Last Wednesday, a superior court judge issued an injunction against Duke University allowing Ciaran McKenna, a men’s soccer player suspended six semesters for allegedly sexually assaulting a fellow student, to remain on campus as a student for the duration of his lawsuit against Duke and Dean of Student Conduct Stephen Bryan. This is the latest development in yet another case highlighting issues surrounding sexual assault on campus as well as the ethicality of private university student conduct policies.
The sexual assault in question was allegedly committed in November of 2015. An initial hearing panel convened in July 2016 unanimously concluded that the alleged victim did not give affirmative consent, though it failed to come to unanimous agreement that the female student verbally denied consent. The panel handed McKenna a six-semester suspension, which he appealed on the grounds of misapplication of a “reasonable person standard.” He asked that the complaint be dismissed due to the alleged procedural failures and his advisor, a law professor, warned Duke that convening a second panel against him would constitute double jeopardy and that the case ought to be put to rest. In spite of these arguments, a second hearing panel was convened five months later. This new panel handed down the same punishment and found that, in addition to not providing affirmative consent, the female student had verbally denied consent.
Following the ruling, McKenna again appealed, claiming that Duke had unfairly called a second panel. When this second appeal was rejected in late January, McKenna filed a lawsuit against Bryan and the University.
Although not lawyers, we as a Board find several faults with the conduct of McKenna’s lawyers and the composition of their argument. First, it has been brought up that the alleged victim lied about being a virgin. Regardless of whether that is true, misrepresenting one's sexual past—not an uncommon thing—is not grounds for the removal of all credibility. Moreover, ignoring credibility, the status of one's virginity is not paramount to agreement to sex. As stated clearly in Duke's Title IX policy, step-by-step affirmative consent is always required.
But despite our disappointment with salacious content of McKenna’s case, our real ire is directed toward the Student Conduct procedures, with which we have previously taken issue. McKenna’s lawsuit hinges primarily on the claim that the Office of Student Conduct, due to procedural errors and muddled and shifting policy, violated his contractual rights to due process. The veracity of that allegation will be decided by the superior court, and thus we take no position on the question of the case, but the fact that the University has left itself open to such a lawsuit through its own inability to both establish a clear, incontestable policy and follow it are a mark of shame. In its error, Duke has harmed both the accuser and the accused.
We as students must fight the urge to give this case and others like it a superficial treatment. To pitch oneself into one camp or the other without considering the case in its complexity is to deny either of the students in question both due process in the court of public opinion. Both students have rights—rights that the University may have jeopardized through sloppy zeal.
Read more at: http://www.dukechronicle.com/article/2017/02/a-regrettable-case