Duke University has settled with a student who had been suspended for alleged sexual assault just before a trial over his lawsuit was about to begin, The Daily Wire has learned. This is the second time in six months that Duke has made such a settlement just before a trial.
Ciaran McKenna had his name dragged through the mud after a female student he met during his freshman year, when he was still 17, accused him of sexually assaulting her, according to The Duke Chronicle. The two had met at a bar on November 14, 2015, and began kissing as they danced together. The female student — who is not named in legal documents because she is not being sued — then invited McKenna back to her room, allegedly just to continue making out. But McKenna says she didn’t object when he stopped to pick up a condom, and he says she did not deny consent through her words or actions. She says she told him “no” and pulled away before sex. McKenna says they engaged in other sexual activity before and after intercourse, and that she told him he didn’t have to wear a condom after it kept falling off.
Months later, the woman would claim McKenna sexually assaulted her, and a Duke hearing panel suspended him for six semesters. This panel, which heard the case on July 7, 2016, did not unanimously believe the woman verbally said “no,” during the activity, but also didn’t believe McKenna had demonstrated that he had obtained affirmative consent.
McKenna, who was on a student visa from the U.K., appealed the panel’s finding because he did not believe the panel properly applied a “reasonable person standard” in determining whether the accuser’s actions confirmed consent.
McKenna also believed the panel ignored evidence that damaged the accuser’s credibility. She claimed that she didn’t want to have sex with the soccer player because she was a virgin, but McKenna says one of his teammates had a previous sexual relationship with her. The panel said it attempted to contact this player three times. McKenna says they used an unfamiliar conference call number instead of the number they used to contact him. Not knowing who was calling, the teammate didn’t answer.
The appeal panel stated that “procedural errors within the investigation or hearing process may have significantly affected the finding,” in particular the lack of the reasonable person standard being applied. The case was then set for a new hearing panel. James Coleman, Jr., a law professor and McKenna’s faculty advisor, emailed Duke administrators on the soccer player’s behalf, alleging that a second panel would amount to double jeopardy. He called the decision for a new panel “indefensible,” and said that a second panel should not be able to come to a different conclusion over whether the accuser said “no.”
The second panel happened anyway, and unanimously decided she had said “no,” and that McKenna should have taken extra steps to confirm consent after she told him she was a virgin. The second panel heard from McKenna’s teammate, but still decided to believe the accuser.
McKenna hired attorneys and received a preliminary injunction to halt his suspension. This temporary injunction, granted in February 2017, was made permanent a year later. McKenna continued with his lawsuit to attempt to collect damages after being unfairly labeled a racist.
The Daily Wire can now report that McKenna has reached a settlement with Duke, according to his attorney, Emilia Beskind. Paperwork related to withdrawing the case from court should be filed within the week. Beskind could not say what was gained in the settlement, writing in an email only that “my client is expected to graduate in December and remains a student in good standing at Duke with no disciplinary record.”
In June, another accused student also settled with Duke prior to his lawsuit going to trial. Attorneys in both cases had called Duke dean Sue Wasiolek to testify. Wasiolek had previously testified in the other Duke case that men were responsible for obtaining consent, even if both students were drunk.
“Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex,” she said. She also testified that allowing that student to graduate would damage Duke’s reputation.
Wasiolek testified in the McKenna case that granting the temporary injunction would “take the teeth” out of Duke’s disciplinary process.