Investigational Equity: Student challenges University sexual assault policies

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Tuesday, April 7, 2015 - 1:46pm

This article was republished for technical reasons. The original publication can be viewed here.

Editor’s note: Emily Campbell, one of the subjects of this piece, is a copy editor at The Michigan Daily. Campbell was not involved in the editing process of this story.

Documents reviewed by The Michigan Daily, detailing a 2013 sexual assault complaint filed by a University student, raise questions about the University’s process for investigating allegations of sexual misconduct.

In February 2014, the U.S. Department of Education launched a formal investigation into the University’s handling of sexual misconduct cases. In the months since federal officials commenced their investigation, the University was subject to another Title IX complaint. Title IX is a component of federal education law that prevents discrimination based on gender in any education programs that receive federal funding.

In December 2013, then-LSA-freshman Emily Campbell reported to the University that she had been sexually assaulted on campus by Jonathan Barnet and Aaron Reuben, who were LSA freshmen at the time.

The University’s judicial process determined the two were not responsible for sexual misconduct — a decision Campbell unsuccessfully appealed — but were sanctioned for disseminating photos of the incident without Campbell’s knowledge or consent. Barnet and Reuben were ultimately suspended, effective in January 2015, on that charge — a decision they unsuccessfully appealed. They will remain suspended until January 2016.

Campbell’s mother, Maria Mortellaro, filed a Title IX complaint with the U.S. Department of Education on Campbell’s behalf. The complaint argues the University mishandled her daughter’s sexual misconduct case. The Department of Education has taken on the complaint and added it to its ongoing investigation of the University.

This complaint details several steps of the University’s process that Mortellaro says were handled unfairly and alleges the University failed to provide a prompt and equitable response to Campbell’s report.

The complaint centers around Campbell and Mortellaro’s view that a discrepancy persists between the standards of consent taught by the University’s Sexual Assault Prevention and Awareness Center and those used during the University’s judicial process. The complaint also alleges that the University does not employ adequate protocols for determining what types of evidence and witnesses are permitted in proceedings.

Another key part of the complaint is Campbell’s claim that the University advised her that hiring a lawyer was unnecessary. However, without a lawyer advising her throughout the University’s appeals process, Campbell said attorneys for the respondents blocked several documents from being considered in the appeals deliberations. These documents included a letter from the University Police detective who investigated her case, in which he called the panel’s decision to find the respondents not responsible for sexual assault “unfathomable.”

The Daily reviewed the documents pertaining to the University’s investigation, including the Office of Institutional Equity’s investigation report, appeals documents filed by both Campbell and the students who she alleges assaulted her — referred to as “respondents” in the University’s documents — and the final findings of an appeals board.

Attorneys for the respondents chose to speak on behalf of their clients and did not comply with the Daily’s requests to interview the respondents directly on Tuesday.

The Daily filed a Freedom of Information Act request in January 2015 regarding documents considered in the U.S. Department of Education’s March 2014 investigation of the University. The Daily has not received these requested documents.

University spokesman Rick Fitzgerald could not provide more information regarding any questions raised by the documents related to this case and declined to comment regarding the University’s general processes at large. It could not be confirmed whether the documents reviewed by the Daily for this case encompassed all of those generated by the investigation and judicial proceedings.

The incident occurred after Campbell, according to OIE investigation documents, attended a date party as a Kappa Kappa Gamma sorority pledge. Both Reuben and Barnet attended the same party. Campbell alleges she was coerced into participating in unwanted sexual acts with both Reuben, a Pi Kappa Alpha fraternity pledge, and his roommate Barnet, a Sigma Alpha Epsilon fraternity pledge, at approximately 2 a.m. on Dec. 6, 2013 in their Mary Markley Residence Hall dorm room.

Campbell reported the alleged assault to SAPAC later in the day on Dec. 6, where she was advised to go the University Hospital. At the hospital, a sexual assault nurse examiner, also known as a SANE, administered a rape kit.

At the hospital, University Police Detective Ryan Cavanaugh was the first to ask her questions about the previous night’s events — the initial step in a yearlong series of hearings, interviews and discussions regarding the incident.

After Cavanaugh’s interview with Campbell, the Office of Student Conflict Resolution and Anthony Walesby, the University’s Title IX coordinator, reviewed the case and transferred it to the Office of Institutional Equity, which launched a formal internal University investigation in accordance with the University’s publicly available process for handling reported sexual assaults.

The University’s Office of Public Affairs offered to schedule an interview with Walesby on Tuesday, which they did, but it was ultimately canceled by Fitzgerald.

“Upon further consideration and hearing your several follow-up questions, I am afraid we will not be able to come to the Daily this afternoon to respond to your questions,” he wrote in an e-mail.

Campbell said she reported the incident to a confidential employee at SAPAC and also chose to have a rape kit administered at the University Hospital. Whereas confidential employees — such as SAPAC volunteers — are permitted to keep their conversations private if requested by the alleged victim, University employees are required to report any incidents of sexual assault when they become aware of them. As a result, hospital employees are mandated to report incidents of sexual assault to the University, as they did in Campbell’s case. The University was then obligated to pursue the issue and decide whether the case would be investigated.

The University’s Student Sexual Misconduct Policy was last updated August 19, 2013, four months before Campbell’s alleged assault took place. The process for Campbell’s case followed this updated policy.

Four criteria must be met for a respondent to be found responsible for some form of sexual misconduct through the Student Sexual Misconduct Policy, according to the final and appeals process reviewed by the Daily. First, the investigation must establish that sexual contact did occur. Second, the encounter must violate the University’s Statement of Student Rights and Responsibilities. Third, the encounter must have been unwanted by someone involved. Lastly, the party responsible for the unwanted sexual acts must have been aware that those actions were unwanted — requiring a verbal dissent expressed by one of those involved.

According to the documents reviewed by the Daily, the first three criteria were met in Campbell’s case but not the fourth. During the investigation, neither Campbell nor the respondents testify that she said “no” or asked the respondents to stop at any time during the alleged assault.

However, Campbell maintains that the contact was not consensual.

There are four different avenues through which Campbell’s case has been investigated: the University’s OIE-conducted investigation, which included a review by an appeals board after the initial decision was made to find the respondents not responsible for the alleged assault; a criminal case filed in the 14A District Court; an ongoing civil case filed in the Washtenaw County Circuit Court; and an investigation by the U.S. Department of Education.

The University found Barnet and Reuben responsible for taking and disseminating compromising photographs on the night of the alleged assault without Campbell’s consent. The University did not find them responsible for sexual assault.

During the preliminary examination of the criminal case, in which Barnet and Reuben were charged with first-degree criminal sexual conduct, District Court Judge Richard Conlin determined there was not enough evidence to go forward with a trial.

Campbell’s civil lawsuit against Barnet and Reuben alleges eight different counts, including assault and battery, criminal sexual contact and intentional infliction of emotional distress.

On April 1, the attorneys for both Barnet and Reuben filed motions for dismissal of the civil case. David Nacht, an attorney representing Barnet, argued in his brief: “The simple truth is that no matter how many times Ms. Campbell brings the same claims, Defendants cannot be responsible for sexual assault where her actions did not manifest any lack of consent.”

Judge Timothy Connors has not ruled on their motion.

Campbell’s case raises a central question: What is consent? Is a verbal dissent required to signal unwanted contact, as in the University’s policy, or, as taught by SAPAC, does a sexual action require an affirmative “yes” to satisfy consent?

The University’s final decision found the respondents not responsible for sexual assault, arguing that they were never made aware their actions were unwanted since Campbell never explicitly said “no.”

John Shea, an attorney representing Reuben, cited a document written by Campbell to the Appeals Board that he says demonstrates a misunderstanding of how consent is defined for the purposes of the University’s sexual assault investigation process.

“She even cites the reader to SAPAC’s definition of consent, which is not the University’s definition or that adopted in state law,” Shea wrote in a statement to the Daily. “There may be a larger social problem in this country related to sexual assault, but you cannot from that draw any parallel to this case when there's abundant proof that these boys in no way assaulted a fellow student.”

This discrepancy is seen in what is taught by SAPAC and what is enforced by the University and Michigan State Law.

According to the Student Sexual Misconduct Policy, consent is “Clear and unambiguous agreement, expressed in mutually understandable words or actions, to engage in a particular activity. Consent can be withdrawn by either party at any point.”

The definition provided by SAPAC on its website goes further, saying body language or silence do not constitute consent; only words do.

Though Campbell testified she never verbally said “no,” she stated both in her testimony in the criminal preliminary examination and in a letter to the University’s appeals board that she asked to leave the room before the alleged assault took place. The testimonies of both Barnet and Reuben corroborate Campbell’s statement, though all three disagree about the exact way in which she asked to leave and how they responded when she asked. Reuben and Campbell both testified that she suggested they leave together and that he declined.

“After 10 minutes in the room, things felt scary and wrong,” Campbell wrote in a letter to the appeals board. “I asked to leave and was told ‘no’ by Mr. Reuben. After that, I froze. Did nothing to protect myself, just froze. There was no way to fight, no where to flee. I do not know how to explain that reaction. Something just takes over and you just want to live.”

Campbell argued Barnet and Reuben had malicious, premeditated plans to engage in sexual behaviors with her.

Barnet testified he offered to leave the room but was told he could stay, according to the OIE investigation documents. 

According to Elizabeth Seney, an OIE investigator, in the OIE’s investigation report, Reuben said, “She could have left at any time” and testified that he did not remember the complainant asking to leave the room. 

SAPAC’s website includes a list of five definitions of what does not qualify as consent. Among them is “Silence is never consent. If a person does not verbally say no, it does not mean that they mean yes.” The literature also says, “It is never acceptable to assume that consent is given. Each one of us is responsible for making sure we have consent in every sexual situation. If you are unsure, it is important to clarify what your partner is feeling about the sexual situation. Consent can never simply be assumed.”

However, the investigation and the appeals board found that because Campbell did not provide verbal dissent at any point, the incident could not be considered sexual assault because the men involved would have had no way of knowing their actions were unwanted.In response to this argument, and to the appeals documents Campbell submitted, the appeals board wrote:

“Complainant contends that the training and documentation about sexual misconduct provided by SAPAC to all students, which encourages students engaging in sexual acts to solicit and receive affirmative verbal consent, constitutes the University’s policy on sexual misconduct. We understand why Complainant is espousing the affirmative verbal consent standard, and we are sympathetic to her reasons. However, the ‘Policy on Sexual Misconduct by Students’ that OIE and this Board are obligated to apply states otherwise.”

According to documents from the OIE investigation, a text message conversation between Barnet and Reuben from the night of Dec. 6 consists of a discussion about whether Barnet should leave the dorm room, and Reuben said he was already “hooking up” with Campbell on their way back to the dorm. The conversation continued, and Reuben and Barnet discussed how to set up the room to make a “threesome” possible.

Once Campbell and Reuben returned, Reuben texted, “Should I make a move right now,” to which Barnet replied, “Let’s try this turn lamps on lights off. Trust me it is def doable,” and a minute later, “Ok now I will sit on couch and u sit on couch too. On opposite sides tell her to koi. Join.”

In a letter to the appeals board, Campbell said the text messages retrieved from Barnet’s and Reuben’s phones show that she was not aware of the plans they were making. She said this signifies they knew she was unwilling to participate in the activity they were discussing.

“If they thought I would consent, they would have been talking to me instead of secretly texting each other,” Campbell wrote.

When the text messages were submitted during the preliminary examination for the criminal case, Conlin, the judge who determined there was not enough evidence to move to trial, noted that he interpreted them as “simply a hope for something that’s gonna happen.

They may have planned for a threesome, but I don’t think that rises to the level of force or coercion simply in and of itself, Conlin said.

Preliminary examinations are generally not intended to determine guilt or innocence, but rather focus on whether a case should move to trial.

In her appeals letter, Campbell also wrote, “The defendants are hoping you will not notice how they plotted for hours by text before trapping me in their dormitory room, nor do they want you to see the forensic and physical evidence and witness testimony, all of which corroborates my story.”

Campbell said she froze and was silent at the time of the alleged assault — a reaction she said was considered a common response to sexual assault by University witnesses. Appeals documents from the respondents, however, show expert witnesses hired by Reuben and Barnet to testify during the University’s proceedings refuted these arguments.

In a letter submitted to the University for review by the appeals board, the lawyers representing the respondents argued that the central issue in this case is whether or not Campbell did or said anything that would have indicated she did not wish to engage in sexual activity.

“If Emily failed to do or say something to communicate lack of consent, the fact that after the fact she experienced some psychological reaction (such as, e.g. PTSD) is of no relevance from the point of view of what the boys saw and heard or what consent Emily did or did not give at the time,” the statement read.

In the letter to the appeals board, Campbell expressed her frustration with the University’s decision to allow the respondents to use their own expert witnesses — an issue Mortellaro said is just one example of inequity during the investigation of her daughter’s complaint.

Expert witness Suzanne Rotolo, a certified forensic nurse and certified medical investigator, testified that none of the injuries Campbell sustained are definitive for sexual assault. Katherine Okla, a clinical psychologist, and Roger Pitman, a psychiatrist, were also among those that presented their opinions to the OIE during their investigation.

Mortellaro said she initially chose not to hire a lawyer for her daughter after being told by the University’s investigator Elizabeth Seney that seeking outside counsel was unnecessary during the University’s investigation.

Seney referred an interview request to the University’s Office of Public Affairs.

Mortellaro said the respondents used financial wealth to avoid taking responsibility for their actions. During an investigation of this nature, the University is responsible for finding witnesses to review evidence from the case. The University did in Campbell’s case, and in response, the respondents’ lawyers presented testimony from hired expert witnesses.

“The University should not rely on paid witnesses from either side, because it just inherently makes the playing field uneven,” Mortellaro said. “It makes the richest person have their vision of the truth presented to be considered as opposed to unpaid, unbiased opinions.”

These three expert witnesses were hired by the respondents “to assess the opinions of the University’s experts,” according to documents included in OIE’s investigation, submitted by the respondents’ lawyers.

People who are approved by a judge as expert witnesses — typically based on their education or specialized knowledge — are often hired to provide testimony in court proceedings. It is unclear how the University governs expert witnesses during disciplinary proceedings.

The respondents said the nurse examiner mishandled the physical evidence. They alleged that the University’s psychological expert was “incorrect in her understanding of how memories are formed and retrieved, and the effect trauma may have on memory formation and recall.”

“The opinions of experts the University has chosen to employ simply do not address any question that is at issue in this case. However, because the University has chosen to introduce ‘expert’ testimony to support Emily’s claim that she was sexually assaulted, the defense has retained three experts in the field of SANE examinations, memory formation, and PTSD to assess the opinions of the University's experts,” the respondents’ lawyers wrote.

The SANE nurse documented physical evidence, particularly a certain laceration, which the nurse described as a key indicator of sexual assault. Despite these injuries, one of the witnesses used by the respondents said, “This injury is no longer considered a ‘hallmark of sexual assault,’ ” and the document continues to say their witnesses said the injuries Campbell sustained could have been the result of many possibilities, including consensual or nonconsensual intercourse or trauma induced by the examiner.

J. Samuel Holtz, Washtenaw County assistant prosecutor, prosecuted the case in district court. In an interview with the Daily, Holtz said the SANE report was not something that would have been used in the criminal case’s preliminary exam. In the district court procedures, SANE reports are only used to show that sexual contact occurred, he said.

“What a SANE report cannot show, except in the most extreme circumstances where there’s significant injuries or that type of thing, is a SANE report cannot show whether or not something was consensual or whether it was forced,” Holtz said.

Another piece of contested evidence included a letter written during the appeals process by Cavanaugh, which was not admitted for consideration by the appeals board.

In this letter, which was written after the original University investigation was completed, Cavanaugh summarized his findings for the use of the appeals board as they considered revising the University’s original decision to find Reuben and Barnet not responsible for sexual assault.

“On the night of the incident, Lt. Neumann (now University Police Chief Robert Neumann) with over 20 years of police experience and I thought there was enough probable cause to believe a criminal sexual assault occurred,” Cavanaugh wrote. “The investigation by Elizabeth Seney was very thorough and filled with details. But finding Barnet and Reuben not responsible for the criminal sexual assault of Emily Campbell is unfathomable. I could not respectfully disagree more with the final findings of the OIE investigation.”

When contacted by the Daily, Cavanaugh said he wanted to discuss the case for this article, but his supervisor and Diane Brown, the Division of Public Safety and Security spokeswoman, prevented him from doing so. Brown said University Police Chief Robert Neumann was unavailable to answer questions Tuesday afternoon regarding the role of UMPD in these types of investigations or whether detectives are used as expert witnesses in University proceedings of this nature.

Timothy Lynch, University vice president and general counsel, wrote a letter to Campbell — which was reviewed by the Daily — in December 2014, stating that the OGC, OIE and OSCR had reviewed all the documents submitted by both the complainant and respondents “in light of continuing objections” raised by both parties.

“Detective Cavanaugh’s personal opinions on the findings of OIE, the credibility of the parties or the ultimate issue before the Appeals Board are neither relevant nor appropriate,” Lynch wrote. He elaborated to say Cavanaugh acted outside of University policies as an impartial investigator by sending his letter, and that his letter “cannot be characterized as new information.”

In the letter, Lynch briefly explained what types of evidence are and aren’t used in University investigations.

“The University of Michigan’s sexual misconduct policy and procedures are not designed to mimic the criminal justice system or civil litigation; they are student disciplinary proceedings,” he wrote.

Lynch’s letter continued that while “formal rules of evidence do not apply,” the University attempts to keep the investigation fair to all parties, which might mean “disallowing proffered information from being considered.”

Other documents presented by the respondents in advance of the appeals process were also blocked from consideration.

Jane Briggs-Bunting, an attorney and former director of the Michigan State University School of Journalism, said University disciplinary proceedings are often less formal than a criminal case, and standard rules of evidence do not generally apply. However, she said if the University is allowing one party to bring in extra witnesses, the other party should be notified.

Lynch could not be reached for comment on Tuesday, and the University’s Office of Public Affairs declined to make him available for an interview.

During the appeals process, Mortellaro said the respondents’ lawyers were meeting with various University officials and staff members to discuss this case.

The Daily attempted to confirm these meetings with Lynch, but he was unavailable for comment. The respondents’ lawyers also declined to comment on this matter.

“I think it’s highly unusual for generals counsel to be involved in student disciplinary proceedings and talking to attorneys on one side and excluding the party on the other side,” Briggs-Bunting said.

Following a meeting with Stacy Vander Velde, associate director of OSCR, Mortellaro said she left with more questions than answers.

“I had a long conversation with (Vander Velde) and I just asked her what policy and procedure they were using to make these determinations and she said she had no idea, that it was all coming from the general counsel's office, and later we found out that the respondents’ attorneys were having undue influence over the counsel. We were never made privy to that or allowed to respond in any way.”

The University’s Office of General Counsel is not mentioned in the University’s Policy on Student Sexual Misconduct, which lists offices such as OIE and OSCR that are traditionally involved in the proceedings.

An OSCR staff member said Vander Velde was unavailable for comment on Tuesday, and the Office of Public Affairs declined to make a representative from OSCR available for comment.

Fitzgerald declined to discuss policy used to determine admissible evidence or testimony, referring the Daily to the University’s Student Sexual Misconduct Policy. He also declined to discuss standard language used for advising students on hiring an attorney during the process, citing the Student Sexual Misconduct Policy’s provision that students may have a “Support Person” participate in the process. The policy does not stipulate whether the University is required to notify the other party when a complainant or respondent involves a support person, such as an attorney.

“It’s just about equity, and that’s why we filed with the federal government,” Campbell said. “Their rule is that the University can decide either way as long as it is equal, but it wasn’t. You can’t pick and choose what evidence is seen.”

Campbell did not hire her own lawyer until November 2014, 11 months after the alleged assault, when she decided to file a civil suit against Barnet and Reuben. The decision not to hire a lawyer, Mortellaro said, was made based on trust in the University’s process — trust she and Campbell said they feel the University abused. Because they were advised that they did not need a lawyer, Campbell and Mortellaro said, the investigation and appeals process was filled with miscommunication and confusion.

“They told us it was completely unnecessary to have a lawyer to work through the University process,” Mortellaro said.

Nacht, the attorney representing Barnet, said he regularly represents women and men in the University’s sexual assault process.

“It is normal for a student or for that matter a university faculty member or staff member going through the process to want the assistance of counsel,” he told the Daily in a statement. “The fact that women and men continue to contact our firm indicates that the need is there.”

Mortellaro said the status of Campbell’s case was always unclear during the appeals process.

“All of the sudden, this had gone up the chain of command, and no one could tell us why or who was making decisions, or what they were basing those decisions on,” Mortellaro added.

Prior to submitting Campbell’s request for appeal, however, the University was clear about its policy. As is publicly stated, the process did move in a predictable way, Campbell said. When the incident was originally reported, Campbell was offered a resolution by OSCR, which would have been to have the respondents complete an essay or come to some other informal agreement to solve the conflict, which Campbell rejected.

Once the University found the respondents not responsible for sexual assault, and after Campbell requested an appeal, both she and the respondents were able to submit any new, relevant information for the appeals board to review. After this, Mortellaro said everything seemed to come to a stop.

“There came a point in the appeals process where we went off of that flow chart and no one could answer why, and that’s when we discovered that the respondents’ attorneys were having private meetings and e-mails and conference calls with the general counsel's office with the University,” Mortellaro said.

The University’s Student Sexual Misconduct Policy states, “Upon receipt of a report, the University will strive to complete its review within sixty (60) calendar days.” Campbell reported the alleged assault on Dec. 6, 2013, and the review was completed on June 26, 2014. The final report from the appeals board was issued on Dec. 22, 2014 — more than a year after the alleged assault. The suggested timeline for completing the appellate process is within 15 days of the appeals board’s receipt of the appeal, and Campbell submitted her request for appeal on Sept. 29, 2014, and received a final decision on Dec. 22, 2014.

“I think the respondents have great legal representation and that they played the system beautifully,” Mortellaro said.

Mortellaro said she made numerous phone calls during the three-month period of the appeals board deliberations, including e-mailing and calling the office of University President Mark Schlissel multiple times asking to reflect on Campbell’s experience with the University’s process. The Daily could not confirm this, and Fitzgerald declined to comment.

While motions to dismiss the civil case are pending, Barnet and Reuben are able to return to campus as soon as January 2016. Their return to campus is pending their submission of a 2,000-word essay — which is to be based on a series of required readings provided by the University — and their attendance at multiple mandatory, individual meetings before and after their return to campus. They will be on disciplinary probation and are prohibited from having contact with Campbell for the remainder of her enrollment at the University.

Daily News Editor Will Greenberg contributed reporting.

Clarification: This article has been updated to better reflect the nature of the testimony and statements around whether Emily Campbell asked to leave the dormitory room. According to these documents, Campbell and Aaron Reuben state that Campbell suggested she and Reuben leave the boys' dormitory room and go back to her own room.

An additional quote from District Court Judge Richard Conlin has also been added to discussion of the text messages to provide additional context.