With an epidemic of sexual assault sweeping college campuses across the nation, including the University of Michigan, there are countless topics of uncertainty and controversy. In a four-part series, James Brennan seeks to explore them with interviews and personal research. This is part three.

James Brennan

Trigger warning: The following article includes descriptions of sexual assault and may be triggering.

For students who have attended the University in the past few years, the issue of sexual assault will forever be synonymous with the name of a former football player.

The University’s handling of rape allegations against former kicker Brendan Gibbons became a national news story last year, and for good reason. After The Michigan Daily broke the story, online editor Austen Hufford wrote a thorough piece detailing the University’s new Student Sexual Misconduct Policy, accompanied by a helpful timeline of events. Here’s a short version of (my interpretation of) what transpired:

In 2009, the University had a terrible sexual assault policy, which allowed Gibbons to be accused of assault without investigation. Two years later, the Department of Education issued a letter arguing that poor handling of sexual assault accusations was a violation of Title IX. Not wanting to be the kind of university that discriminates on the basis of sex, the University instituted interim rules for sexual assault while it began the process of building a new policy. After two years of tinkering, the University finalized the Student Sexual Misconduct Policy we have today. Shortly thereafter, the University expelled Brendan Gibbons on Dec. 20, 2013.

The total time between Gibbons’ alleged assault and his expulsion was more than four years.

This was a failure of administration on a massive scale, one the school actively attempted to obfuscate. Had it not been for leaked documents obtained by The Michigan Daily, it’s entirely possible we would never know the extent of the University’s murky inner workings. Here’s something we do know: the Gibbons case was only one of dozens, maybe hundreds, of sexual assault accusations that the University dealt with under its former, irreverent policies.

As of August 2014, 76 colleges and universities are under federal investigation for their handling of sexual assault cases. Columbia University may be the school most notorious for its failures, in large part due to student and survivor Emma Sulkowicz. Sulkowicz was violently raped her sophomore year, but the university severely mishandled and then dismissed the case. In a combination of performance art and protest, Sulkowicz has been carrying her mattress around Columbia all year, representing the weight she carries while her rapist remains on campus. Her work has gained national attention, manifesting itself through nationwide demonstrations called “Carry That Weight Day of Action”.

While Sulkowicz and Gibbons’ names will forever be connected to universities mishandling sexual assault, one other name may end up having an equal influence: Drew Sterrett.

Sterrett was suspended in April of 2014 following allegations of sexual misconduct. In May, Sterrett filed suit against the University, alleging violations of his rights to due process in the school’s investigation. Since the Department of Education issued the letter encouraging colleges to adopt new policies, more than 20 lawsuits of this type have been filed against universities.

Criticism of how schools investigate and punish accused assaulters is not reserved to those facing the consequences. In October, 28 Harvard Law School professors signed on to an op-ed in the Boston Globe objecting to the school’s sexual assault policies, which carry many similarities to The University’s policies. The statement, signed by liberal scholars like Charles Ogletree and Alan Dershowitz, argues that Harvard’s procedures “lack the most basic elements of fairness and due process” and “are overwhelmingly stacked against the accused.”

In interviews with dozens of students, concerns about due process were barely an afterthought. Most students I asked were unaware of Sterrett’s lawsuit, and upon hearing my basic rundown of the case, gave mixed reactions. As we worked our way through the issues around the University’s policy, most students developed a reluctant desire to see better respect for due process. However, some remained largely skeptical of accused rapists being mistreated.

LSA senior and former SAPAC volunteer coordinator Kathryn Abercrombie asserted that the University affords the accused appropriate due process while maintaining their support for survivors. Abercrombie also defended the school’s burden of proof, which only requires a “preponderance of evidence” — this is the lowest burden of proof in American civil law.

Abercrombie argued that the University’s policies show how it tries to stand by survivors, which she feels is most important (also acknowledging that not all who’ve reported feel this commitment from the school). Moreover, Abercrombie acknowledged the possibility of Sterrett’s case being mishandled at an individual level, while also pointing out that filing a lawsuit does not mean he is innocent.

Anne Huhman, SAPAC’s program manager for prevention and education, defended the University’s use of preponderance of evidence, saying the school’s sexual assault policy “follows the guidelines established by the U.S. Department of Education and its Office of Civil Rights.” According to Huhman, the Student Sexual Misconduct Policy “strives to place the rights of both parties at the core of the process.”

***

Before I go on further, I’ll pause to acknowledge the privileged position I come from; as a male, and as a 6-foot-2, 220-pound male, the possibility of being sexually assaulted has virtually never entered my head. I’ve never been sexually assaulted, and my ability to truly understand the trauma a survivor feels or the fear women have of being raped is minimal.

With that being said, I also come from the privileged position of having never been accused of a crime I did not commit. Nor was I ever found guilty without strong evidence and harshly punished in a way that will follow me for the rest of my life. Like any rational student, I want my school to stand up for students that have been sexually assaulted and take swift action against guilty parties. But, like any rational student, I accept that the term “guilty” cannot be taken lightly.

The vast majority of sexual assault accusations are genuine and accurate — but some aren’t. The number of false accusations, whether fabrications or from mistaken identity, is not known. A widely cited statistic claims only 2 percent of reported rape accusations are false, but this number is largely without scholarly basis. Given the underreporting of rape and other difficulties in creating estimates, it’s possible that false accusations are that low — or lower. No study has found a conclusive, accepted number.

Whatever this number is, we know one thing: it isn’t zero.

People have always been falsely accused of crimes, and sexual assault is no exception. The University and other schools have clearly failed in their duty to protect students from rape and sexual assault, but they cannot answer by flippantly branding students as rapists. The University must continue to aggressively investigate claims of sexual violence while respecting in full the due process rights of the accused.

Women “crying rape” is not a regular occurrence, and to any so-called men’s rights activists who think I’m on your side, I’m not. I consider myself a feminist and I cannot imagine what would possess a person to make up rape accusations, especially after seeing the hell that female survivors in particular go through seeking justice. As the son of an attorney, and a strong advocate for criminal justice reform, I also, however, understand the hell that comes from criminal convictions.

Preventative measures — primarily education and campus activism — will play a much stronger role in limiting sexual assault on campus than threats of punishment. But rape will continue to happen, and survivors deserve justice. Expulsion is a punishment worthy of its crime, and serves the valuable purpose of relieving at least some trauma for survivors. Similar, less permanent measures should accompany reforms to improve due process. One suggestion is immediate reviews for 60-day restraining orders after all sexual assault allegations. This would put needed space between survivors and the accused, while also maintaining a commitment to fairly evaluate the situation before more drastic action.

It’s likely that instituting greater due process and standards of evidence will result in guilty offenders getting away. That is a reality we have to accept, and one we accept with our current policies. It’s a reality we have accepted in our justice system forever, and one we will always have to accept. Sir William Blackstone, the intellectual godfather of American law, wrote in 1765 that “better that ten guilty persons escape than that one innocent party suffer.” We demand this standard for the accused in all crimes, and sexual assault is no different.

I am incredibly torn on this problem. While I’m deeply committed to respecting the rights of accused persons, I was shocked by the sheer number of women I met during the past month who have been assaulted, most of whom never saw justice served. This is an outrage.

The night of the “Carry That Weight” protests, I walked back through the then nearly empty Diag. A list of demands remained papered over the ‘M’, but something else stuck out to me. Because of the mass of students walking through the Diag earlier, I hadn’t noticed the spray painted messages surrounding the M. In yellow, all capital letters, one demanded “EXPEL RAPISTS.” Another read “ADMINS DEFEND RAPISTS.” I felt a deep conflict, remembering the way my blood boiled reading the horrific details of Emma Sulkowicz’s rape and dismissal. I also shuddered at the thought of an innocent person being labeled a sex offender, consequences that last a lifetime.

Between classes earlier that day, I stood somberly reading the demands, trying to listen in on other students’ conversations about the protest.

“I mean, this is what we’ve all been waiting for, right?”

James Brennan can be reached at jmbthree@umich.edu.

Leave a comment

Your email address will not be published.