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

Njia

January 29th, 2014 at 5:00 PM ^

I would like to give credit where it is due. Since this whole story hit the fan yesterday, you have been one of the most level-headed posters on this site. For many others, the rivalry alone might have given them the impression that they had a license to declare an open season on the university and everything it stands for. You've avoided that and I am grateful. I'll bet you're one hell of a good lawyer.

larisimilitude

January 29th, 2014 at 1:16 PM ^

Fair questions.

I would point out, first, that a "preponderance of the evidence" standard doesn't interfere with a presumption of innocence. (I don't know whether the M investigative process grants the accused that particular presumption or not, but the standard of proof doesn't necessarily preclude it.)

Second, we have different standards of proof even within the judicial system. I think the university has the right to determine, that a lower-but-still-rigorous standard of proof is adequate under the circumstances. It's hard to analyze this particular situation given the lack of detail, but I would imagine that "more likely than not" has to mean more than just a he said-she said conflict. She said plus?

Obviously, whether you agree with that assessment depends on your feelings about the fairness and adequacy of university adjudication systems. I tend to think that a large, sophisticated, and lawsuit-averse institution wouldn't expel a student - especially in a situation where publicity is virtually guaranteed - without having conducted a thorough investigation and meaningful adjudication.

joeyb

January 29th, 2014 at 12:52 PM ^

With these facts, and these facts alone, the only thing that I'm not comfortable with how the situation was handled was Gibbons playing against Iowa. However, the fact that he did not play against OSU suggests that there was a change in status at some point between those two games. If that's not the case, then there needs to be an explanation for why his punishment was delayed.

Go Blue in MN

January 29th, 2014 at 3:52 PM ^

if he hadn't been hurt.  Several people have stated that they saw Gibbons on crutches during that game.  The university had not decided what action to take until December, and maybe Gibbons had a chance to contest the findings in the four weeks inbetween the two letters. 

leftrare

January 29th, 2014 at 12:53 PM ^

I would really like the U to come out with an official statement to shed light on this.  However, they will undoubtedly and I suppose even justifiably use FERPA as a shield and say they can't comment.  The whole thing will end up fuzzy and ultimately forgotten by almost everybody.  Which is to say, the U of M and its AD will have this bad mark on their reputation forever, and will be powerless to erase it.

Oh, and somewhere out there is a woman with an tragic injury to her psyche. 

 

mackbru

January 29th, 2014 at 12:59 PM ^

Hoke could and should have said something like "Brendan Gibbons is no longer enrolled at this university." This would have said a lot without saying anything "illegal." It would have suggested the program takes this seriously, but that Hoke was unable to elaborate. Saying it was a "family matter" trivialized the issue and actually elicited sympathy for Gibbons; it was deceiving and manipulative, and therefore wrong.

cbs650

January 29th, 2014 at 2:06 PM ^

how did Hoke concoct a story that was a flat out lie? look at this way: you have a job and have to miss time because a child of yours gets into some serious legal trouble. it's acceptable to say to your boss that you need time off for a "family matter". just because you don't like the situation doesn't mean he lied or gave false info. Gibbons was dealing with a family matter. He could have been fighting his expulsion.

btrau

January 29th, 2014 at 1:06 PM ^

Why was the coach or AD not allowed to disclose that Gibbons was no longer a student @ Michigan? I read that Gibbons was encouraged to disclose his dismissal on future job interviews. So why can't the coach say he's no longer a student without getting into details?

mackbru

January 29th, 2014 at 2:32 PM ^

Schools commonly tell reporters whether a student is enrolled, when they graduated, etc. That's not privileged information. Try it for yourself. Call the school. Ask when a friend of yours enrolled and graduated. They'll tell you.

Remember the Manti T'eo case? Stanford openly told reporters that the "girlfriend" was not enrolled. 

Blue Mike

January 29th, 2014 at 1:43 PM ^

Think of it like a medical issue:  If you have HIV, the doctor will strongly encourage you to tell past and future partners, but they can't come out and announce it, right?  

Gibbon's expulsion is still his information to control, not the school's or the AD's.  Gibbons doesn't have to share it with anyone if he doesn't want to.

rkfischer

January 29th, 2014 at 1:00 PM ^

I appreciate Erik’s organization of the facts as they are now known. It is easy to see how facts and rumors are misunderstood just trying to read the initial reports and the 587 comments on Brian’s post on this issue.

I’m in favor of integrity, at all levels and at the cost of winning football games. I hope we never sink to the level of Alabama, Oklahoma, Ohio, Miami, USC or Florida State in order to win any games. As the father of seven daughters, I’m favor of safety for all students. No one should be assaulted and everyone should be given due process. Shame, fear and anxiety are powerful emotions that often overlooked. They can plague a person for the rest of their lives.

I cannot say I’m proud of the University at this moment but I’m not rushing to judgment until we see or better understand more facts. There is plenty of good things happening at U of M right now (academics, arts and sports wise) but this elongated case has created bad PR. It makes me feel bad. We are all upset by this case and its impact on the community. I’m waiting to see if further clarification if forthcoming. Erik’s factual timeline was very helpful to better understand. Thanks.

Njia

January 29th, 2014 at 3:03 PM ^

And it puts into a clearer light the whole issue of how we perceive the goings on at other schools. Considering how easily we jump to conclusions regarding U-M and nearly everyone associated with it, it's not hard to see how viewing those other teams and schools through the lens of a rivalry suddenly makes them appear worse than they might actually be (Penn State notwithstanding). We know less about those schools and the specific, reported (and rumored) events than we know about this one, but are even quicker to judge.

Like the old prayer begins, "There, but for the grace of God..."

ericcarbs

January 29th, 2014 at 1:00 PM ^

I appreciate this timeline and hope the Hoke critics and people ashamed of Michigan see that the process was very well handled (except maybe the Iowa game).

LSA91

January 29th, 2014 at 1:02 PM ^

Eric, a couple more things.

1) You have a typo in your spelling of Taylor's name.

2) The police report is hard to read with all of the names blacked out, but my reading of it is:

On 12/6/09, the victim told an investigating officer that she had heard from a friend that on 12/3/09, Lewan asked the friend several times if the victim was going to press charges, and that Lewan said "If she does, then I'm going to rape her, because he didn't."  The officer's notes say that he met with Lewan and warned him not to contact the victim, but not whether Lewan admitted to it.  

I've never seen any other sources, but if anyone else has, I'd be curious to look at them.

http://www.washtenawwatchdogs.com/um-police-report.html

It's at least hearsay, because the victim told the officer that her friend heard the threat and told her,* but if true, it's not a casual comment, since Lewan apparently thought that the friend had some influence on whether charges would be pressed.

* Since there aren't names in the report, it's possible that there are more layers of hearsay - e.g., victim heard from A that Lewan made comments to B.

mackbru

January 29th, 2014 at 1:08 PM ^

One thing we can all agree on, I'm guessing, is that the program/school needs to publicly address this matter immediately. Yes, there are certain restrictions re what they can say about a student's record. But they need to offer as much candor and transparency as humanly possible. The longer they stand silent, the worse this will look. 

pearlw

January 29th, 2014 at 1:08 PM ^

Not sure if it was mentioned already but you should include date of Hoke's and Brandon's hirings in the timeline. Even in this thread there were comments from posters under the impression that Hoke was there at time of the initial incident.

might and main

January 29th, 2014 at 1:12 PM ^

And it raises another question for me, as I see it did for others - the issue of why Gibbons played in the Iowa game.  Based on this info, I would say he should not have played.  True, he hadn't been found "guilty" yet, but the Nov. 20 OSCR document stating a preponderance of evidence is a game changer. 

Schmoe

January 29th, 2014 at 1:23 PM ^

Thanks for this!  I would think this is diary material.  I would love to keep referencing this and maybe it could be updated as we find things out. 

I would hope we find SOMEthing out in the timeline what went into dropping charges and why it took so long to expel Gibbons.

But most of all, why did:

  1. Gibbons keep playing football
  2. Hoke make up stuff, which are called lies.

Ed Shuttlesworth

January 29th, 2014 at 1:23 PM ^

Stop already.  It doesn't matter whether Lewan contacted the victim.  The point is that he threatened the victim.  He just happened to do it through a friend, rather than directly.   If he had reason to think the friend would tell the victim, he doesn't need to tell the victim directly to get the threat across. 

Has the police report on this ever been debunked in any way? 

My name ... is Tim

January 29th, 2014 at 1:33 PM ^

I think anyone who is begrudging Hoke's comments to the media needs a bit of a reality check. In an ideal world Hoke is able to tell us the truth and avoid any involvement in this matter, but this is not an ideal world.

While possible he did not hear from his own counsel or the AD's counsel on this matter, I find that difficult to believe. Assuming he did, there is no way - I cannot emphasize this enough - that they advised him to say anything that might implicate Gibbons' disciplinary proceedings or suggest that something larger was at play. No comment or "team rules" is an option I suppose, but one that would only invite further inquiry. If I'm counsel, I'm not risking further inquiry and a potential lawsuit against Hoke for defamation, or the University for violation of FERPA or any other privacy act because Hoke "owes the fans/media honesty." Sure, "no comment" isn't a violation of FERPA or any other regulations, but don't think that a crafty Plaintiff's attorney doesn't file a garbage Complaint capable of avoiding early dismissal based on the suspicion that comment engenders. Is the idea that they would vaguely mention a possible injury - which is probably vaguely true to most players on the team anyway - and allow the entire disciplinary process to resolve itself really that abhorrent?

If Hoke lied to players, parents' players, the University, investigators, etc. in an effort to protect Gibbons' butt, then go ahead and take issue with him. However, I don't see what the great travesty is that Hoke, probably upon the advice of counsel, possibly evaded the issue and fudged a response, claiming a "false" injury, in a media press conference. Football press conferences and "honesty with fans" are never going to take precedence over Hoke's or the University's legal concerns, and frankly, I don't really think they should. Brady Hoke is not your father. You will get over his misdirection - if in fact it is misdirection.

LSA Superstar

January 29th, 2014 at 1:39 PM ^

The change in the standard of proof is likely a red herring in this instance as it pertains to unraveling why Gibbons retained his eligibility for so long and why it's coming out now.  Instead, I think the bigger issue is eligibility requirements of the moving party (that is, the person or entity who initiated the proceedings).  The victim in this case voiced her intent to remain separated from both prosecution and, evidently, from OSCR investigation.  Thus, the University's hands were tied at that point - prior to the revision of the policy, no action could have been taken.  But under the revised policy, the University could institute proceedings and OSCR could investigate and adjudicate.

I think this changes the focus of what questions we should be asking significantly.  Instead, I think, given all we know, the unanswered questions are as follows:

1.) Why, after the "interim" policy was instituted in 2011, was Gibbons not investigated with the University as the movant until 2013?  Was it because the University could not do so (was the standard for movant eligibility changed in the interim document?) or did the University simply decline to do so?

If it could not have done so, this puts conspiracy talk to bed.  If it merely did not do so, questions about why the delay occurred until near the expiration of Gibbons's eligibility should take center stage.

2.) Once the proceedings began, due process required Gibbons to be able to attend, to present evidence, and to cross-examine witnesses.  Did this occur before or after the November document was issued by OSCR telling Gibbons that evidence existed to prove the claim?

If it occurred before and the November document was an official decision, that makes it look really bad that Gibbons played in the Iowa game, because a player had been judged to be more likely than not to have raped somebody played in a winged helmet on a football field.  If, on the other hand, due process rights had not been afforded, I'm less disturbed by the fact that Gibbons played in that game.

3.) All the above being said, at what point did Hoke know that a University investigatory body had determined it was more likely than not Gibbons had raped someone?

If it is before the Iowa game, Hoke deserves censure, possibly up to and including discharge in my own opinion.  If it is before the Ohio State game, Hoke deserves censure as well, but the conduct deserving of censure merely becomes lying about why Gibbons would not play as opposed to playing him despite the investigation.  If it is before the bowl game, I don't think Hoke's behavior is deserving of criticism.  "Family business" is a broad term and he is surely under pressure to not comment on Gibbons's status with the University.  He may not have been candid, but I don't think candor is warranted with respect to the press.

mackbru

January 29th, 2014 at 1:38 PM ^

Perhaps the otherwise excellent timeline should also note that, according to the initial report, two of Lewan's own teammates told police that Lewan had issued threats re the accuser. 

slblue

January 29th, 2014 at 1:39 PM ^

and I offer this thought.  What WE know is actually very little.  As I understand it, Gibbons was found by an internal University investigative body to have violated a University policy.  That policy presumably prohibits both assault and retaliation.  No one seems to be talking about the latter.  Is it possible that there was inconclusive evidence of assault, but sufficient evidence of retaliation?  Retaliatory action would presumably carry just as heavy a potential penalty.  Is it possible that some retaliatory action happened long after the sexual interaction?   Sexual assault is by definition criminal; retaliation is not necessarily criminal but it would most assuredly violate University policies.

I know as much and as little as everyone else.  My questions are speculative - just like the vast majority of comments.  We may never know the facts, the reasons for the delay, the reasons Hoke said what he did because of a variety of confidentiality requirements.  But to brand Gibbons or Hoke as criminal seems to me to be irresponsible.

The same can be said about Hoke's conduct.  We really know next to nothing about what he knew, when, and how.  Branding him as a liar (someone who said something he knew to be untrue at the time he said it) also seems irresponsible given what I understand the facts to be. 

It is clear, however, that there is an epidemic on university campuses of binge drinking and misconduct related to or arising from impairment. That is the larger issue.  How do we protect students when students - male and female - continually make poor choices that change their lives forever?  How do we, or can we, change culture, attitudes, and behaviors in a meaningful way?  

mGrowOld

January 29th, 2014 at 2:01 PM ^

Well if you read the comments in the front page post it apparently begins with Brian telling everyone that it's bad.  According to Pasadenablue people don't necessarily know that certain behavior (like binge drinking, raping, ect) is bad unless Brian tells them so.

slblue

January 29th, 2014 at 3:54 PM ^

My beef with Brian's post has nothing to do with his not saying that rape is reprehensible.  The moral depravity of rape was not his subject.  My beef with the post, or the title, is that untruths abound.  Do we really know that?  Sure, this is a blog, a forum for opinions.  But as the creator of this blog, I think Brian should be particularly circumspect before reaching conclusions about something as significant as being untruthful about a student athelete's status vis-a-vis an internal investigation of violations of the University's sexual misconduct policy.

ifis

January 29th, 2014 at 1:49 PM ^

Ok, I'm really confused about this whole 'cover-up' accusation and the general tenor of those who think the University of Michigan failed to address the problem.  It is such poor reasoning.  The University had a standard that matched the law when Gibbons is alleged to have raped a young woman.  The evidence/circumstances for punishing Gibbons was not met.  Then the standard was changed in order to prevent rape.  Since the changes had possible unsettling implications (innocent people could be accused and expelled), the new policy was cautiously implemented.  Then, once the policy was made official, the university relooked the Gibbons case according to the new standardof 51% confidence and expelled Gibbons.  I should think that those who want more aggressive prosecution of alleged sexual assaults would be happy that the University changed its policy and expelled Gibbons, a member of the football team.  IF there is evidence that the coach or the department covered something up, then that would be serious and heads should roll.  However, we have absolutely zero evidence that that happened. It seems to me like the people crying 'cover-up' are the very people who should be most pleased with the new policy and its implementation. 

As for Hoke 'lying' about Gibbons.  I don't know man.  Maybe we need to implement a policy that has a 51% evidential threshold.  But if we do, it seems like the consequences should be less serious than being found guilty of rape in a court of law.  Maybe a student should be expelled, but perhaps their privacy should be protected to a greater extent so they are not labeled a 'rapist' for the rest of their life based on such a low threshold of evidence.  That seems to be reflected in the policy.  In that case, Hoke should do everything possible to protect Gibbons privacy.  "No comment" might have been a better answer, but I don't see an attempted cover-up in the answer he did give.

Finally, who leaked this?  If my point about Gibbons privacy being protected by law even if he is found guilty is true and if that reflects a moral protection that those expelled under the new policy should be granted, then the principal injustice in U of M's actions are that this was leaked at all (unless it came from Gibbons, which I doubt).  Note, I am not claiming that Gibbons is being treated unjustly, if he did, in fact, rape a young woman.  I am claiming that this evidential threshold is really low and might entail a right to privacy to the expelled in order to limit the harm to innocent people who are expelled (which Gibbons may or may not be). 

So, it might be the case that a whole bunch of people are indignant for the wrong reasons.  U of Michigan might have wronged the expelled student in this case, which is exactly the opposite of wrongfully, conducting a cover-up.

 

 

Blue Mike

January 29th, 2014 at 1:52 PM ^

Does anyone know how OIE would handle letters such as the one Gibbons got on November 20 and December 20?  Would the AD receive a letter at the same time, or is there some delay in receiving that information?  There is a very real and plausible explanation that Hoke and/or Gibbons did not receive the information prior to the Iowa game.  There is also a real plausibility that Gibbons received the expulsion letter at his house in Florida at or around Christmas, and Hoke didn't receive full details until after his press conference.

I'm not saying either is likely, but the fact is that we don't know one way or the other.  There seems to be a lot of condemnation and outrage without knowing anything about these events.

SCarolinaMaize

January 29th, 2014 at 2:11 PM ^

There are a hundred scenarios of how and when who knew what.  When did Gibbons receive the letter, did the university notify the AD the letter was sent, was Gibbons open to Hoke about the letter when it arrived, and on and on.  For all we know, he could have received the letter when he got back from Iowa and told the coach he sprained a muscle to buy himself time to think.  Nobody knows for sure.  It all comes down to timing if Hoke/AD was covering anything up.