observed McLeod and the complainant getting out of the taxi and entering the building and was prepared to testify that the complainant showed no signs of intoxication. The complaint alleges that the hearing panel did not permit Student 2 to offer that testimony. > [@](#): > > It’s because in my brief perusal of the guidelines I couldn’t find anything about a right to confront witnesses or anything like that. From the linked policies: > [@](#): > > For undergraduates, this includes the right to a 120-hour/five day notice in advance of a hearing, the right to bring material witnesses to speak on his/her behalf (written testimony of two character witnesses may be submitted to a hearing panel before the hearing begins), the opportunity to make opening and closing statements, and\*\* the right to ask questions (directed through the hearing panel) of any witness present.\*\* > [@Left\_Hand\_of\_Dorkness](#): > > Honestly, I’m not so clear on what the difference is: if the published policy says he can be expelled for sexual misconduct, and the committee found that the preponderance of evidence supported a finding of rape against him, expulsion seems a foregone conclusion. If you’re not going to expel someone for rape, the idea that you might expel someone for sexual misconduct is ludicrous. It’s the other way around: he contends that this “secret” policy demands expulsion for any lesser offense of sexual assault, and that the university relied on this instead of considering a wider range of sanctions that were supposedly available under the original policy. > [@](#): > > I agree. I didn’t see that–I just saw his claim that he was “discouraged” from legal representation. For what it’s worth, his lawsuit against the university included a request that the university be prohibited from expelling him until his suit is heard. A hearing on that request was conducted in front of Judge W. Osmund Smith in the civil section of the Superior Court of Durham County. The judge granted McLeod’s request, saying: > [@Durham Superior Court](#): > > 1. By virtue of his status as a student at Duke University, the plaintiff attained various rights related to the misconduct allegations against him and the resulting disciplinary process to address same. This is so, whether those rights be determined to be contractual, pursuant to the defendant’s policies, or arising from fundamental fairness under the circumstances and relationship of the parties. > > 2. 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. > > 3. The plaintiff is likely to suffer irreparable harm if he is expelled from Duke University pending a final determination on the merits in this action. ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [June 5, 2014, 4:54am UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946/27 "2014-06-05T04:54:31Z")
> [@Bricker](#): > > According to him, he did give clear verbal consent to sex. She admitted that to the hearing committee. According to the committee’s findings, she was too intoxicated to give that consent, but both she and McLeod confirm that she did. The panel had no evidence in front of it to conclude that she did not give verbal consent. Bricker, I don’t mean to shit up this thread the way I stupidly shit up a thread in GD, but are you sure it’s even relevant if she gave verbal consent or not if she was intoxicated, which he seems to be conceding? According to this link an intoxicated person cannot legally consent to Sex in North Carolina. [http://healthcenter.ncsu.edu/health-promotion/resources/health-and-wellness-topics/rape-and-relationship-violence/sex-with-consent/](http://healthcenter.ncsu.edu/health-promotion/resources/health-and-wellness-topics/rape-and-relationship-violence/sex-with-consent/) > [@](#): > > **An intoxicated partner cannot consent legally to sexual activity.** And yes, this is North Carolina State not Duke, but is the situation different at Duke or North Carolina in general? On the thread I shit up, ITR Champion began by saying he was under the impression that it was unclear whether an intoxicated person could legally consent to sex and all the evidence I’ve seen seems to back up his assertion. Now obviously, realistically had this case been turned over to the authorities it’s doubtful the case would have gotten passed the Grand Jury and regardless of the law, no jury would have convicted him, but from a strictly legal standpoint, it’s not clear that the North Carolina State Health Center is wrong that women who are intoxicated can’t legally consent to sex. If that’s the case, does the kid have a leg to stand on? Not of course that I’m saying this is right. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2014, 1:27pm UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946/28 "2014-06-05T13:27:56Z")
> [@Ibn\_Warraq](#): > > Bricker, I don’t mean to shit up this thread the way I stupidly shit up a thread in GD, but are you sure it’s even relevant if she gave verbal consent or not if she was intoxicated, which he seems to be conceding? Well, yes and no. By that I mean: yes, you’re correct that her verbal consent is not relevant if she were intoxicated, but no, he’s not conceding that she was – or in the alternative, he’s saying that a reasonable person in his position would not have known she was intoxicated. Thus the relevance of the various witnesses who, if permitted to testify, according to him would have said that they saw the complainant both immediately before and immediately after the sexual intercourse and she exhibited no signs of intoxication. > [@](#): > > Now obviously, realistically had this case been turned over to the authorities it’s doubtful the case would have gotten passed the Grand Jury and regardless of the law, no jury would have convicted him, but from a strictly legal standpoint, it’s not clear that the North Carolina State Health Center is wrong that women who are intoxicated can’t legally consent to sex. The case was turned over to the authorities, who declined to prosecute, citing inconsistencies in the complainant’s version of events and a lack of cooperation by the complainant. ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [June 5, 2014, 2:25pm UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946/29 "2014-06-05T14:25:12Z")
> [@Bricker](#): > > Well, yes and no. By that I mean: yes, you’re correct that her verbal consent is not relevant if she were intoxicated, but no, he’s not conceding that she was – or in the alternative, he’s saying that a reasonable person in his position would not have known she was intoxicated. Thus the relevance of the various witnesses who, if permitted to testify, according to him would have said that they saw the complainant both immediately before and immediately after the sexual intercourse and she exhibited no signs of intoxication. > The case was turned over to the authorities, who declined to prosecute, citing inconsistencies in the complainant’s version of events and a lack of cooperation by the complainant. Ah, my mistake. Thanks for the correction. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [June 5, 2014, 4:04pm UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946/30 "2014-06-05T16:04:16Z")
I appreciate your insight, too, **Bricker** : with the additional information you provided, it’s looking good for the dude. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2014, 4:44pm UTC](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946/31 "2014-06-05T16:44:44Z")
> [@Left\_Hand\_of\_Dorkness](#): > > I appreciate your insight, too, **Bricker** : with the additional information you provided, it’s looking good for the dude. At least at this stage… yes. It may turn out that if the additional witnesses testify, they are not credible. The guy’s complaint is that he wasn’t given a fair hearing… but he cannot be sure that if he IS given a fair hearing, the results will not be the same. Still, at this point in the proceedings, I think he has the correct position. [Previous page](https://boards.straightdope.com/t/duke-university-asking-for-trouble-on-rape/689946.md?page=1)