Rape victim tries to resurrect lawsuit against Duke

Jan. 16, 2013 @ 06:28 PM

A rape victim has served notice through her lawyer that she’s going to ask a federal appeals court to reinstate her lawsuit against Duke University.

Filed by Durham lawyer Bob Ekstrand, the appeal notice said former Duke student Katharine Rouse will ask the 4th U.S. Circuit Court of Appeals to review a Greensboro-based judge’s decision last month to dismiss the case.

Rouse contends Duke is guilty of discrimination based on gender for having treated as a one-way move her decision to transfer to another school at the end of 2007.

She and Ekstrand also fault Duke investigation of the fraternity they believe sponsored the off-campus party that produced Rouse’s attack.

They contend campus officials cut off the investigation to avoid embarrassing a major donor, natural-gas magnate Aubrey McClendon, who owned the Gattis Street house where the February 2007 incident occurred.

Ekstrand’s Jan. 10 notice of appeal to the U.S. District Court in Greensboro didn’t explain the legal rationale for the move. That will follow in the next few weeks when he files a brief with the appeals court in Richmond, Va.

U.S. District Court Judge Catherine Eagles dismissed the case last month – less than a month before it was to go to trial – because she thought Rouse and Ekstrand hadn’t turned up evidence of severe and pervasive gender discrimination at Duke.

Eagles said the evidence on hand indicated that Rouse asked for a transfer and never told Duke officials she might want to return to Duke. The school’s policy is that a transfer out of Duke for undergraduates is a one-way street.

As for the fraternity investigation, Eagles said federal precedent cautions against “second-guessing the disciplinary decisions of school administrators.”

The judge also said Rouse had never claimed Duke’s handling of the fraternity influenced her decision to leave or had exposed her to post-attack harassment.

Ekstrand’s filing wasn’t the only action in the case, as lawyers for Duke separately filed a motion asking Rouse to shoulder some of its litigation expenses.

The request sought payment by Rouse of nearly $10,412 in costs Duke’s lawyers incurred to acquire copies of deposition transcripts.

Depositions are the records of pre-trial questioning of witnesses, used by lawyers to shape trial strategy or argue for an outright dismissal. Duke seeks payment for its trouble in acquiring 10, among them the depositions of Rouse and her father.

The costs were “reasonable and necessary to prepare for trial and to defend against [Rouse’s] claims,” Duke lawyer James Weiss said in a filing related to the request.

Rouse’s attacker, Michael Jermaine Burch, wasn’t a Duke student. He was arrested and eventually sentenced to prison, but N.C. Department of Correction records incidate he could be released on Jan. 27.

Rouse went public about the case in an interview with New York’s Newsday in 2009 soon after Burch’s sentencing.