A Gibbons timeline (and a few undisputed facts)

Submitted by Erik_in_Dayton on January 29th, 2014 at 11:56 AM

I'm creating this because it seems that people are missing some of the important facts that folks dug up and posted in the front page thread on this subject.  (Mods, no hard feelings if you take this down.)  I've done my best not to interject any opinion into what is below.  My purpose in posting this is merely to try to have everyone on the same page as far as facts and timing.

2009 and earlier:  OSCR investigates sexual assaults for U of M but only does so if the complaintant cooperates.  They find someone guilty of sexual assault only if a "clear and convincing" burden of proof has been met. 

Late Nov. 2009:  The incident occurs.  Police reports are made.  Gibbons, of course, denies any wrong-doing...Not long after, Taylor Lewan allegedly threatens the young woman involved with rape if she presses forward.  I have never been able to determine whether Lewan admitted to making this statement.  Please let me know if you know otherwise...We don't know what happened internally to Lewan and Gibbons, but neither is suspended...EDIT: In fairness to Lewan, myself and others have inferred from a police report that Lewan was alleged to have threatened the young woman, but the police report in question is redacted as far as names (at least in the report available online).

Late 2009-Early 2010:  The young woman decides she does not want to press charges, thereby ending the state's investigation.  What OSCR does at this point is unclear.  

2011:  The federal government, via Title IX, tells universities that they must investigate alleged on-campus sexual assault regardless of the cooperation or lack thereof of the alleged victim.  It also tells schools to use a "preponderance of the evidence"  standard when evaluating guilt.  http://www.michigandaily.com/news/university-adopts-new-sexual-misconduct-policy-0?page=0,0 

Aug. 2011:  U of M institutes an interim policy designed to comply with the new Title IX mandate.  (See the link above.)  It appears that the interim policy complied with the mandate to use the preponderance of the evidence standard and to investigate sexual assault claims regardless of cooperation from the alleged victim, but the university's online explanation of this is, in my opinion, somewhat unclear.  http://studentsexualmisconductpolicy.umich.edu/faqs 

The implementation of the interim policy appears to have led more women to come forward to make complaints, as the number of sexual assault complaints made on campus rose from three in 2010-2011 to 62 in 2011-2012.  http://www.michigandaily.com/news/university-adopts-new-sexual-misconduct-policy-0?page=0,1 

Aug. 8, 2013: The Washtenaw Watchdogs blog brings the Gibbons incident back into the public eye.  

Aug. 19, 2013:  U of M implements its current policy, described by the Daily as the result of a two-year fine-tuning process of the interim policy.  (See all links above.)  The current policy unquestionably calls for investigations of alleged sexual assaults regardless of cooperation from the alleged victim and unquestionably uses the "preponderance of the evidence" standard regarding guilt.

Nov. 20, 2013:  OSCR produces a document telling Gibbons that a preponderance of evidence supports the claim that he committed sexual assault.  http://www.michigandaily.com/sports/former-kicker-brendan-gibbons-expelled-sexual-misconduct 

Nov. 23, 2013:  Gibbons plays against Iowa.

Nov. 30, 2013:  Gibbons does not play in the OSU game, purportedly because he is injured.

Dec. 4, 2013:  Gibbons meets with OSCR to discuss the findings against him. (See last link.)

Dec. 16, 2013:  Coach Hoke states that Gibbons may not play in the bowl game because of an injury.

Dec. 19, 2013:  OSCR produces a letter telling Gibbons that he is expelled.    http://www.michigandaily.com/sports/former-kicker-brendan-gibbons-expelled-sexual-misconduct 

Dec. 23, 2013:  Coach Hoke tells the media that Gibbons will miss the bowl game because of a "family matter."

A final note:  Dave Ablauf, in the Daily article linked above (the last link), states that the AD cannot comment on the academics or university standing of an athlete.  University spokesman Rick Fitzgerald also said in that article that he could not comment because of the Family Educational Rights and Privacy Act (FERPA).  One could quibble a bit about what Ablauf and people in the AD can say about Gibbons if they wanted to test the bounds of FERPA, but there is little doubt that U of M's legal people believe exactly what Ablauf said, namely that he could not comment on the relevant issues.  One errs on the side of caution in such circumstances...I point all of this out to say that Coach Hoke was never free to say that Gibbons was no longer at the school (save the unlikely event that Gibbons would have consented to this).  I don't state that as a comment on what he did say. 

EDIT: mackbru seemingly correctly points out that the school can at least arguably say whether someone is enrolled.  See the link below that describes a FERPA exemption for "directory information."  I highly doubt this covers saying that someone was expelled, but I am not a higher ed lawyer.  There may be some big grey areas here, and none of this post should be taken as legal advice (sorry - had to say that). 



Final final note: Credit to Don, Kilgore Trout, and guthrie for digging up much of what I posted above.  Also thanks to those in this thread who have made suggestions.




January 29th, 2014 at 12:03 PM ^

and thanks for posting.  This hopefully will cut down on the arguing we do amongst ourselves.  But one thing that I'm very curious to know is what happened between Aug 2011 and Aug 2013.  This is what's most troubling regarding the delay of action in the alleged incident.

oriental andrew

January 29th, 2014 at 12:11 PM ^

I would imagine that they either did not want to or feel the need to begin investigations into "abandoned" complaints until the policy became official, which appears to have happened in August 2013.  This would fit well with the timeline that the case may have been investigated and said investigation completed by November.  


January 29th, 2014 at 12:35 PM ^

not make sense to me that the investigation into this would resume based on the new requirements if the investigation had been completed and closed.  I know we are not talking courtroom logistics here but a change in the "law" in 2011 making something a rape that was not in 2009 could not lead to charges, and going by the same logic and typical bar on "ex-post facto" type of investigations, it would seem unlikely that an investigation that was properly closed by at the time, proper investigative measures, would then be re-opened to be reinvestigated based on the new requirements.  And to do just that to expel a graduate student, when, if said player was expelled, would raise significant questions regarding why he was ever playing football to begin with, makes even less sense.  That is one narrative that seems to be prevelant that to me just does not add up.  New evidence or a suddenly cooperative and perhaps even determined victim makes more sense to me than that.


January 29th, 2014 at 12:51 PM ^

Agreed. The rules didn't suddenly change in late 2013; they'd been in place, on an interim basis, since 2011. Common sense says there was some sort of new development that caused either the accuser or the the school to re-open the case. And, given that Gibbons was expelled under the code governing the sexual code of conduct, one wonders whether another shoe will drop, legally.



January 29th, 2014 at 3:33 PM ^

I am saying is this.  Standard 1 is in place as of X date.  Accusations are made against Gibbons, the accusations including the lack of parcipitation from the accuser are considered, and Gibbons is cleared per Standard 1, the only possible Standard to be used at the time.  Then on Y date, Standard 2 is put in place, which would have resulted in action taken against Gibbons if it would have been in place instead of Standard 1 when the incident took place.  Gibbons was correctly adjudicated under Standard 1, Standard 2 does not apply to the incident because it was not in place when the incident happened and would make no difference with regard to the Gibbons incident.

Like I said, it is not a court but this is a pretty routine principle that is followed in pretty much every circumstance in life.  You can't be rightly be fired for breaking a workplace rule that was not a rule when you broke it.  Unless there was new evidence that was turned up that made their initial determination flawed under the original standard, I do not know how he can rightfully be expelled unless the first investigation never actually concluded until Standard Y had been implemented (even that would be on somewhat shaky ground I would think).  I am not coming to his defense, I just don't believe that narrative.


January 29th, 2014 at 3:55 PM ^

I disagree; assuming facts not in evidence.  Gibbons was not "cleared per Standard 1" and his situation was not "correctly adjudicated under Standard 1" based upon the information provided.  According to the OP, the actions of the University at the time of the initial incident were "uncertain."  There is a big difference between clearing someone and deciding not to proceed because the alleged victim did not wish to participate in the proceeding.  Based on the OP, the only time the University made any factual determination regarding Gibbons' acts was under Standard 2.  I am not even sure what standards you are referring to.  Two rules changed during the interim (1) universities now have an obligation to investigate and discipline (as necessary) sexual misconduct, regardless of the alleged victim's cooperation, and (2) the burden of proof became a preponderance of the evidence rather than clear and convincing evidence.  


January 29th, 2014 at 7:16 PM ^

Standards I mean the conditions before and after the rule implementation. And while you are correct that he was never officially "cleared," at some point I have to believe somebody shelved this thing and decided it was a no go 4 years ago until some change in circumstance came about. The other option, that this seriously took 4 years to investigate, leads me down the "cover up" road, and that is the road I don't want to go down.

PB-J Time

January 29th, 2014 at 1:25 PM ^

I suppose I don't understand the policy. A schools' non-investagory body can, in the absence of criminal or civil charges, irreporably punish someone accused of a crime, including when the alleged victim does not pursue action. This again is done completely outside of the crinal justice or legal system. And you have a weaker standard of guilt than what has been used for hundreds of years to determine innocence or guilt? Am I describing this wrong?

To me this seems like this has the potential to have problems. BIG problems. False accusations are of course the risk that comes to mind. I AM NOT SAYING OR ARGUING THAT HAPPENED IN THIS CASE, but am trying to get clarification (not a lawyer) on a policy which does not make sense given my understanding.


January 29th, 2014 at 1:54 PM ^

Because this is not a criminal preceding but an academic preceding, constitutional laws don't necessarily apply here, therefore a lower standard of gulit can be used.  In a criminal preceding, stakes are raised, there is the possibility of jail time, being branded a sexual offender etc. and for those reason the government uses the "beyond reasonable doubt" criteria of guilt.  Because the University can't hand out those sorts of punishments, they are not held to the same standard. At least that's what I gather...

PB-J Time

January 29th, 2014 at 2:41 PM ^

A good explanation, but I would argue that expelling them from school is quite a significant punishment in itself. The punished will have quite a difficult time explaining to potential employers why they transfered schools, especially like someone in this situation who is likely only a few credits from graduation.


January 29th, 2014 at 3:10 PM ^

The point here, I think, is that the school was not investigating Gibbons for the crime of rape, but for the violation of the student code of conduct regarding sexual relations with another student.  Just as lying or cheating isn't illegal, neither is this violation of the student code of conduct..  The school can expel students for behavior that falls short of criminal behavior, using standards of evidence that fall short of those required for criminal conviction.  it isn't a "punishment" per se, it is an administrative action designed to protect the other students at the school.

The expelled student need make no explanations whatever for changing schools or leaving school.  The school that expelled him or her isn't allowed to say that they were expelled, nor why, under these circumstances.  The only real requirement is that the student receive due process, which Gibbons did.

And he wasn't a few hours short of graduation; he had already graduated.  Not that this fact is relevant to the process or the goal of the policy.

PB-J Time

January 29th, 2014 at 4:23 PM ^

Good points. My larger point is that regardless of intention, the consequences of this governing body's decision are very real and have profound effect (agreed that Gibbons already graduating is not the point here).

The problem with your analogy is that the person in question is not being reprimanded (or 'administrative action' or any other euphemism) for cheating on a test. The person is being reprimanded for what is in fact a very significant crime. So punishing someone for a criminal act without them being charged as such strikes me as quite odd. 

I've tried for the most part to post about this policy in general terms and not specifically about this case, but I would add that in a case such as this where the person in question is a well known member of the student body, this person is now publically known as guilty of improper sexual conduct/assult (even if this is not the intended effect, are we to think anything else?) Phrased another way, I would argue that most people here, regardless of how they felt before yesterday, now are more likely to believe that Gibbons did perpetrate this act. This happened without criminal due process (although I agree he was given administrative due process in this case).

Bottom Line (for me)- I think something this profound and significant I would prefer to have handled in the court as opposed to a body completely outside of the criminal justice system, but I am open to counter-argument


January 29th, 2014 at 6:32 PM ^

I understand your point, but the fact of the matter is that this isn't a case of someone being punished for committing a crime, it is a case of the university deciding that non-criminal behavior went so far beyond the bounds of the acceptable that the student must be expelled to protect the students who remain.

I personally believe that both parties in this case were intoxicated, and that both had their judgement sufficiently impaired that she thought she was saying no and he thought she was saying yes.  I don't think a crime occurred.  i think bad judgement occurred, and that bad judgement was Gibbon's decidsion to get so intoxicated that he left himself open to a situation where he couldn't properly judge the degree of consent that he in fact got.  that's worthy of expulsion but not criminal sanction, and that's what happened after a competent (I believe) tribunal looked at all the available facts, including his own testemony.

I don't think a court is capable of handling such nuances, nor is a court interested in the welfare of the remaining university students.


January 29th, 2014 at 3:48 PM ^

Much of this has to do with policy changes related to Title IX, which although well intentioned, is in many ways flawed. I'm a psychologist and have worked at several university counseling centers, and I believe this 2011 change in policy applies to all NCAA schools (I remember we had many long confusing discussions about the implications of this change at my counseling center). 

Obviously, we were big time advocates for the rights of sexual assault survivors (and unfortunately I've heard plenty of first hand stories in which the police and/or university completely dropped the ball in not supporting a survivor enough, half-assed investigations, etc), but we weren't thrilled about this change in policy. We were exempt from reporting such abuse due to counselor-patient confidentiality, but most other departments were not. Although generally speaking we want to empower survivors to take action, many feel shocked, scared, confused, and/or not ready to do so. Unfortunately though, if a survivor shares her story with a prof, RA, ect., that person is required to report the assault and the University must investigate, whether or not it's in the survivor's best interest and whether or not she wants it to be reported/investigated. 

I'm still not sure what happened between this change in policy in 2011 and the verdict in 2013 (backlog due to re-investigating numerous cases? new evidence? someone spoke up? someone didn't mean to speak up but shared the story with an administrator?), but I thought this bit of info about the policy change might shed some light on the complexity of the situation. 

The FannMan

January 29th, 2014 at 12:40 PM ^

I think you are missing the point a bit. 

The point isn't the standard, its when the University actually started going through the old cases.  The U may have made the decision not to take that step during until the policy became final.  Thus, no review was done until Nov. of 2013.  In effect, the U may not have implemented that part of its interim policy until it became final.  The University probably didn't want to start charging people for old cases, only to have that part of the policy not make it to the final version.

l'll grant you that a two year delay in finalizing a policy seems long.  However, I've seen longer delays - especially where the University may have tried to get some kind of gudiance from the Department of Education that it's "interim" policy was acceptable before it became final.  

It could also have been a simple judgment call by one person.  I have worked with some larger governmental organizations, and you see stuff like this all the time.  Someone asks, "Hey should I start looking at the old cases."  That someone's boss says, "Wait until the policy goes final.  It shouldn't be that long."  Then months go by and the decision builds up a kind of inertia.  Admittedly, this is speculation on my part.  However, this actually makes more sense to me than a consipracy over several unrelated parts of the University to cover-up an alleged rape by a kicker until just before the OSU game in his senior year.


January 29th, 2014 at 4:03 PM ^

I don't disagree with you, but wonder if there was ever an initial complaint requiring the University to act prior to 2013.  The victim, apparently, did not cooperate with the criminal prosecution and may not have filed an initial complaint.  Since the victim is not the only person who can file a complaint, perhaps someone triggered the process in 2013.  Just wondering.


January 29th, 2014 at 12:31 PM ^

But I'm guessing that they only looked at cases of current students. If a student had graduated or otherwise moved on, then they probably didn't bother (it's hard to expel someone when they aren't actually attending the university anymore). Gibbons was still a student...and even though the incident was almost 4 years old, it occurred while he was a student at the university. 


January 29th, 2014 at 12:38 PM ^

the new requirements specifically called for dead cased to be recessitated if the student was still enrolled, nothing remotely progressive could come out of doing so.  The complainant, if still uncooperative, would certainly not seem to want the issue to be rehashed, and what the hell difference would it make to her if he was expelled, the damage to her would still be done.  I agree, and as I said above, that just does not add up.


January 29th, 2014 at 2:21 PM ^

I wouldn't think about it in terms of protecting the alleged victim or punishing the accused for a past act. Think about it more in terms of the university reviewing evidence and deciding it is more likely than not that a person committed sexual assault on another student and, therefore, moved to protect the rest of the students from that person.


January 29th, 2014 at 3:16 PM ^

Bingo!  I think you hit the nail on the head.

None of this administrative stuff has to do with getting justice for the victim, it has to do with protecting the other students.  That's why the standard of evidence is so low, I believe.

it isn't sexual assault, by the way, it is sexual misconduct (which can include a form of sexual assault, but the latter term is probably best reserved for actual criminal behavior; the University sticks with "misconduct" in this case).


January 29th, 2014 at 1:42 PM ^

there is a LOT more to the story...but folks really don't want to know it...seems to be common here. Put on the we are better than you (insert any team with problems here). Hate to say it, but the injury/family reasons statement is no better than teams we poke fun at...welcome to reality. Michigan football has problems sometimes too.


January 29th, 2014 at 2:20 PM ^

Hoke can't comment on Gibbons' acedemic standing at the university b/c of FERPA laws so he can't say anything.  It seems like the only thing people have a problem with is the difference between "family reasons" and "violation of team rules." Which is fair but a decision hadn't come down from the univeristy until December so no use putting the kids name out there until all the facts are in and saying he's off the team would warrant futher questioning and inquiry which Hoke would have to deny and garner significant media hype.  Also I don't know the exact lettering of the FERPA laws but to me it is better to play it safe than walk the line of federal law.  You could maybe argue that he shouldn't have played the Iowa game.  Obviously the University wanted to release a statement so there wasn't really a need for Hoke to do so before hand in my opinion and soon after the allegation were brought to Hoke's attention (I'm assuming that happened around November 20) Gibbons didn't play anymore games.  Kicking him off the team and making a big fuss would have caused more harm than good and provided a big distration to a team heading in to the biggest game of the year.  It's not like Hoke covered it up, he just didn't comment on an ongoing investigation which I'm not sure he even legally could.


January 29th, 2014 at 3:56 PM ^

I agree. I think Hoke is generally an honest guy, but he's been known to spout plenty of "white lies." Obviously this is comparing apples and oranges as far as the importance of the situation, but week after week the guy continually denied anything was wrong with the offensive gameplanning/playcalling and chose to blame it on "execution" by the players. Don't know to what extent this is general coach speak (though some coaches can be quite blunt and direct), coaching from DB, or a desire to protect people from media scrutiny. 

In any case, it seems he doesn't like to go the "no comment" or direct (e.g., "obviously the playcalling could have been better, we'll review it like we always do," "Brendan violated team/university rules and that's all I can say") route. 


January 29th, 2014 at 9:37 PM ^

The April 4, 2011 "Dear Colleague" letter from the U.S. Dept. of Education's Office of Civil Rights put schools and universities receiving federal funds on notice that their Title IX obligations pertaining to Sexual Harrassment include Sexual Violence. It states that sexual violence refers to physical sexual acts perpetrated against a person's will, or where a person is incapable of giving consent due to the use of drugs, alcohol or other disability. Criminal acts were explicitly included.

The numerous objections to this centered on the lower evidentiary standard for Title IX violations (predominance of evidence) than for criminal acts and related concerns about due process. It's, therefore, not at all surprising that the University of Michigan (and others) established interim policies for compliance and waited for clarity before setting a final standard and enforcing it. Last summer's settlement agreement between the University of Montana, the OCR and the US Department of Justice probably helped to move things along.



January 29th, 2014 at 4:37 PM ^

Completely agree. Isn't this chronology an admission that U-M football knew or should have known it had a preponderance of evidence to suggest it was providing a scholarship to, and protecting, a criminal sex offender? The parallels to Penn State are striking, if not to the extent of repulsiveness.


January 31st, 2014 at 1:40 PM ^

We don't know that what Gibbons allegedly did rose (or descended, I guess) to criminality.

The university goes farther than the criminal code in terms of what kind of behavior is not acceptable. Also, the threshold of proof is much different, it's closer to a civil case than a criminal case under the changes to Title IX.

You may be right and he might deserve to be in jail, but we don't know that and, apparently, neither did the university nor the police and prosecutor. The same goes for everybody calling what he did "rape" or calling him a "rapist." That may well be true, but we don't know that and shouldn't say it without more information.


January 30th, 2014 at 1:40 AM ^

I know a lot of people are still concerned with the supposed 3 day gap between Gibbons being notified and the Iowa game, but has anyone considered the possibility that he actually HADN'T been notified? The only thing the article says about that date is that a LETTER was signed and dated that date. Letter, along with the fact they also mailed him his expulsion notice, leads me to believe that it's entirely possible that they wrote that letter the 20th of November, mailed it out on the 21st, and Gibbons/Hoke/Brandon etc. didn't even receive it until AFTER the Iowa game.


January 29th, 2014 at 12:03 PM ^

This is excellent work Eric.  I would suggest however moving it to the diaries so it doesnt get bumped off the front page as people make comments or suggestion that necessitate edits.


January 29th, 2014 at 12:04 PM ^

it will take a while for this to be sorted out however. WBBL's "Huge" mouthpiece is making inflammatory statements on the radio questioning whether Hoke should be discharged. What a tool and a hothead. I say we should all be patient and let the facts speak and not over speculate or fill in the void of information with subjective opinion and presumption.


January 29th, 2014 at 12:26 PM ^

Hoke's employment should CERTAINLY be part of the discussion. There was enough evidence to expel Gibbons. Only reason he was not charged wad because she did not press charges (during which time Lewan tried to intimidate her to not come forward).

Hoke should have looked into thus matter after he got hired and at least read the police report. Reading that police report should have resulted in Gibbons getting kicked off the team, and Lewan as well.

What Hoke knew when and what he did about it should certainly part of this discussion.


January 29th, 2014 at 3:33 PM ^

A head coach certainly may choose to conduct his own investigation, and is not bound by the outcome of the OSCR process.  As Erik points out below, however, a coach has limited investigative means at his disposal -- as an obvious example, he can't compel the alleged victim to speak to him.  Heck, for all we know -- among the many other facts we don't know -- Hoke might have looked into this himself and decided (like law enforcement did in 2009) that there were too many questions/uncertainties to impose any discipline, or he might have imposed some sort of behind-the-scenes discipline.


January 29th, 2014 at 12:35 PM ^

One thing I'm sure of - and I apologize to the extent that I'm repeating something I said several times yesterday - is that a football coach doesn't have any good means of determining what happened in a case like this (assuming the player denies wrongdoing).  My instinct after reading the police reports was that Gibbons was guilty, but I don't know that I would have convicted him if I were on a jury. 

What standard should the football team use to determine eligiblity?  I don't know, but (easy to say - I grant) you have to use some caution when you have a more-or-less he said/she said situation.  Otherwise you end up with guys losing a great deal who didn't do anything.

Hoke certainly has a responsiblity to make sense of things himself, but he's also not a lawyer or professional fact-finder.  A school and/or police force have to be the leaders in any investigation. 


January 29th, 2014 at 12:45 PM ^

Hoke should have used the same criteria the school used, is he more likely than not to have done this act. The police report is bad. The only reason he was not charged was because she did not want to press charges, which may have resulted from intimidation from other players. Hoke has a duty to not smirch this institution, and he failed. His continued employment should certainly be reviewed.


January 29th, 2014 at 12:52 PM ^

So you wanted Hoke to look at a year-old police report (which, by the way, is a report and not a conclusion about the truth of events or the culpability of any particular person) and personally determine that Gibbons committed sexual misconduct with zero process whatsoever in an investigation seperate from the University's existing body for handling claims of misconduct?  That is ludicrous.


January 29th, 2014 at 1:52 PM ^

yeah exactly, hoke cannot kick a kid off the team for alleged incident which occurred and was closed (at least temporarily) by the time he took over the team....if every coach or administrator gets emotional and goes off half-cocked and acts without clear understanding of full story, thats just a mess waiting to happen....whats the point of administration procedures if not followed?  and due process is kind of significant.  also these decisions are never made in a vaccuum by head coaches....always lawyers or advisors as well as administrators involved in these things, given it was not a driking ticket for a player or something coaches typically handle in-house w/o legal or administrative oversight.  hoke seems to have demonstrated the character and nothing crazy urban-like in his past that he should receive benefit of the doubt from most out there until proven otherwise.  i certainly wouldnt want the women in my life assaulted or given the run around by authorities in such instances, but also dont want half-cocked emotional decisions to ruin the lives of guys that were not proven to have done anything wrong.  and im guessing hoke and his bosses and advisors feel the same


January 29th, 2014 at 12:58 PM ^

He has the duty once he is hired. It is not like he got hired six months ago. This is a huge black mark on the university. He had ample opportunities to address it. He didn't. He needs to stand accountable.