Takeaways from the WTKA morning show (Gibbons)

Submitted by Cold War on January 29th, 2014 at 7:32 PM

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 7:50 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 8:23 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 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 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 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.



James Burrill Angell

January 29th, 2014 at 9:07 PM ^

Hold up a minute......two word reminder for you.....Brian Banks.

Look I have a daughter so I'm naturally very bothered by this but I'm also a lawyer and the concept of innocent until proven guilty is very meaningful to me. It's hard to not stand in judgment but only two people know what happened and for whatever reason the aggrieved one chose to not pursue this, he never had his day in a real court and none of us get to know what the University investigation found that made them believe that this was more likely than not true.

This is a shit sandwich but sitting around smelling it isn't going to make it taste better.


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.

Year of Revenge II

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 ^

How do we know Gibbons is guilty? Was guilt adjudicated? No, it wasn't. And "competent tribunal"? What? One person issued an opinion based on whether he believed the complainant or the respondent. Not a preponderance of evidence, as others have claimed here, for that would imply that evidence was weighed somehow, which is not what happened. This was the result of arbitration, which is inappropriate to the determination of guilt, but is the way these cases are handled.


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 ^

There still seem to be so many questions...but is there a chance we never find out anything more on this? Everything seems to be under privacy laws that I cant imagine the university or Hoke/Brandon being able to address anything related to this in the press.


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.

Ed Shuttlesworth

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 8:37 PM ^

Then you walk away from a bad situation. Common sense says to not put yourself in that position as a man. There is no excuse for what gibbons did or did not do. He harassed her in the least. You don't treat woman like that. And if Taylor Lewan threatened to rape her if she comes forward doesn't help gibbons, and he should have been booted off the team.


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.




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.





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.



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.