Aussie’s battle for justice in US university sex-case row
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Canberra Bureau Chief
Lewis McLeod’s life, career and ambitions were almost shattered by an unsubstantiated sexual misconduct claim in late 2013.
The former Sydney Grammar vice-captain — now 27 — was within touching distance of graduating with top honours at prestigious Duke University in the US, and had lined up a job at a Wall Street investment bank.
Fast-forward almost five years, and Mr McLeod’s battle to clear his name in a David-and-Goliath struggle with Duke is finally over.
He now has his Duke degree and is ready to move on from the stress, legal bills and smears that have held him back.
“When other kids were having trouble getting an internship, my biggest problem was a lawsuit on the other side of the world against a university with an endowment of more than $7 billion,” Mr McLeod told The Australian.
A former member of Sydney FC’s academy who played soccer for Duke during his almost four years at the North Carolina university, Mr McLeod was forced to fight for his bachelor of arts degree after he was accused of sexual misconduct by a fellow student in November 2013.
His nightmare began after what he claimed was consensual sex with an 18-year-old female student. The pair had met at the Shooters university bar before catching a taxi to Mr McLeod’s Sigma Nu fraternity house.
In the days following the encounter, an investigation by Durham police officers resulted in no charges being laid against Mr McLeod, then 22. The female student lodged a separate sexual misconduct complaint with the university’s Office of Student Conduct. And so began Duke University’s investigation, or as some have suggested a “witch hunt” — one of many at the time being carried out at campuses across the US.
Mr McLeod was forced to take out a restraining order against the university so he could sit his final exams, and won a ruling from a Durham Superior Court judge forbidding the university from expelling him.
In between exposing Duke over its flawed internal investigation, the Sydneysider was flying between Australia and the US, waiting for the slow wheels of justice to move through the Durham County Superior Court.
Speaking to The Australian yesterday, Mr McLeod revealed his four-year legal battle — a period during which he relied on the financial and emotional support of his parents and close friends — had taken a heavy toll.
He also exposed a growing problem in the US, with a spike in complaints being made against young male students.
Mr McLeod, who was on Duke’s Dean’s list achieving a grade point average of 4.0 multiple times, concedes others in his situation would have struggled taking on one of the world’s leading universities. “My legal team and I would have received more than 300 phone calls and messages,” he said. “I personally received 150 phone calls or messages from people in the same situation … other Duke students, students from all over the US.
The problem is the system. This doesn’t happen at universities in Australia because these things go to the police.
“In Australia, universities don’t investigate, fact find and go through evidence … it goes to the police where it should go. They’re experts and they have the skills and training to treat people fairly, whether it be the accuser or the accused.”
Mr McLeod’s lawyers, through the legal discovery process, revealed that Duke’s hearing panel members, who oversaw the case, were trained “that 98 per cent of the time, women who claim sexual assault are telling the truth”.
Mr McLeod reached a confidential settlement with Duke in February on the day the trial was scheduled to commence.
His legal team had argued that the hearing panel chair assigned to his case had never sat on a sexual misconduct hearing before and had been involved in a gender-violence study.
“Our position was not that the hearing panel chair had a conflict of interest simply because she had participated in a gender violence study … but rather, that she had a conflict of interest because of the views and attitudes that she held, including, for example, having talked about the inevitability of men seeing women as objects,” his legal team argued.
“Additionally, there was a possibility that the complainant in this case had participated in one of the gender-violence surveys that was administered by the hearing panel chair around the time of (the) hearing.”
The hearing panel chair also “deemed it an aggravating factor” that Mr McLeod did not admit guilt, and considered that a reason supporting expulsion.
Duke, which boasts an alumni including former US president Richard Nixon, Apple chief executive Tim Cook, National Basketball Association commissioner Adam Silver, and philanthropist Melinda Gates, had failed to learn from an earlier miscarriage of justice when North Carolina’s then attorney-general and now Governor Roy Cooper declared that three lacrosse players accused of sexually assaulting a stripper were innocent of all charges.
The university suspended the players, the lacrosse coach was forced to resign and the lacrosse season was cancelled.
“We believe that these cases were the result of a tragic rush to accuse and a failure to verify serious allegations,” Mr Cooper said in relation to the alleged 2006 incident.
“We have no credible evidence that an attack occurred.”
The three accused men received settlement payouts worth many millions, and estimated to be as high as $20 million each.
Mr McLeod, who was majoring in psychology at Duke, now has his diploma from the top US university, and has been granted full alumnus rights and access to the campus.
He showed The Australian his official Duke transcripts, which denoted no disciplinary action (probation, suspension or expulsion).
Before justice was done, he returned to Australia and commenced a law degree, a juris doctor, in Sydney, graduating last July. After graduating, he travelled to Paris on a full scholarship to study a masters of economics.
Discussing the #MeToo movement that has emerged over the past year, Mr McLeod said his training in law, which included a stint with the Aboriginal Legal Service, had given him a unique perspective on justice.
“I think having studied law, the whole notion of innocent until proven guilty is still one of the most important principles in society,” he said. “I think in this day and age, people are too quick to rush to judgment. As soon as they see a headline, they jump on it. They don’t read into the facts.
“Of course I am fully supportive of the #MeToo movement — it has encouraged those harmed to speak out and for justice to be served. There is no place in our society for those who engage in conduct which harms others in any capacity.
“However, I also believe the best way to ensure that meaningful change is delivered through the movement is by giving both the accuser and the accused the opportunity to openly and fairly present their accounts.
“The pendulum needs to be in the middle and the fundamental principle of being considered innocent until guilty remains paramount. Everyone involved needs to be treated fairly with due process so that we can ensure that those who are responsible are reprimanded and those who are not responsible are protected.”
Mr McLeod is back in Sydney and ready to move on with his life. He says his experience cost him jobs and opportunities, including the chance to work in New York.
It also had a profound physical and psychological impact on him.
“I’ve received many job offers, and they’ve either been taken away from me upon hearing about (the Duke case), or I’ve told them about it, and it was taken away from me,” he said.
“Those were during litigation, so I’m hoping now that everything is finished, it will give me a better chance.”
The personal toll on Mr McLeod has been significant, but he remains optimistic. “I’ve been flying back and forth for the past four years,” he said.
“Duke was no easy litigant, they made everything difficult. Every document, every motion, every legal battle was a long drawn-out, tough experience. And very expensive.
“In addition to that, the personal toll … it’s the same feeling of everything, you know, being flipped upside down.
“(It’s) very difficult to describe, it was an emotional rollercoaster when your whole reputation is destroyed.
“I had built my life around building a reputation, I worked hard to build this reputation and overnight it gets completely destroyed. People who you once thought were friends are no longer friends.
“At the same time, great things come out of it. You see who your true support system is. My true friends came out and really supported me, and came out behind me, my family and friends. You’ve got to look at the positives, and that was one of the positives.”
To highlight the flaws of Duke’s internal investigation, Mr McLeod’s lawyers engaged expert witness Brett Sokolow — widely regarded as the premier authority on such cases in the US. Mr Sokolow, who has conducted more than 1000 investigations into sexual misconduct and civil rights violations on college campuses, stated in his expert deposition that the “investigator” hired by Duke was “unqualified and uncredentialed”.
“If you look at the balance of the evidence in this case, a reasonable person, a reasonable investigator, a reasonable weigher of evidence, I think would broadly find, greatly find, dramatically find, (the complainant) to be less credible than Lewis,” he said.
Mr Sokolow, who runs the NCHERM Group, concluded that the Duke administrator in charge of the student disciplinary process “wound up riding roughshod over the most corrupt process I have ever seen in my years of practice, bar none”.
Mr McLeod’s lawyers, Schwartz & Shaw, in a statement provided to The Australian, said that because of the confidential settlement with Duke, there was never a final determination “regarding Mr McLeod’s claim of unfair and unlawful treatment by Duke”.
“However, two separate Superior Court judges issued a temporary restraining order and a preliminary injunction, respectively, on the basis that Mr McLeod had shown a likelihood of success on the merits of his lawsuit,” lawyer Brian Shaw said.
“No civil or criminal proceedings have been filed against Mr McLeod regarding the disputed allegations.”
Facts revealed in open court at the summary judgment hearing revealed Duke had hired Celia Irvine to conduct the misconduct investigation on a contractual basis.
It emerged Dr Irvine, a psychologist who conducted fitness for duty evaluations for the New York Police Department, did not hold a private investigator’s licence, which under North Carolina law she should have, and would not qualify for a licence from the Private Protective Services Board. The PPSB issued a cease and desist letter to Dr Irvine for violating the Private Protective Services Act.
On returning to Duke after reaching a settlement, Mr McLeod described his mixed feelings. “I walked on to campus for the first time in four years. And I went to the Duke store and I bought a Duke alumni hat. It was funny because ironically it was graduation time, people were buying their graduation robes and frames for their diplomas. I remember thinking … I had been through so much to be here … and these people have no idea.
“In terms of how I feel about the university, I made lifelong friends there. Many of them from the drop of the hat, so supportive.”
In response to a series of questions sent to Duke, Kristen Brown — the university’s associate vice-president for news, communications and media — confirmed Mr McLeod had received his degree but “respectfully” declined to comment further.
Asked about his future ambitions, Mr McLeod told The Australian he would pursue a career in law or financial services, and get on with his life.