Two U-M sexual assault cases, little satisfaction

Brendan Gibbons

Brendan Gibbons (Photo courtesy of MLive)

With so many options to report sexual misconduct on college campuses, why do so many students go away from the process unhappy with the outcome?

At the University of Michigan, a rape complaint against a former Wolverine placekicker, Brendan Gibbons, strung out for nearly the entire period of Gibbons’ enrollment at the university. Promptly reported, backed up with a police investigation, Gibbons nevertheless stayed on campus and continued to play football until his eligibility had nearly expired – at which point he was expelled from U-M, raising criticism that the school was more interested in preserving Gibbons’s athletic career than in seeking justice for his accuser.

At the other end of the spectrum, former U-M student Drew Sterrett, now living in New York, is bringing suit against the university, claiming the school’s investigation into whether he sexually assaulted a female student (he contends the sex was consensual) so violated his rights of due process that he found it impossible to stay in Ann Arbor and may have poisoned his hopes of becoming an engineer, even at another school.

The kicker

The incident at the center of the Gibbons case occurred in 2009, when as a newly arrived freshman, the football player is alleged to have pulled another freshman, a young woman, into a darkened bedroom at a fraternity house, pushed down her underclothing and raped her while she told him to stop. The woman reported the incident to the university and to police, and received a rape exam at a hospital within a few hours.

But it wasn’t until November 2013 that Gibbons, by then a senior playing out his last games on the football field, was notified by the university that he had been found responsible for “engag(ing) in unwanted or unwelcome conduct of a sexual nature, committed without valid consent…” On Dec. 19 of last year, the regular football season over, Gibbons (who said the sex was consensual) received a letter from the Office of Student Conflict Resolution, informing him of his permanent separation from the university.

The incident is one reason U-M is under federal investigation for its sexual-misconduct procedures. University officials will not discuss the Gibbons case, citing privacy concerns, but a Central Student Government Task Force found that the university “failed to explain” the four-year delay in handing down Gibbons’s punishment, and that just-fired football coach Bracy Hoke “knowingly issued false (public) statements in December 2013 concerning the (eligibility) status of Gibbons.”

The timeline of the Gibbons case wound through the change in university policy on sexual misconduct dictated by a 2011 “Dear Colleague” letter from the U.S. Department of Education’s Office of Civil Rights, sent to federally funded campuses all over the country, explaining their responsibility to address sexual misconduct under Title IX. That letter is seen as a watershed in how universities address such behavior on and off campus, suggesting disciplinary procedures and instituting a new, lighter burden of proof to find in favor of student victims. It’s unclear whether the changeover to a new sexual misconduct policy was part of the university’s delay in the Gibbons case.

The federally driven change has not been without problems or objection. Writing in the New York Times last month, Jed Rubenfeld, a professor of criminal law at Yale Law School, expressed concern about campuses lowering the standard of evidence against the accused:

“Mistaken findings of guilt are a real possibility because the federal government is forcing schools to use a lowered evidentiary standard — the ‘more likely than not’ standard, which is much less exacting than criminal law’s ‘proof beyond a reasonable doubt’ requirement — at their rape trials. At Harvard, 28 law professors recently condemned the university’s new sexual assault procedures for lacking ‘the most basic elements of fairness and due process’ and for being ‘overwhelmingly stacked against the accused.’”

The engineer

In Sterrett’s telling, the incident that led to his lawsuit was a one-night hook-up between friends.

In his lawsuit, filed in federal court last April and naming several U-M employees, Sterrett’s lawyer, Deborah Gordon, describes an incident that didn’t involve blackout drinking or apparent coercion: Sterrett had sex with a female resident of his dorm after a social gathering in his room. She climbed into bed with Sterrett, kissed him and had consensual sex with him in the bottom bunk, while Sterrett’s roommate lay in the top bunk, the suit said.

At no time did the roommate hear the woman protest or call for help, the suit said. In fact, the suit notes, the roommate sent Sterrett an annoyed Facebook message at 3:19 a.m.: “Dude, you and (the Complainant) are being abnoxtiously(sic) loud and inconsiderate, so expect to pay back in full tomorrow.”

The following morning, the suit said, the two agreed the act was a one-time mistake neither wanted to repeat, and the school year ended without further incident.

The woman declined, through her lawyer, to be interviewed by Bridge. But in deposition testimony obtained by Bridge, the woman disputes Sterrett’s version of the evening. She claims she did not give consent to have sex and indeed said “no.” She also denied allegations that she had asked Sterrett to get a condom; she testified that she told him during the incident, "You’re not wearing a condom."

In any event, that summer, the suit claims, the woman’s mother found a diary her daughter had kept that mentioned the incident. Shortly after, the student initiated a sexual-misconduct complaint against Sterrett with the university’s Office of Institutional Equity, claiming she had not given consent.

From there, the suit contends, Sterrett’s college career and reputation evaporated in an Orwellian succession of university hearings notable for their lack of due process. He said he was first contacted on summer break, and was asked to speak to an OSCR investigator via Skype before he even knew what the complaint was about. His Skype interview was conducted with no lawyer present, and when he asked whether he should delay the interview to obtain an attorney, he was told that the investigation would continue without his cooperation and “in any event decisions would be made in the next several days,” the suit claims.

Sterrett said he was never permitted to question witnesses or even know their names, and only received a summary statement of the accuser’s account after the investigation was complete.

With no formal hearing, Sterrett was informed in November 2012 that the investigation had found he had “engaged in sexual intercourse with the Complainant without her consent and that that activity is so severe as to create a hostile environment.” He appealed under the OIE’s procedures, but the finding was upheld.

The terms of a “resolution agreement” required Sterrett to be suspended from the university until May 2016 (after the woman who filed the complaint had graduated), after which, if he were readmitted, he’d be on probation, not in good standing, and subject to expulsion for any violation in conduct.

“And he’s training to be an engineer,” said Gordon, the lawyer. “He wants to go to grad school, and he’d have to put this on his applications. He’s the equivalent of a sex offender. It’s an utter travesty.”

Sterrett chose not to return to school and is living in New York. Gordon said he does not intend to return to the University of Michigan and wants to attend another school.

The accuser's lawyer, Joshua Sheffer, emailed Bridge a statement: "While we strongly disagree with Plaintiff’s description of the night in question, we do not feel that it should be played out in the press. The University of Michigan thoroughly investigated the matter. Plaintiff and my client each had an opportunity to present evidence. Plaintiff was found responsible; he appealed that decision, and it was upheld. This lawsuit is between Plaintiff and the University of Michigan; my client wishes only to put this traumatic event behind her and move forward with her education and life."

A university spokesman said the school cannot discuss individual cases, again citing privacy concerns. U-M’s lawyers have filed a motion to dismiss the case, and it remains pending.

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