Takeaways from the WTKA morning show (Gibbons)
1) We still don't know if Gibbons is guilty. With the lower standard of proof, it has not been determined he is guilty beyond a reasonable doubt - just more likely than not.
2) It's quite possible, even probable, that Hoke simply believed Gibbons wasn't guilty.
3) The investigation that just occured was likely the first conducted by the University.
4) The current policy requires incidents be reviewed even without a complaint by the victim. This wasn't the case under the old policy and may explain why there was such a delay.
5) It's still unclear what the differences were between the interim policy in 2011 and the current policy that took effect in 2013. Some differences may have existed that explain why the investigation and finding wasn't rendered until the current policy took effect.
6) A cover up to delay an investigation or any findings until now would have gone beyond the football program and athletic department, and would have included other functional areas of the university - highly unlikely.
January 29th, 2014 at 7:39 PM ^
Basically what I expected. MGoBlog is nothing if not thorough.
January 29th, 2014 at 7:50 PM ^
We know that Gibbons was guilty of misconduct. The competent tribunal so ruled based on the standards the university has in place, and the requisite review authority confirmed the ruling.
We likely will never know if he was guilty of sexual assault. It isn't even clear to me that the principals in the case know that.
January 29th, 2014 at 8:15 PM ^
He says they had sex, she insists she said no (over and over again in the report). I think she knows.
January 29th, 2014 at 8:23 PM ^
best estimates of false rape accusations are between 2-10%, this is kind of a false equivalency.
Since this is an online forum and not a court-of-law, I'm assuming she's not lying.
EDIT: to extend further, many people in this country use the same incorrect application of "innocent until proven guilty" as they do with freedom of speech--they think it is applied to every single case of everything ever.
Do I think a person accused of rape should be thrown in jail if evidence shows they likely did it? Only if the evidence shows it without reasonable doubt.
Do I think a person accused of rape should be subject to loss of societal privileges or subjected to moral scrutiny on online boards if the evidence shows they likely did it? Yeah, seems fair to me, especially when considering how difficult it is to garner convictions in rape cases.
January 29th, 2014 at 8:27 PM ^
Between innocent and guilty. Is someone found not guilty of rape based on refusal to prosecute/lack of cooperation totally without fault? Absolutely not. At best, it's clear that, like Jameis Winston, Gibbons doesn't have a clear understanding of what consent is. Anyone giving him credit for avoiding prosecution is giving him more than the benefit of the doubt.
January 29th, 2014 at 8:38 PM ^
when people go so overboard in trying to be objective while they personally judge these situations.
So many comments are some variation of: "let's be clear, there is a victim here, but that victim is either the alleged rape victim or the falsely accused Gibbons."
Yet nobody follows that up with the acknowledgment that, on average, there's only a 10% odds of one of those things being true.
And it's even more disturbing that this line of thinking affects the police officers who are supposed to investigate rape cases. http://www.oaesv.org/wp-content/uploads/2013/02/Police-Interviews-of-Sexual-Assault-Reports-Do-Attitudes-Matter.pdf
January 29th, 2014 at 9:06 PM ^
on the accused because they could very well be innocent. Remember Brian Banks? He was accused of rape and was put into prison, but evidence emerged later on that he was in fact innocent.
I'm not saying Gibbons isn't guilty, but with the rape situation, it's best to handle this carefully and throughly. Reputations will be ruined even if found innocent because you will be registered as sex offender even though you are never guilty which is the US law.
January 29th, 2014 at 9:19 PM ^
is that, objectively, there is a waaaaayyyyyy higher probability that she is not lying than that she is lying. And people don't want to admit that. I'm just bringing it up.
http://theenlivenproject.com/wp-content/uploads/2012/11/rapist_visualiz…
January 30th, 2014 at 6:34 AM ^
I admit it for sure; however, you do not, should not, and cannot convict people of criminal conduct in the United States because the complaining witness is "probably telling the truth".
January 29th, 2014 at 8:28 PM ^
... and articulated them so much better than I could have. Thank you.
January 29th, 2014 at 8:32 PM ^
January 29th, 2014 at 8:37 PM ^
singular anectodes with many confounding variables in making all of your judgments in life.
January 29th, 2014 at 8:32 PM ^
and said after a few minutes of intercourse she willingly turned around to give him oral sex. He says she sounded remorseful about having had sex after just breaking up with her boyfriend. They both said there was some discussion about future infidelity. She said she didn't remember on numerous occasions and was vague on the details. He says his recollection is clear and was specific on the details.
January 29th, 2014 at 8:47 PM ^
She stated she performed oral sex in the police report.
January 29th, 2014 at 8:56 PM ^
However, this is one of those time she had troubling remembering and was vague on the details. Even when prompted by the interviewer she had trouble explaining how it came to pass that she was fellating him.
January 29th, 2014 at 11:16 PM ^
That is a bit weird. Unless he was FORCING her to go down on him (which is possible) that doesn't sound very much like rape. I don't think people being raped generally decide to give a guy a blow job mid-rape. Sounds like she was drunk as hell. Now, if he drugged her, then he's obviously guilty of something. But if she was just drunk and did things she's ashamed of, well, that is a bit of a different story. I'd be careful at rushing to any judgment in any direction on this one.
January 30th, 2014 at 12:53 AM ^
January 30th, 2014 at 3:54 PM ^
If she was drunk and Gibbons knew it (and was sufficiently in control of his faculties) - it's rape.
Even if she said yes repeatedly.
People who are declared legally incompetent or who are physically or mentally incapable of providing informed consent - can't provide consent no matter what it is they say.
January 29th, 2014 at 9:07 PM ^
January 29th, 2014 at 9:22 PM ^
If the alleged victim wasn't co-operating, I can't imagine what they had beyond the police report.
January 29th, 2014 at 9:24 PM ^
aren't you well aware that the court of public opinion in this country is not subjected to the rules of the court of law?
And, as a lawyer, aren't you well aware that false accusations of rape are the vast minority?
Although, perhaps, as a lawyer, you see a skewed poplulation pool. But even still, an oncologist who finds that 50% of referred patients have cancer knows that 50% of the population as a whole does not have cancer. So I'd assume a lawyer has that basic insight as well.
January 29th, 2014 at 9:51 PM ^
January 29th, 2014 at 9:57 PM ^
that non-legal actions against accused people such as removal from the team, removal from school, my personal judgment of people, etc. etc. are not subject to innocent until proven guilty. They're subject to whatever the people in charge of those actions deem appropriate.
January 29th, 2014 at 10:21 PM ^
January 29th, 2014 at 10:30 PM ^
How is getting expelled from school remotely all that matters if there is a separate system, the fucking court of law, that has the potential to rule him guilty and throw his ass in jail for years and years???
January 30th, 2014 at 3:56 PM ^
In the matter of public opinion, the court of public opinion is all that matters.
January 30th, 2014 at 6:28 AM ^
I have not read the report but would, but would be interested in doing so. Do you have link(s) convenient for you to cite to get access?
I am a little bit late to this party, but i used to blog on criminal justice issus, and am considering making this case a focus for a while if I do. One reason---I moved to Phoenix close to where Lewan went to high school, and his presence/actions in ths case are terribly disconcerting IIRC.
If your succinct summary is correct, that is a difficult rape case to make if you are a prosecutor, but i want to keep an open mind until i review things. I will say a lot of things in this matter do not pass the smell test from the viewpoint of investigators of wrongdoing.
January 29th, 2014 at 8:20 PM ^
January 29th, 2014 at 8:44 PM ^
I am not sure what your objection is, here. Clearly, you are not referring to the Gibbons case when you say that "one person issued an opinion," nor can you plausibly aregue that you know that none of the people invol;ved in the process weighed any evidence.
The "competent tribunal" is the Student Resolution Panel (unless Gibbons chose to have a single resolutions officer) described here: http://oscr.umich.edu/statement#stage3 An additional competent tribunal would be the Appeals Board, described in the same document.
You seem to be claiming that the school doesn't follow its own policies, and that this case was decided by one person who didn't even weigh the evidence. That's an extraordinary claim, and so requires extraordinary proof. I await your presentation of such proof with anticipation; it should be a doozy.
January 29th, 2014 at 7:50 PM ^
January 29th, 2014 at 8:13 PM ^
January 29th, 2014 at 8:56 PM ^
January 29th, 2014 at 8:39 PM ^
She said, "Rape", he is guilty, let's have a fair finding of guilt.
January 29th, 2014 at 9:05 PM ^
I'm surprised you were privy to the hearings at Xavier--I wouldn't have expected that level of expertise on the case here.
My point, which I thought was pretty obvious but apparently I have to actually say it, is that for legal reasons the University will say absolutely nothing further. There will be no comments on the proceeding itself, there will never be any statement making it clear precisely what Gibbons's violation of the code of conduct consisted of. University counsel will not permit it. This is how it has been handled elsewhere; this is how it will be handled at Michigan. If you want to draw conclusions from their silence, feel free, but it means nothing because the silence is inevitable.
January 29th, 2014 at 9:23 PM ^
Yes, there will be silence -- about the university's disciplinary process. Hoke and Brandon are required to be silent about that and they will be silent about that.
There is, however, no such requirement about *their* process, the process by which they decided Gibbons and Lewan could stay on the team in the wake of all the things that were publicly disclosed last August (and likely known to them before last August). Just as they could comment if they kicked a guy off the team, or suspended him, for lipping off in practice.
There are really three authorities and jurisdictions here -- the school's disciplinary process, the criminal justice authorities, and the management of the football team. Nothing binds Hoke and Brandon to silence regarding their process, or the interaction of their process and the criminal justice system. They would be perfectly entitled to say, for example, "Player X was arrested for DWI last night and as a result, he's been suspended for three games." SIlence here is in their self-interest, of course, which is why the privacy meme is being invoked.
Their process is where the failure of Hoke and Brandon lies. It looks like their "process" was simply deferring to the other two authorities and doing nothing unless and until those other authorities took action. That isn't the right answer; in fact, it's the completely wrong answer.
January 29th, 2014 at 10:13 PM ^
an advocate of having fair trials after the hanging.
January 29th, 2014 at 8:14 PM ^
I've read the police report. Seems bad. Gibbons comes off as an asshole at best.
January 29th, 2014 at 8:29 PM ^
Disagree. The alleged victim admits she had a lot to drink and sounds borderline incoherent to me.
January 29th, 2014 at 8:37 PM ^
January 29th, 2014 at 8:39 PM ^
"There is no excuse for what Gibbons did or did not do."
Huh?
January 29th, 2014 at 8:54 PM ^
January 29th, 2014 at 8:58 PM ^
Based on the police report there is zero chance they would get a conviction.
January 29th, 2014 at 9:23 PM ^
She's drunk, she deserved to get raped. Yikes... people.
January 29th, 2014 at 10:33 PM ^
Thanks Jezebel.
In the real world, what he said was, if she blacked out due to an excess of alcohol, she might not remember what happened.
January 29th, 2014 at 11:30 PM ^
And in the real world, drunk people can't consent. End of story.
January 30th, 2014 at 12:00 AM ^
In this context it's maybe worth pointing out an important difference between Michigan law and University policy: Michigan law requires coercion or force as an element of criminal sexual assault, but the University's definition of sexual misconduct merely requires lack of consent.
January 30th, 2014 at 4:04 PM ^
That appears to not always be true -
750.520d Criminal sexual conduct in the third degree; felony.
Sec. 520d.
(1) A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exist:
...
(c) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
...and
750.520e Criminal sexual conduct in the fourth degree; misdemeanor.
Sec. 520e.
(1) A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if any of the following circumstances exist:
....
(c) The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated, or physically helpless.
http://www.legislature.mi.gov/%28S%280wxlh3autvtiuo45vzjggw45%29%29/mil…
January 30th, 2014 at 6:12 PM ^
(i) "Mentally incapable" means that a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct.
(j) "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his or her conduct due to the influence of a narcotic, anesthetic, or other substance administered to that person without his or her consent, or due to any other act committed upon that person without his or her consent.
(m) "Physically helpless" means that a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act.
http://www.legislature.mi.gov/%28S%280wxlh3autvtiuo45vzjggw45%29%29/mil…
They've carefully carved out the situation where a person is mentally incapacitated due to the influence of a substance they've intentionally consumed unless the person is "unconscious, asleep or physically unable to communicate unwillingness to an act."
There may be some case law that impacts this. Maybe somebody's been able to get a broad interpretation of "physically unable to communicate unwillingness." But as it stands it doesn't seem that intoxication necessarily implies rape.
January 29th, 2014 at 11:32 PM ^
Which implies that its okay to have sex with them?