Men's soccer player suspended for sexual assault allowed to remain at Duke after preliminary injunction

February 16, 2017

 

Update: A team spokesperson said Friday that McKenna remains a member of the men's soccer program.

Judge Orlando Hudson issued a ruling on a preliminary injunction Wednesday allowing suspended men's soccer player Ciaran McKenna to remain at Duke. 

 

Hudson issued the ruling after closing arguments by Duke's lawyer Paul Sun and McKenna's lawyers Emilia Beskind and Jay Ferguson. McKenna, a sophomore, had been suspended by the University after being found responsible for sexual assault. But after Hudson's ruling, McKenna will be allowed to remain a student at Duke while the rest of the lawsuit proceeds in court. 

 

"We're so happy for our client, we're so happy that he can continue his education, that the can continue to get the things that Duke promised him while he is fighting this case in court, and we are very much looking forward to the jury hearing the facts of this case," Beskind said.

 

Michael Schoenfeld, vice president for public affairs and government relations, said the University had no comment on the case. 

 

A team spokesperson also declined to comment on the outcome but noted that the team will discuss whether McKenna can train with the men's soccer team this spring in the coming days. The Blue Devils host the Pittsburgh Riverhounds of the United Soccer League Sunday to kick off their spring slate. 

 

Background to the case

 

McKenna—a men's soccer player—was suspended for six semesters in January after being found responsible for sexual assault by the Office of Student Conduct. He is suing Duke on the grounds of a breach of contract, common-law fairness violations and negligence.

 

A three-person panel, convened in July 2016 by the Office of Student Conduct, found unanimously that McKenna was responsible for violating sexual misconduct policy because the alleged victim had not verbally consented. However, the first panel was not unanimously convinced that the alleged victim, who is also a student, said “no” to the sexual encounter—although she claimed that she had.

 

McKenna appealed the decision, and the appeals panel found that there was procedural error in the first panel, which did not use the appropriate "reasonable person" standard to decide the case. The issue was then returned to the Office of Student Conduct. 

 

A second panel, convened in November 2016, found that the alleged victim had not given consent, and that she had also explicitly denied it. At that point, McKenna appealed to a second appeals panel, which decided not to overturn the decision. McKenna was then suspended in January.

 

During the last week, several administrators—including Sue Wasiolek, associate vice president for student affairs and dean of students, and Stephen Bryan, director of the Office of Student Conduct— have testified in court. 

 

Closing arguments

 

In his closing argument, Ferguson cited the case of Lewis McLeod, who sued the University in 2014 after being expelled for sexual assault, as evidence to support McKenna's position. But Sun, the attorney for Duke, argued that the McKenna’s argument was a “distortion” of the community standard and that McKenna had been found responsible for sexual assault.

 

“There is only one finding, and the finding is that he was responsible,” Sun said.

 

Sun defended OSC's decision to create a second panel with an analogy to procedures in normal courts of law. 

 

“Your Honor knows the remedy that applies when there is a prejudicial trial error, and it’s whether there’s a civil case in civil court, or a criminal case in criminal court, that the remedy is for a new trial,” Sun said.  

 

He also argued that no irreparable harm is done to McKenna if the suspension is carried out and he has to return home. McKenna has claimed he would have to return to the U.K. if suspended because his student visa would have expired. 

 

In her rebuttal, however, Beskind emphasized that the details of the alleged sexual assault are not the issue, but rather whether Duke was negligent in applying its student conduct procedures. 

 

“He selected Duke,” she argued. “When he came to Duke after doing that research and deciding on Duke, he agreed that he would play soccer for them and live by their rules. And Duke has to live by the rules too.”

 

Eventually, Hudson agreed with McKenna's argument and decided he should remain at Duke for as long as the case continues to be litigated. 

 

"I also agree that he has established and carried his proof on his claims that his hearings were fundamentally unfair," Hudson said. "The mandatory injunction will be allowed."

 

This story was updated with the team spokesperson's comment at 5:50 p.m. Wednesday. 

 

Read more at: http://www.dukechronicle.com/article/2017/02/mens-soccer-player-suspended-for-sexual-assault-allowed-to-remain-at-duke-after-preliminary-injunction

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