The facts are largely undisputed: Two college students on summer break – he’s a sophomore; she, a freshman – make a date. It’s Memorial Day weekend, 2014, and their intentions are explicit. They meet and have sex – consensual, enthusiastic – when a passerby interrupts them.
A few hours later, still together, the male student attempts to resume the sexual encounter. He reaches under her shirt to touch her breast. He stops immediately when she asks him to. They agree about these facts.
Yet this “one-time, non-consensual touching,” as university documents summarize it, is the crux of a startling Michigan State University sexual misconduct case. It has generated a thick stack of legal documents, months of MSU administrator time, and tens of thousands of dollars in legal bills since the female student, known here as Melanie, formally complained on Sept. 25, 2015 – almost 16 months after the incident.
More importantly, though, the case – which has traveled through an internal appeals process, exhausting the now-22-year-old man’s hope for reversal of sanctions at the university level – challenges what some might see as common-sense assumptions about sex and dating behavior. MSU’s findings draw sharply etched lines into the blurry world of dating intimacy and reveal the power of university administrators to mark a student as a sexual offender – for touching a lover’s breast after sex, miles from campus, without any accusations of violence, intimidation or stalking behavior.
Deborah Gordon, the Bloomfield Hills lawyer representing the man, says she intends to file a federal lawsuit against the university. She calls the case “beyond ridiculous.”
The woman who brought the case to Michigan State authorities – intelligent, well-spoken, well-schooled in feminist theory – thinks otherwise: “I feel very secure in the fact that he did sexually assault me; he did cross a line. He did know what he was doing, even if he didn’t want to acknowledge it.”
The male MSU student, whose name is redacted from official documents and changed here to Nathan, has not been charged with or convicted of a crime by local police authorities. But he has been formally disciplined for sexual harassment by MSU, under federal Title IX anti-discrimination law – a ruling that he and his family say they fear will haunt him for life, and that his lawyer says has already cost him at least one career opportunity.
Gordon, the lawyer, has famously made her career as a civil rights lawyer, specializing in employment law. At 65, steely-eyed and serious, she has risen to Super Lawyer status in a male-dominated profession, winning a reputation as a fierce advocate for her clients. Fearless, she once took on the case of a fired Bloomfield Hills district court secretary, placing the court’s judges on the stand – and convincing a federal jury that her client, rather than the chief judge, was telling the truth. That she’s recently become an advocate for young men accused of sexually assaultive behavior at the University of Michigan and Michigan State surprises even her. But this case?
“This is absurd. It’s Alice down the rabbit hole,” she told me at a conference table in her spacious Bloomfield Hills office suite. “It’s a story that needs some attention from the other side.”
Addressing campus assault
In the middle of a national conversation about rape culture on college campuses, with statistics demonstrating that women are being forced into sex and their perpetrators rarely challenged, the story of Nathan and Melanie is a provocative one; it illustrates how university investigations into sexual behavior can reverberate in unexpected, and painful, ways, potentially scarring both partners.
MSU has endured its share of negative publicity about the prevalance of sexual assault on campus: Only four days before Melanie complained to authorities, MLive.com reported on an Association of American Universities study that found one-in-four female undergraduate students at Michigan State said they had been “sexually assaulted” – language used to describe non-consensual penetration or sexual touching involving force or incapacitation.
The emergence of sexual violence as a searing issue on college campuses can be traced to September 2011, when the U.S. Department of Education’s Office for Civil Rights wrote to college administrators nationwide, asking for tougher, more timely enforcement of sexual assault cases.
The so-called “Dear Colleague” letter – which urged schools to lower the standard of proof for sexual assault and misconduct — has been credited with protecting female students and blamed for inciting institutional panic and over-prosecution of male students.
Many schools, including MSU and the University of Michigan, complied with the letter’s aim, lowering the standard of proof required to find wrongdoing and beefing up their internal investigation process for such incidents. Instead of requiring a finding of “beyond a reasonable doubt” against the accused, MSU and many other schools now use the lower “preponderance-of-evidence” standard used in civil court cases. The lower standard has helped empower victims to come forward, but some experts see universities stacking the deck against the accused.
Bloomfield Hills attorney Deborah Gordon contends that in trying to reduce the very real problem of campus rape culture public universities are sometimes shortchanging the protections and rights that should be afforded to the accused. (Courtesy photo)
To Gordon, the case involving Melanie and Nathan is a classic example of overcorrection; at the least, it provides a window into a changing culture of sexual conduct enforcement on campus.
Let’s agree that campus sexual assault is a serious problem — and that the combination of campus freedom, access to alcohol, and an absence of clarity about the rules of sexual behavior and the consequences for breaking them helped create a murky and dangerous sexual climate on campuses — one that enabled sexual misconduct and created hurdles for victims. The universality of this situation became so obvious in the last few years that Michigan’s cautious first lady, Sue Snyder, took up sexual assault prevention as her own cause.
The new regulations at MSU have statistically improved reporting rates and findings that students have violated the standards. Over the last two years, MSU has invested extraordinary resources in revamping procedures for investigating sexual misconduct. Beyond the legal proof required, MSU has visibly heightened its commitment to making the campus a safe and respectful place. For example, all first year students are now required to attend a two-hour workshop designed to educate students about the rules for sexual consent, and sexual assault prevention. Those rules have become more detailed and explicit.
Sex misconduct reports, violations rise at MSU
Michigan State University reported a sharp increase in reports of sexual violence and misconduct during the 2015-16 school year after adopting its new Relationship Violence and Sexual Misconduct Policy. The school also reported a quicker resolution of cases and a spike in findings of violations since MSU transitioned from its previous policy.
Sexual misconduct incidents reported:
Average time to complete student conduct process:
2014-2015: 88 days
2015-2016: 57 days
Findings that students violated the relevant policy:
Source: MSU Office of Institutional Equity statistics and Title IV Annual Report
Gordon, whose two adult daughters graduated from the University of Michigan within the last five years, views herself as a feminist. But the situation has gotten out of hand, she says. Her practice is humming with similar cases from other Michigan universities. As a lawyer, she sees institutions laying waste to due process: “The net result is that the university has thrown out normal procedures for finding out the truth,” she says.
Melanie’s struggle to come to terms with her feelings and Nathan’s behavior is sincere and thought out: In her view, he violated the letter and spirit of the sexual harassment policy and needs to be held accountable for violating her trust.
“I want him to be honest with himself about his character and his beliefs and whether his actions really reflect the beliefs he espouses,” Melanie says. “I didn’t see him reflecting on it.”
An unwanted touch
Timing may not be everything but, in the case of Melanie and Nathan, it is likely something. On September 1, 2015, Michigan State announced an agreement with the U.S. Department of Education’s Office of Civil Rights, promising to “promptly and equitably respond to all incidents of sexual and gender based harassment, assault and violence (of) which the University has notice.” Sweeping in its ambition, the resolution called for the university to end harassment, assault and violence, and eliminate “any” hostile environment. Twenty-five days later — four days after the MLive article and 16 months after the incident — Melanie walked into a residence hall advisor’s office and said she had been assaulted.
The facts, as described here, are based on MSU documents, a transcript of Nathan’s interview with the MSU investigator in the case, a 90-minute in-person interview with Melanie, interviews with Deborah Gordon and with Nathan’s mother.
It was May 31, 2014, a pleasant spring evening when Nathan and Melanie (their real names are redacted in all MSU documents and changed here) “met with the plan to have sex,” as Melanie explained during a recent interview in a Williamston restaurant. School was out, but the couple – who had seen each other romantically, on and off, for most of the school year – were geographically separated.
They first met in 2013 through a campus group called Compass. Ironically, the group’s mission was to help men create a safer and more respectful campus, to support women students. The son of a Birmingham psychologist and psychiatrist, political progressives, Nathan saw himself as a political being, a person trying to do good in the world.
“He is a humanitarian. He’s the sensitive one. He’s the kind of guy you want dating your daughter. That’s the kind of person he is,” his mother, soft-spoken and weary-looking, told me. “You know, he conducted training in sexual harassment…” He was so proud of his involvement in Compass that he invited his mother to attend a couple of meetings with him.
When Nathan and Melanie began their sexual relationship in October, 2013, Nathan was a self-described virgin. Melanie, a year younger, found him charismatic, high-energy, appealing; it was she who initiated sex. But their relationship, “emotionally close” at first, became more distant and problematic by the time MSU classes ended that spring in 2014. She pushed for more closeness; he declined to call her his “girlfriend.” And he complained to friends that she belittled him, “bullied” him, as the investigator’s report noted.
Even so, separated geographically, they eagerly planned for their Memorial Day weekend encounter. She texted a nude photo of herself, and a succinct description of her mood: “Feeling frisky.” They bantered, by text, back and forth, agreeing to meet in Canton, where she was living with her parents for the summer. Their tryst took place, by necessity, in his car. When a stranger banged on the car window, Melanie was embarrassed and upset.
She cried, and said she had a flashback to an earlier, abusive relationship in high school. Nathan tried to comfort her, but she described her tearful reaction as distressed, “extremely upset.” Later, they met a few of her friends for dinner in Plymouth and, after that, walked along the train tracks for an hour or longer, as he listened, while she talked. He recalls listening sympathetically. She remembers him dismissing how upset she was, and called his reaction “invalidating.”
Eventually, they sat down, his arm around her. A few hours earlier, they had been interrupted trying to have sex in a car. She says she told him she didn’t want to have sex again that night. This time, he reached beneath her shirt and bra, in what he later described as “a momentary touching of the breast,” and she characterized in a text the next day as “a groping.”
“I told you I don’t want to do this anymore,” she recalled saying to him. “And he did immediately stop.” At no time, she said, was he violent or threatening. At no time in their relationship was he ever physically violent or threatening. She dismisses the first official account of the incident — which stated that Nathan “pushed (Melanie) down and pulled up (her) shirt” offered by the Michigan State University investigator — as an exaggeration. “He never pushed me down,” Melanie said.
In his mind, the transgression, on an evening when they’d engaged in intercourse, was redeemed by his immediate response when she asked him to stop.
She was wounded: In her mind, she’d been sharing deep feelings about being abused by men, thinking he was being supportive. Instead, she experienced his touching as an act of betrayal.
According to Melanie, Nathan knew the campus rules of sexual conduct required him to seek voluntary, “unambiguous and willful” consent to touch her sexually, even if she had given sexual consent in the past, such as when they had sex hours earlier.
[Actually, that isn’t quite accurate. As it happens, this more explicit definition of consent wasn’t in effect on that evening along the railroad tracks. MSU did not adopt the policy until 2015, with similar provisions implemented at the University of Michigan and many other universities.]
Nathan’s reliance on a perceived cue rather than explicit assent was, to Melanie, an admission of sexual assault. (She later warned other students in her poetry class to beware of him, telling a circle of students that he had “sexually assaulted” her. At least one of them inferred that Nathan had raped her.)
The next day, she texted him, angrily, saying she had made it clear she believed he had disregarded her feelings and words. “You even went to lay me down and groped me after I’d told you I didn’t want to do anything more,” she texted. He denied, in MSU documents, that she’d told him she wanted no further sexual activity.
In the fall of 2014, a few months after the May 31, 2014 incident and a full year before she reported it, she and Nathan took the same MSU residential college course – Science Fiction and Bioethics. Although it was uncomfortable for them, and they never spoke to each other, they both completed the course.
Melanie says she felt betrayed by Nathan at a time when she was in pain. Nathan says he acted appropriately and sensitively when she asked him to stop.
Change, and an accusation
More than two years after the incident, even Melanie’s gender has changed. When 16 months later she reported what happened on the train tracks, Melanie had been taking male hormones for 12 weeks; she had legally changed her name, adopting a male identity. Her voice dropped; she shaved her facial hair. The woman referred to in this account as Melanie now hopes to surgically alter her gender in the future, and lives and dresses as a man.
Back in 2014, she had also been hospitalized after a suicide attempt, and taken a semester-long medical leave to pursue therapy. While her mental fragility, hormone treatment and gender change appear to have played no role in the administration’s decision-making process, the transitioning did make a difference to Melanie.
Had taking male hormones changed Melanie’s outlook on the situation, the world?
“The world, definitely,” says the senior, who is majoring in art history and humanities at MSU. “I suppose transitioning was one of the driving elements for why I reported, because I felt uncomfortable using the men’s restrooms in my residential college, for fear that I would encounter him.”
The case was made more complicated when, in late 2014, MSU overhauled its policy on relationship violence and sexual misconduct. Because Jayne Schuiteman, the MSU investigator, had mistakenly cited the wrong date of the incident, Nathan was essentially tried twice: Once under the new policy; later, after his legal appeal, under the sexual harassment policy that was in place at the time of the incident.
In her final investigative report this past fall, Schuiteman, who is also a feminist scholar and gender studies professor, described the consensus factual account. “The evidence indicates [Nathan] made physical contact with an intimate part of the Claimant’s body – her breast,” the report reads, explaining the touch as “sufficiently severe to constitute sexual harassment.”
Nathan had acted without consent, unreasonably relying on “cues” that weren’t explicit, the report concluded. After months of costly appeals, his final sanction? He was found to have violated the university’s sexual harassment policy and banned from contact with a person he hadn’t spoken to in more than two years.
Despite a designated 60-day timeline for the whole process, Denise Maybank, MSU vice president for student affairs and services, didn’t issue her final ruling until Oct. 21, 2016, shortly after the man identified here as Melanie complained to another administration official about the slow process and suggested he might pursue another complaint, this time against the university.
Buoyed by MSU’s decision, he also considered seeking a personal protection order against Nathan in state court – even though the two hadn’t spoken or crossed paths in a year. He said he remains fearful of what might happen if they were to meet. He has gone through therapy and believes that Nathan should, too.
Ultimately, MSU modified the sanctions against Nathan, ending his probation term retroactively to coincide with his May 7, 2016 graduation. A no-contact order from MSU remains in effect, along with a finding that Nathan violated MSU’s policy on sexual conduct.
“It’s like being on the state sex registry because it doesn’t go away. It’s a stigma that will continue to haunt him and already has,” says Gordon, Nathan’s lawyer. “If a potential employer asks him if he’s faced discipline in college, what’s he going to say?”
The MSU investigator, Jayne Schuiteman, declined to be interviewed. Ande Durojaiye, director of the Office of Institutional Equity, did not return calls from Bridge.
Nathan’s mother, a clinical psychologist, says Nathan has not dated since the incident. “He’s anxious, depressed. He’s lost his self-confidence,” she says.
Despite a favorable result, the victor in this case says he’s discouraged by the process, which he found stressful, overly long, and often overwhelming emotionally. He remains angry that the nude photo he’d sent Nathan before their encounter became part of the official record, emailed to lawyers and staff investigators. Resentful of Nathan’s family’s affluence, and ability to hire an attorney, he remains disturbed that Nathan has not demonstrated remorse. Given what he knows about the sexual misconduct complaint process, would he do it again?
He shakes his head, slowly. “No,” he says. “If I could go back in time, I would not say anything. It’s so sad for me because the process was so traumatic. It was absolutely not worth it.”