A Duke University student has finally been given the degree he earned four years ago. Lewis McLeod* was accused of sexual assault one semester before he was set to graduate. The alleged incident took place in the fall of 2013 following a night of drinking, as so many of these accusations do. McLeod maintained the sex was consensual, while the accuser claimed she was too drunk to consent.
The female student who accused McLeod went to police, but after an investigation, they declined to file a report. So the accuser went to Duke’s student conduct office and filed a report. At the time, Duke’s misconduct policy stated that an individual “incapacitated due to alcohol” cannot freely consent to sex, but that “being intoxicated does not diminish one’s responsibility to obtain consent.” In practice, however, being intoxicated, rather than incapacitated, appears to be all the university needs to find one student responsible for sexual assault.
McLeod claims the female student was coherent the night of their encounter, and it’s impossible to know what happened because their claims were never adjudicated in courts of law, which consider evidence, examine testimony, presume innocence, and have many other procedures many centuries of experience have shown help lead to justice.
McLeod Was Punished Without Being Proven Guilty
Three days before McLeod’s final exams, he was expelled from Duke. He filed a lawsuit on May 2, 2014, and a judge blocked the school from expelling him, but not from withholding his degree. McLeod lost a lucrative job opportunity that had been waiting for him after he received his diploma. Because he was not a U.S. citizen, he was also sent home to Australia, where he waited for the day his lawsuit would go to trial.
The trial date was repeatedly pushed back for various reasons, until February 2018 when Duke settled with McLeod, finally giving him his degree and expunging his record. As author and professor K.C. Johnson noted on Twitter, however, the damage has already been done: “Duke’s actions: (a) cost him a job; and (b) forced him to leave the country [because] he lost his visa.”
The facts of the case are murky, with the accuser texting friends and an ex-boyfriend after the encounter (which would suggest she was not incapacitated) to tell her she asked McLeod to stop but he didn’t (he says he did). She also told friends that she didn’t want to “look like a slut” and texted “I’m so sorry” to the ex-boyfriend.
She said she “got into the bed,” and the medical report said she denied any “threats/intimidation/coercion/force.” She also told a friend “It hurts soo bad like there’ no way it was consensual.” She attended two more fraternity events after the alleged rape, but then stopped. She later testified that she tried to hide her crying from McLeod by claiming she had a stuffy nose.
Even if everything she said was true, the “incapacitation” argument that Duke used to find McLeod responsible wouldn’t hold up in a real court, and she had said there was no force or coercion. But Duke only required a “preponderance of evidence” standard to find McLeod responsible and expel him. That requires people to think only that he was probably guilty of his alleged crimes, instead of the criminal prosecution standard of guilty beyond a reasonable doubt.
The University Investigation Was Unfair to McLeod
McLeod’s lawsuit claimed Duke didn’t allow him to properly defend himself, by not interviewing and then interrupting witnesses who could testify that the accuser was coherent. McLeod was also not able to question the accuser’s anonymous witnesses.
Even the investigation was slanted, as Duke’s investigator failed to reach out to neutral witnesses like employees at the bar where McLeod had met his accuser or the taxi driver who drove them to his residence. The investigator also turned over only summaries of the accuser’s interviews with other witnesses, but never provided the full transcripts to the hearing committee nor to McLeod.
McLeod was not able to question the investigator at his Duke hearing, essentially allowing the accused student to be found responsible on “indirect double-hearsay” evidence, according to his attorneys. And get this: The investigator allowed an anonymous witness to testify that he or she saw the accuser incapacitated, but this “witness” coincidentally appeared the very day the accuser was asked about violating a no-contact order with McLeod. The accuser was not punished for this.
The accuser had violated the allegedly mutual no-contact order by attending a party at McLeod’s fraternity. She apparently spoke to a member of the Duke Women’s Center before attending, where it was suggested that she was allowed to break the no-contact order, according to court documents.
We Have Rules, We Just Keep Them In Our Heads
Duke’s training material is also biased, containing the myth that just 2 percent of sexual assault accusations are false. The university discouraged McLeod from working with an attorney throughout the process. When McLeod asked Duke for the school’s unpublished policy saying its punishment for sexual assault is expulsion, he was allegedly told “you can get it when you sue us.”
In testimony during McLeod’s lawsuit, Duke Dean Sue Wasiolek said the senior was tried under a new expulsion rule that hadn’t been written down yet and was the result of a calculated activist campaign. She was asked during testimony if two students were both incapacitated under Duke’s policy, whether that would be mutual rape. Wasiolek replied: “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.” She also said giving McLeod his degree would damage the university’s reputation.
Had this been an actual court of law, McLeod would have been able to call witnesses on his behalf and cross-examine the witnesses against him. Investigators would have had to turn over potentially exculpatory evidence like interview transcripts. McLeod would have had an attorney, and he would have been considered innocent until proven guilty. But McLeod had none of those things. The university had to choose which student to believe, and Wasoliek made it clear who they were going to pick was based entirely on his male sex.
One can see how this culture at Duke might contribute to erroneous outcomes for male students accused of sexual assault. McLeod may never be able to get his good name back, but he now, at least, has his degree and can finally move forward.
*I’m using his name to ensure stories about his innocence and getting his degree are at the top of his Google searches.