MSU legal defense now apparently investigating victims

Submitted by FabFiver5 on February 9th, 2018 at 9:27 AM

WARNING: Freep Link

“I had no choice in now disclosing my own story,” Powell said in an interview with the Free Press this week. “This was my own story. This was not their story to tell.”

Powell's claim that an investigator checked into her background suggests the university is taking steps to construct a defense amid a growing pile of litigation. 


814 East U

February 9th, 2018 at 9:34 AM ^

Most people will not understand but MSU should investigate. This happens in every situation where large sums of money will be paid. It sucks but this is the process.

The Mad Hatter

February 9th, 2018 at 9:35 AM ^

it would be odd if they didn't.  Like professional malpractice odd.

And it's right there in the article.

"Legal experts say, in general, investigating the backgrounds of plaintiffs is common by defense teams in order to uncover anything that could bring the plaintiffs' credibility into question."


February 9th, 2018 at 9:49 AM ^

Agreed. having said that, good luck poking holes in 120 women's independent cases. maybe they can hope for a 10% reduction to minimize payouts.

personally, I want to see Klages in jail more than any financial penalty to msu.


February 9th, 2018 at 10:23 AM ^

is precisely the reason. They cannot simply pay everybody who claims abuse. I’m not discounting any alleged victim’s claim, but MSU has to determine which claims are credible and verifiable. They can’t simply be a bank, for settlement reasons they need to do this.

MI Expat NY

February 9th, 2018 at 10:23 AM ^

This is the key point, it is quite possible that a false claimant comes out just looking for a buck.  Even if MSU's lawyers privately acknowledge there will be heavy payouts to the vast majority of claimants, not investigating to make sure that there aren't any false claimants in there would be malpractice.  Certainly a bad optic for MSU, but not entirely avoidable, either.  

All that goes out the window if they are being particularly aggressive in their investigations, and bordering on intimidation.  


February 9th, 2018 at 11:13 AM ^

and then trying to get their insurance company to pay.  The insurance company obviously had some issues with that.  PSU and their insurance company were hung up in court over that for several years.

PSU (for the most part) lost the lawsuit - something that MSU folk have likely noticed in devising their own strategy.

It's a little bit of a "damned whatever you do" type of situation.  (1) Investigate every claim: you smoke out any liars are but you're prolonging the pain of the true victims  (2) Pay everybody who says they were a victim: there's possibly a few folk who are making some undeserved $, but it's much less pain for everyone else.

From a moral POV, I'd argue (2) is probably better.  Hope that karma catches up with any liars making undeserved $.


February 9th, 2018 at 2:45 PM ^

Exactly. How idiotic would it be to just starting handing out cash to anyone with even a tangential relationship to Nasser who claims he abused them? Do you have any idea how many money-grabbing, unethical people are out there? I cannot imagine the percentage of scumbags is LOWER among parents who think it's a good idea for their child to practice gymnastics 12 hours a day for 10 years on the .0000000001% chance she makes the olympics. But we're supposed to say MSU should be nice and go full Lloyd Christmas???


February 9th, 2018 at 9:46 AM ^

Yeah.  It sucks for the survivors, but if I'm MSU's attorneys my job is to zealously defend my client, even if that means trying to find holes in the stories of rape victims.

Now, if they start throwing out accusations and painting the women in the media poorly for no verifiable reason, then screw them.

Mike Damone

February 9th, 2018 at 10:09 AM ^

nailed it. The defense attorneys have an obligation to put up the best defense they can, and that is going to involve investigating all of the plaintiffs. The problem is that the number of victims is so overwhelming, even if a few of the victims have bent the truth, or have some other issues that may negatively impact how a jury may view their character - does it matter in the big picture? There are too many of these victims that are telling the truth.

They should be VERY careful about how to use info about the victims. They will get absolutely hammered by the press if it looks like they are attacking their stories or character...

M Ascending

February 9th, 2018 at 10:44 AM ^

The most typical and often abused defense tactic in rape cases is to attack the victim's character and credibility by bringing in suggestions of sexual promiscuity, to bolster the argument that the sexual encounter in question was consensual.  (Rules of evidence designed to protect against this are not always effective.) 

In this case, however, involving teenage victims (and younger) lying on a table in a doctor's office, it seems incomprehensible that this tactic would work.  The only thing I can see as an effective investigation tool is to determine whether each of the alleged victims was actually a patient of Nassar during the time period when the assaults occurred.  Beyond that, it's going to be hard to challenge claims of his actual patients that they were assaulted.  It would be Nassar's word against theirs, and who is the jury going to believe?



February 9th, 2018 at 11:28 AM ^

Yep, especially when Nassar has already been found guilty.  All MSU should do is verify the claimants were patients of Nassar acting on behalf of MSU.  Anything beyond that is contemptible behavior.  One strategy they may very well employ is trying to avoid paying non-MSU student victims by claiming he was acting on behalf of another institution.  Doubtful that will work but they may try.


February 9th, 2018 at 12:56 PM ^

To briefly add to that, Statutory Rape is what's called a strict liability crime - all you need to prove is it happened, and intent and everything else don't matter.  So even if they get evidence that one of the victims was crazy promiscuous, or hell even if they get evidence to prove that they consented to what Nassar did, it wouldn't make a difference in the event they were under 18 (which, if memory serves, basically all of them are).  I think they're mainly looking in to verify that they were patients and that they were in Nassar's office the day(s) they say they were.  As a lawyer, it's an ugly but necessary part of the business.


February 9th, 2018 at 1:17 PM ^

there is such a thing as the 'rape shield statute' which prevents much of the victim-shaming mentioned above.  relevant part copied here:

1.) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:

(a) Evidence of the victim's past sexual conduct with the actor.

(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.

i haven't researched if that would preclude mention in a civil case (this is a criminal statute), but i tend to think it would. 



February 9th, 2018 at 2:39 PM ^

Ahem.  Following is the least severe for sexual contact with a person between the ages of 13 and 16.  The degree of the crime can be elevated based on other facts.

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:

(a) That other person is at least 13 years of age but less than 16 years of age, and the actor is 5 or more years older than that other person.



February 9th, 2018 at 2:44 PM ^

And when the victim is younger than age 13:

750.520c Criminal sexual conduct in the second degree; felony.

Sec. 520c.

(1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exists:

(a) That other person is under 13 years of age.



February 10th, 2018 at 11:28 AM ^

there are states, for instance california, that actually have a stat rape section (or they did, haven't checked in decades).  michigan doesn't.   we certainly do prohibit sexual intercourse with minors, but that's not called 'statutory rape'.  further, the sections you cite do require a sexual intent.  for instance think of the jostling that goes on in a girls basketball game that can include touching of the chest - but not for sexual purposes and thus no crime.   

also, the sections you cited don't cover what you think is 'stat rape'.  the closest we get is 520b, and that only talks about 'penetration' and that doesn't require what we typically think of as intercourse, only any form of penetration.  

please share your criminal law background, i am genuinely curious.




February 10th, 2018 at 12:01 PM ^

My involvement with criminal law was in prehearing at the Michigan Court of Appeals, where for the first few months I worked primarily on CSC cases with child victims.

If fou're saying "rape" doesn't happen unless there's penile pentration, that's . . . rather odd.

Please share your background.  I'm concerned that people who don't know better will be misled by your pronouncements about the law.


February 10th, 2018 at 10:51 PM ^

practioner.  sounds like an interesting summer intern job at the COA,.  i have never heard of a COA assignment specifically dealing with CSC cases,  i would enjoy hearing the details.  i wonder if you had anything to do with a CSC case of mine around that time, p v. holtzman, with saad, hood and griffin, IIRC.  might've been after your gig at the COA.

as to my criminal background it would be 30 years of prosecution and defense, having handled thousands of cases, and tried hundreds - from about every kind of murder you can think of to terrorism, dope, DV, you name it.  also 9 years on the board of directors for michigan's largest crim defense organization.  i would add that i'm also on 2 crim defense listserves probably having ~ 1,000 total members and i'd guess its at least 50 emails a day.  not once, never, has anyone in my michigan practice used the term 'statutory rape'. not other defense attorneys, not cops, not MDOC, not prosecutors, nobody.  so you may think it's odd, but it might be because its not a world you're in and criminal law has its own language, unfamiliar to people like you.

but have no worries.  i'm sure you are the only person that will read this and i won't tell anyone that you stepped on yourself.  i'll also skip your insult about 'goofy', and chalk it up to your insecurity.  you should get out more, try some cases to juries, connect a little.  we all could use some humility, maybe you too?


February 10th, 2018 at 11:19 AM ^

Here's the relevant part of Michigan's first-degree CSC statute:

750.520b Criminal sexual conduct in the first degree; circumstances; felony; consecutive terms.

Sec. 520b.

(1) A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists:

(a) That other person is under 13 years of age.

(b) That other person is at least 13 but less than 16 years of age and any of the following: [. . . .]


February 10th, 2018 at 11:22 AM ^

So what makes you think that Michigan doesn't have a statute that establishes statutory rape?  Your interpretation of that is as odd as your confusion between res judicata (claim preclusion) and collateral estoppel (issue preclusion).


February 10th, 2018 at 11:39 AM ^

where i said 'technically' there might not be many or any who would fall under res judicata issues, but the practical, real-world effect is the same.  

please share you law experience.  i assume student/new lawyer/non-trial attorney but maybe i am wrong and i am always interested to hear about other mgobloggers. 

on the road starting now, but will try to get back to you later if you respond.  regardless, have a great day. 


February 9th, 2018 at 10:06 AM ^

MSU is a public school with a long-term image to think about. And the survivors are their own athletes. I have to think they aren’t dumb enough to take a scorched earth approach here, but they’ve been pretty dumb so far.

To put it another way, even ten million dollars isn’t worth being seen as a school that lets its athletes be sexually assaulted and then attacks them when they come forward.


February 9th, 2018 at 9:46 AM ^

To mount whatever defense they plan to mount, they are doing exactly what any entity - person, institution, corporation, etc. - would, so this in itself isn't really a big deal. What I am far more interested in is the nature of their defense. Those arguments, whenever they make it into a formal court setting, will be interesting to hear indeed. 

Arb lover

February 9th, 2018 at 10:51 AM ^

The bright line test is whether they simply investigate and quietly argue for mitigation/credibility issues, or whether they attack these women/leak statements.

"Claimant x was never seen by nassar or was only seen once, with four people in the room, contrary to her testimony", would work if verified. "Claimant y invited the behavior by her own testimony", or "claimants recent history of emotional and behavioral issues including her admitted preference for one night stands with older men suggests that she is not credible" does not work.