In Campus Rape Tribunals, Some Men See Injustice: Colleges Land in Legal Minefields as They Balance Rights of Accuser and Accused

April 10, 2015

By Valerie Bauerlein at The Wall Street Journal

DURHAM, N.C.—Last spring, Duke University expelled Lewis McLeod, a senior, for allegedly sexually assaulting a freshman woman in his room after meeting at a bar.

The woman had told Durham police Mr. McLeod had sex with her when she hadn’t wanted to. He said it was consensual. Police investigated but didn’t charge him.

A Duke University disciplinary panel didn’t find he gave her alcohol or used force. But the panel concluded it was “more likely than not” the woman didn’t agree to sex and was too intoxicated to consent. Regarding a degree, Duke lawyers later said: “Mr. McLeod is not entitled to that honor.”

Two weeks before he was to graduate, he became the first student Duke expelled for sexual misconduct under a new university policy.

Mr. McLeod, 24 years old, is suing Duke for his diploma, arguing the university unjustly made him an example to show a get-tough approach. “I believe that I’m wrongfully accused,” he says. “I believe that it was an unfair process and I believe I had something I earned taken away from me.”

His case is part of a broad and rapid change in how U.S. colleges and universities deal with sexual-assault allegations. Campuses have rewritten policies to lower the burden of proof for finding a student culpable of assault, increasing penalties—sometimes recommending expulsion. In the process, schools find themselves in legal minefields as they try to balance the rights of accuser and accused.

Mr. McLeod’s suit is one of more than 30 that men have brought against U.S. campusessince January 2014 alleging due-process violations in sexual-assault cases, says A Voice for Male Students, an advocacy group.

The policy revisions hark to a 2011 federal directive that campuses crack down on sexual assault. In a “Dear Colleague” letter to every U.S. college, the Education Department told schools they risked federal investigation and financial penalties if they didn’t protect students from sexual harassment and violence under Title IX of the Education Amendments of 1972, which requires gender equity.

The letter told schools to take action if a “preponderance of evidence” indicated sexual harassment or violence—a lower burden of proof than campuses often use for plagiarism.

Many campuses, like Duke, have interpreted “preponderance of evidence” as a likelihood of more than 50%. Many, including elite private schools like Duke, previously required “clear and convincing evidence” of wrongdoing in such assault claims—as many do with plagiarism cases—a burden-of-proof standard administrators say required a roughly 75% likelihood the accused was culpable.

The directive’s proponents point out that the “preponderance” standard is used in most civil courts. Schools must treat violence against women as a civil-rights injury, not a crime, says Alexandra Brodsky, co-founder of Know Your IX, a student advocacy group.

Schools must treat a woman the way they treat a minority student who is allegedly harmed, she says. In those cases, universities commonly hear evidence from all sides and make prompt disciplinary decisions. They don’t give one party the benefit of the doubt, as in criminal court, she says. “Preponderance of the evidence is used because it puts both parties on an even playing field.”

The Obama administration and some women’s advocates say the directive is working, citing a rise in reporting of campus sexual misconduct as evidence the scrutiny is encouraging women to speak up. There were 5,048 reports of forcible sexual offenses in 2013 at schools with residential campuses, up from 2,984 in 2010, according to the Education Department. The department is now investigating alleged mishandling of sexual-assault cases at 105 schools, compared with 14 at the end of 2011; Duke isn’t among them, it says.

“The pendulum has swung, not so inappropriately toward trying to counterbalance processes that made it very difficult for victims to come forward,” says Larry Moneta,Duke’s student-affairs vice president, who declines to comment on Mr. McLeod’s case. He defends Duke’s policies, which make expulsion “the sanction of first consideration,” as firm but fair.

Catherine Lhamon, the Education Department’s Assistant Secretary for Civil Rights, says students on both sides now have more procedural protection, not less. The 2011 directive didn’t constitute new rules, she says, but called for enforcement of existing ones.

“The idea that the ‘Dear Colleague’ letter ignores due process is appalling to me,” she says, “and finds no support in the text of the letter.” The department says it expects to release more guidance in coming weeks.

Detractors say the directive has led to policies that can violate the accused’s rights. “It was a sea change,” says Joseph Cohn, policy director at the Foundation for Individual Rights in Education, a civil-liberties group opposing the standards. “The overall tenor of the document was to reduce due-process protection,” he says, “to lower burdens of proof and to create appeals even when someone was cleared.”

In the past five months, court filings show, St. Joseph’s University, Amherst College and Swarthmore College have reached sealed settlements with former students who were accused of sexual misconduct and sued in federal court. The Education Department says it doesn’t track how many accused students have brought Title IX complaints.

A judge in Mr. McLeod’s case last year granted an injunction preventing Duke from categorizing him as expelled, saying Mr. McLeod “demonstrated a likelihood of success on the merits” of his arguments at a trial now scheduled for February 2016.

Mr. McLeod has a pending Wall Street job offer that requires a diploma, according to his suit. An Australian citizen, he now attends the University of Sydney to complete his degree. “I didn’t want to speak out, I just wanted my degree,” he says. “I loved Duke.”

The woman who accused Mr. McLeod didn’t respond to email inquiries. Duke says her advocate at the Duke Women’s Center, who helped represent her before the disciplinary panel, declines to comment.

Few dispute that campus sexual assaults are a serious matter. But schools say they struggle to distinguish between assault and drunken, regrettable sex. They also say they must sort through numerous, sometimes conflicting, federal laws and a drumbeat of Education Department settlements with other campuses, which influence their own Title IX programs.

“I’m not saying Title IX is the only topic talked about among colleges and presidents, but boy is it the biggest,” says Peter McDonough, interim general counsel for the American Council on Education, representing 1,700 schools. “There’s a sense that if there’s a band of reasonableness that we should all be expected to operate in, it’s a moving target.”

The “Dear Colleague” letter required multiple changes on campuses, such as that they try to resolve complaints within 60 days. To respond to the directive, many colleges imposed stiffer punishment, although the directive didn’t specifically call for it.

“Institutions need to be pretty confident they are right,” says Mr. McDonough, former general counsel at Princeton University. “And the preponderance standard is, ‘Well, we’re just over 50% sure about this, it could go either way, but we think so.’”

The University of Virginia was criticized for overreacting after it temporarily suspended Greek parties when a Rolling Stone article said administrators failed to adequately investigate sexual-assault claims as the 2011 directive required, in an article reporting the account of a woman who said she was gang-raped. Charlottesville Police last month said they found no evidence of rape, and Rolling Stone has retracted the article.

Last year, the Education Department found a number of schools, including Princeton University and Harvard Law, in violation of Title IX in part because they didn’t adopt the preponderance-of-evidence standard. Princeton and Harvard Law, in settlements, agreed to use the lower standard of proof.

Some Harvard professors criticized the settlement, calling the procedures a violation of civil rights and due process that unfairly favored accusers. Among their concerns: One interpretation of the standard is that if both students are drunk, only the male student can be found culpable. Harvard Law says it has adopted procedures to address many of those concerns.

Mr. McLeod’s case illustrates the gray area schools must navigate.

A report by the Duke disciplinary panel spells out both sides of his case. In November 2013, he and the freshman, then 18, met at a bar named Shooters after midnight. Both told the panel they had been drinking before meeting but didn’t drink together.

They caught a cab. She told the panel she was drunk and asked to be driven to her dorm. He told the panel she didn’t appear overly intoxicated, willingly agreed to come to his off-campus house and chatted amicably in the cab.

In his room, “I told him that I would do anything else except have sex with him,” she said in a statement, included in the report, to a Duke Hospital sexual-assault nurse. “I went and got in the bed with him.”

Mr. McLeod told the panel she said she would have sex if he used a condom. He said that he stopped when she began crying but that when he asked her why she was crying, she denied that she was.

She told the panel that when Mr. McLeod asked why she was crying, she told him she felt sick because she didn’t want him to think she was upset.

The panel reviewed a flood of texts she sent friends from Mr. McLeod’s room saying she was scared, telling one: “he raped me and told me not to cry.” The friend later texted: “Did he actually rape you?” She replied: “It’s like hard to explain I’ll tell you in person.”

She took a cab to her dorm. She texted Mr. McLeod at 11:18 a.m., asking if he could return her shoes. He agreed, asking: “What’s ur name again?”

The woman went to the hospital that night. The hospital called the police, who took her report. The next week, Duke told Mr. McLeod it was investigating allegations he had assaulted her.

A Durham police spokesman says the department dropped its case Dec. 16, 2013, at the woman’s request. Its report notes she refused to cooperate.

On Feb. 21, 2014, Mr. McLeod and the woman attended a five-hour hearing—separated by a screen—before a Duke disciplinary panel of trained volunteers: a senior involved in a project on rape, a sports-nutritionist faculty member and a lacrosse-team academic adviser.

According to a hearing transcript, the key evidence the woman cited was an anonymous January call to Duke’s Title IX investigator from a self-described friend saying the woman seemed intoxicated that night.

Mr. McLeod presented two witnesses, a housemate saying the two appeared “cordial” upon arrival at his house and another saying the woman appeared “lucid” and “coherent” just before she left. Mr. McLeod said later in an appeal that the panel sent away another housemate without hearing his testimony.

In its decision, the panel said it “unanimously agreed it was more likely than not” that the woman didn’t consent to sex. A “reasonable person would have known,” it concluded, that she “was too intoxicated to be able to give consent.”

It recommended expulsion.

Mr. McLeod appealed. A Duke appellate-board panel of three administrators and a student upheld the decision.

Mr. McLeod sued Duke last May in state court, alleging it breached its contract with him by failing to follow its rules on impartial treatment and a fair disciplinary process. He argued the panel relied overly on the anonymous statement, improperly didn’t let him question that witness, should have heard from other witnesses and should have considered inconsistencies in the woman’s testimony.

Duke in court filings said the panel had the right to “exclude information or a witness that is deemed duplicative or immaterial” and that there was no contract to breach between Mr. McLeod and Duke. Mr. Moneta says Duke’s panels are well-trained and judicious.

Mr. McLeod’s suit is backed by his father, Bruce McLeod, chief executive of Australian oil-and-gas company Empire Energy Group Ltd., who says financial supporters are helping fund it because it promises to be expensive.

“I find it staggering, absolutely staggering, that these parallel judicial systems have been built up in universities,” the elder Mr. McLeod says. “They have considerable power to destroy a person’s life.”

A judge in January allowed the younger Mr. McLeod to add defendants, including the psychologist who conducted his and other Duke Title IX sexual-misconduct investigations—and whom North Carolina later barred from such investigations, citing evidence she wasn’t properly licensed. The psychologist didn’t respond to inquiries.

Greek organizations and civil-liberties groups are lobbying Congress to revise adjudication systems or transfer them to police. Sen. Claire McCaskill (D., Mo.) introduced a February bipartisan measure to standardize campus reporting practices, requiring more transparency in handling cases.

Mr. Moneta favors keeping campuses involved: “If you said to a student, ‘Your only option is to go to the police,’ we will see very, very few cases ever get responded to.”

Schools: Duke University