Duke soccer player accused of date rape fights to remain in school

A judge is weighing whether to force Duke University to reinstate a suspended student until his lawsuit over the suspension is resolved.

Ciaran McKenna, a member of Duke's soccer team, filed suit last month against Duke and Associate Dean of Students Stephen Bryan, who heads the Office of Student Conduct, alleging breach of contract, violation of his due process rights and negligence. He had filed the suit as "John Doe," which he said was to protect his privacy and that of a female student he is accused of assaulting.

The case began with a Nov. 14, 2015, encounter between the two students, who met and danced at a Durham nightclub before going back to their dorm for sex, which he claims was consensual. Several months later, the suit says, she filed a complaint with OSC, alleging that she hadn't consented to sex.

During a first hearing last July, a disciplinary panel wasn't convinced the female student had verbally denied consent, but the panel found that her actions didn't constitute consent, according to the lawsuit. McKenna appealed the second part of the ruling, arguing that it wasn't supported by evidence.

An appeals board determined the disciplinary panel didn't view the female students nonverbal actions under the standard of a "reasonable person," as called for in Duke's policy, so the board sent the case back to the panel to correct the error, according to the lawsuit. Instead, Bryan set up a new panel to hear the whole case again in November. That second panel determined that the female student had verbally denied consent and that her actions didn't constitute consent.

McKenna, who hasn't been charged criminally in the case, contends that Bryan violated Duke policy by setting up the second panel after the player had been partially cleared of wrongdoing by the first one.

"This was a situation where the complainant had initiated sexual activity, was the aggressor, always seemed to direct what they did," said James Coleman, a Duke University Law School professor.

Coleman testified for McKenna during a Wednesday court hearing to determine whether a preliminary injunction should be issued, saying he twice reviewed the claims and felt a reasonable person would have concluded the female student had given her consent.

"The only issue is whether there was consent, and in all circumstances, the perspective of a reasonable person will be the basis for determining whether the respondent knew or reasonably should have known whether consent was given," said Paul Sun Jr., an attorney for Duke.

The injunction hearing will continue Thursday, when Bryan is expected to testify.

After the November ruling, Duke suspended McKenna for six semesters, which he said in the lawsuit would result in the loss of his student visa – he is from the U.K. – and financial losses for his family, as well as dealing a blow to his goal of playing soccer professionally.