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). 

http://www2.ed.gov/policy/gen/guid/fpco/ferpa/students.html 

 

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.

 

Comments

Erik_in_Dayton

January 29th, 2014 at 12:26 PM ^

I think - and I emphasize the word think - that the process isn't done at that point.  My instinct while reading about what happened is that the OSCR told Gibbons essentially that there was enough evidence against him for a guilty finding but that he had the chance to respond.  If I'm correct, it wasn't until the period between Dec. 4 and Dec. 19 that OSCR makes a final determination of guilt.  On Dec. 19, of course, the letter is created.

ontarioblue

January 29th, 2014 at 12:33 PM ^

However, it all leads back to when was the coaching staff made aware of the report.  Was it before the November 20th meeting? Was it after they came back from Iowa or were they not informed until December 20 when he was expelled.  Most likely we will never know the truth.  My guess is that the coaches found out sometimes after the Iowa game and pulled the plug on Gibbons then, at least that is what I hope happened.

GoBLUinTX

January 29th, 2014 at 1:07 PM ^

he spoke about a pulled muscle and refered to it again a few weeks later at the December 16th presser.  Big of people to keep an open mind of what was known by whom and when though I don't understand why the mind then insists Hoke knew something on December 20th or 23rd when there is an absence of such evidence.

ChiBlueBoy

January 29th, 2014 at 1:27 PM ^

I think the Iowa game is a bit of a red herring. BG still had due process rights at that time. He had not yet been expelled. He had a meeting with the OSCR AFTER the Iowa game. At the time of Iowa, there was no final decision on his status and, as such, no clear reason why Hoke would know that he would be expelled or that he would keep him from playing. Otherwise, to me, it's like finding someone guilty after the prosecution has made it's case but before the defense has had a chance to present evidence.

grumbler

January 29th, 2014 at 4:06 PM ^

He was never told by the university that the university thinks that he committed "sexual assault."  Even if you want to make up facts about which there is no evidence, don't make up facts about which there IS evidence.

He was expelled because the University determined that he enagaged in sexual misconduct.  Yes, the OP makes the same mistake you do, but even in the visible portion of the links in the OP the word "misconduct" appears, not "assault."

Why is this important?  Because misconduct is a less severe action than assault, and using the harsher term inappropriately merely exacerbates the already frothy atmosphere here.

 

Wolverdore

January 29th, 2014 at 12:24 PM ^

EDIT:  Sorry, but while writing this down, others jumped on the same issue and probably explained it in a more concise fashion.

 

Without getting into anything to do with the alleged act itself, because it is repulsive, if true, I do have one question regarding Hoke/Brandon and Co.'s actions.

I understand why he was evasive in his responses to the media as to Gibbons.  He didn't really have a choice in the matter as it was an internal issue, not a public/criminal issue.

It states in the article and timeline above that a letter dated November 20, 2013 was produced that stated that beyond a POE, he had committed sexual assualt in violation of the student code.  When did Gibbons receive this correspondence and when did Hoke/Brandon and his staff find out about it?  Was it sent to his home in Florida and Gibbons didn't find out until his parents received it and informed him?  Does Hoke/Brandon not find out until Gibbons tells them himself.

The reason I ask this is he played in the Iowa game three days after that letter was produced.  If Hoke/Brandon let him play while fully knowing this letter existed, they have problems.  I understand at that point it was only a charge from the University and Gibbons had not given his side of the story as he did in early December, but it is still an allegation and he could have had a "muscle issue" a week earlier and not travelled.  

On the other hand, if they knew nothing about it untiil after the game, then I believe they acted correctly and he didn't play against OSU or in the Bowl Game.

pearlw

January 29th, 2014 at 12:54 PM ^

This is a big point that we dont know and really determines whether Hoke has blame here. I think this is a really key point you make that is not being emphasized enough. We dont know what a letter dated Nov. 20th means? How was it communicated? Who received it and when? Its possible Hoke knew on 20the and let him play at Iowa. But its also possible the letter gets mailed next morning on the 21st and doesnt get received until after the weekend by Gibbons alone. Its hard to make any comments on Hoke's decisions without knowing this.

I Like Burgers

January 29th, 2014 at 12:40 PM ^

Schools use FERPA to hide anything and everything they can with athletes.  And its honestly comes in to play much more in the athletic world than anything else.   If you remember when the whole Ohio State thing went down, all of the athletes names were redacted in the original documents (unredacted forms turned up later).  This was because of FERPA.  Often, media members will FOIA schools looking for information to back up stories.  Schools will routinely deny these requests because of FERPA, and whatever they do turnover is so redacted, that its useless.

Jon06

January 29th, 2014 at 2:30 PM ^

Further, you authorize the NCAA to disclose personally identifiable information from your educational records (including information regarding any NCAA violations in which you may become involved while you are a student-athlete) to a third party (including but not limited to the media) as necessary to correct inaccurate statements reported by the media or related to a student-athlete reinstatement case, infractions case or waiver request or to recognize your selection for an academic award (e.g., Elite 89). 

I don't really understand why people swallow the FERPA line, especially in the OSU infractions case mentioned in the comment above yours.

Yeoman

January 29th, 2014 at 2:34 PM ^

So you're suggesting that the NCAA should disclose information about Gibbons's disciplinary hearing, in order to "correct inaccurate statements reported by the media"?

That'd be strange, but it's the only way I can even imagine how this waiver might be relevant.

Jon06

January 29th, 2014 at 3:35 PM ^

I don't really have a problem with anything that's happened on the University's side (except insofar as I think Hoke should decline comment instead of being misleading in cases like this). I guess I should have acknowledged after looking at the waiver that Michigan may be right about what they can disclose in this case, but I don't know what I think about that yet. Is there an NCAA infraction here, given that Gibbons played 3 days after learning he was about to be expelled? Are there morals clauses? I don't know.

Anyway, if you review the conversation here you'll see that my first comment just said I thought athletes waived FERPA rights. By the time I looked up the waiver, I was thinking about the OSU stuff, since that's what the other person responding brought up. I do think it's a general practice of NCAA-member institutions to hide behind FERPA illegitimately.

To be clear, for all I know, you're right that in this case FERPA actually applies. But I do not think universities have earned the benefit of the doubt when they invoke FERPA. That's why I raised the issue in the first place.

991GT3

January 29th, 2014 at 12:27 PM ^

The change in the standard of proof was a game changer in this debacle. The initial proof requirement of "clear and convincing proof" is a much higher burden than the changed standard of "preponderance of the evidence". This lower standard only requires that it more than likely than not that it occurred. Stated in another way, 51% of the evidence points to a rape and 49% it did not happen. Clear and convincing standard would almost require 100% of the evidence pointing to rape.

Though I have issues with how the University, Hoke and Brandon handled this matter, I cannot fault them for not revealing that one of their players raped a woman because it is not an official judgment by our courts but rather an administrative finding using a very low proof standard.

That is why the DA of the county probably did not prosecute Gibbons. In a court of law, he could not meet the standard of beyond a reasonable doubt. The DA concluded he could not do that.

Certainly neither Hoke or Brandon should be fired over how they handled the affair.

kakusei

January 29th, 2014 at 6:53 PM ^

victim would not cooperate. for criminal charges the DA would need to prove guilt beyond a reasonable doubt.  without the testimony of the victim, all evidence is either extremely circumstantial or hearsay, which is not admissible in court. DA or perhaps even the PD recognized that there was no way they would have a shot at a conviction without the cooperation of the victim, and decided not to puruse charges.

LSA91

January 29th, 2014 at 12:29 PM ^

I'd add

- 8/8/13 - Washtenaw Watchdogs writes a blog post publicising the 09 Gibbons arrest.

I'm not sure if it's material, but I think it might have spurred the OSCR process, and I'm curious what the athletic staff did after this story started spreading around the net..

Section 1

January 29th, 2014 at 1:34 PM ^

Who initiated the belated OSCR investigation of Gibbons?

As I understand the rules, it need not be the alleged vicitm.

Just imagine, if some politically-motivated third party initiated this investigation, more than three years after the fact.

I want to know everything about how this was conducted.  Who was the complainant?  Who were the witnesses?  What was the evidence?  What were the procedural rules?  Was there a prosecuting attorney/agent?  Who was it?  Did Gibbons have counsel?  If so, what was he allowed to do and/or say?  Was there a written decision?  Was there a finding of fact(s)?  Is there an appellate process?  Is there an appeal pending?

Section 1

January 29th, 2014 at 12:34 PM ^

...on the whole issue of the Department of Education Civil Rights Dvision's new policy as of 2011.

That's the big story here, since none of us are likely to resolve what happened in the Gibbons case.

The long term question is going to be how are accused persons going to be treated under the new rules?  Is there going to be a kind of feminist Star Chamber on campuses across the country?  Is the Obama Administration using Title IX to actively assert federal standards that diminish due process rights?

 

Section 1

January 29th, 2014 at 12:46 PM ^

... in the Board thread on the Gibbons expulsion.  The April, 2011 Russlyn Ali "Dear Colleague" letter, etc.

Time for the MGoBoard to man up when the going gets tough on political things.  The big issue in this entire case is why the fuck this matter was reopened three years later.  The real, true answer might just be, "politics."

stephenrjking

January 29th, 2014 at 12:57 PM ^

Dude, Section 1, you are being such an idiot about this. You are a discredit to rational, normal, non-flame-throwing people who hold positions similar to yours. I disagree with a lot of people on this board about a lot of issues (my signature would suggest at least one pretty significant issue) but it is possible to have strong beliefs and still have a rational discussion.

What you are peddling is just baseless conspiracy-ism.  What's hilarious about this is that the person that would be most likely to be responsible for this in your "conspiracy" scenario is the Washtenaw Watchdog guy, with whom I believe you share some political views and whose tone and demeanor you closely resemble.

 

Section 1

January 29th, 2014 at 1:10 PM ^

He has referred to Gibbons as a "rapist."  What I said about that is that I hoped that Smith would get sued for libel, for that offense.

I'm not exactly sure what strong positions on my part you find so offensive.  And about what I might be "irrational."  Today, I am asking some very serious questions related to the procedural issues in the much-belated and mystery-shrouded disciplinary proceeding re: Brendan Gibbons.