UPDATE: County attorney taking another look at Gophers’ assault investigation

When the University of Minnesota suspended 10 football players for their roles in an alleged sexual assault, dozens of teammates announced a short-lived boycott of football activities.

Among the players’ gripes was a lack of “due process” for their suspended teammates.

That appears to be one of a few misconceptions about the way the university and law enforcement handled the Sept. 2 incident that resulted in a police investigation, the immediate suspensions of four players, restraining orders that forced six players to miss an additional game and, ultimately, the pending expulsion of five Gophers players.

Players and the public have struggled not only with the disturbing nature of the incident but with subsequent decisions and discipline by law enforcement and the school.

“In a case like this, emotions are so high in all quarters, and in these emotional, high-profile cases, the law and legal standards — and what actually has been adjudicated and what has not — can get lost,” Susan Gaertner, who served as Ramsey County attorney from 1995 to 2011, said Monday.

The university, for instance, did not decide arbitrarily to investigate the alleged assault; it was bound to do so by Title IX, the 1972 law that prohibits discrimination based on sex in all schools receiving federal funding, and the Violence Against Women Act (VAWA) Reauthorization (2013).

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“Those are the laws that dictate how a school has to respond to allegations of sexual misconduct on campus,” said Kathryn Nash, a Minneapolis attorney who specializes in labor, employment and higher education. “If a school knows, or should know, of a possible sexual assault, it has a responsibility to take some action.”

Furthermore, Gaertner said, “due process is often in the eye of the beholder.”

“In my experience, often victims, or families of victims, think that the system is all about protecting the suspect or defendant; and if you’re a defendant, or the loved one of a defendant, then you think there isn’t enough due process,” Gaertner said.

“The court system certainly has many, many standards of procedure, and many, many rules about how things are done so that a suspect’s constitutional rights are protected. In other settings, such as schools, there are also requirements that due process needs to be followed, but what looks like due process in settings other than a criminal case can vary.” Related Articles Rashod Bateman practicing with Gophers, but his eligibility remains uncertain

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In a Title IX case, Nash said, a school is required to provide due process, which requires notice of the allegations and an opportunity to be heard. VAWA has additional due process requirements, such as notice of when meetings will take place with other involved parties; parties must be given access to the information used by decision makers; and there must be written notice of an outcome.

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Furthermore, Nash said, results of such investigations are considered part of a student’s education record, generally protected from public disclosure under the Family Educational Rights and Privacy Act.

In other words, the university is not hiding behind privacy laws, it is following them.

Nevertheless, an 80-page report on the investigation — conducted by the school’s Office of Equal Opportunity and Affirmative Action — was leaked to media outlets last week. A source told the Pioneer Press that details in the report helped persuade the football team to end its boycott.

In the report, the alleged victim reports being sexually assaulted, possibly by more than 10 players and an underage recruit, early on the morning following a Sept. 1 season-opening victory over Oregon State.

Sometimes-conflicting testimony by accused parties, as well as text and email messages shared between them, indicates that several football players did have sex with the young woman, sometimes more than one at a time.

The Minneapolis Police Department, which investigated the incident and sent its findings to Hennepin County Attorney Michael Freeman, said Monday that the case is closed and would not be reopened in light of the school’s leaked report.

“The University’s investigation was not a criminal investigation,” Sgt. Catherine Michal said in an email. “The students that were interviewed by the University were not read the Miranda Warning; therefore, the department would not be able to use the information obtained.”

Freeman declined to press any charges in the case on Nov. 1. Many have accepted that decision as criminal exoneration, but that isn’t the case, Gaertner said.

“I’ve read a number of times people saying the students involved were cleared, or shown to be innocent — or other types of related expression — and that’s just not accurate,” she said.

There are a number of reasons a case might not go to trial, Gaertner said, such as a negotiated settlement. Trials are expensive, she added, and sometimes victims don’t want to feel “re-victimized.”

“One of the most important concepts in all of this is that a prosecutor cannot bring charges against a suspect unless that prosecutor believes that the case can be proven beyond a reasonable doubt,” she said. “That standard of evidence is the highest standard there is in the law. You can’t charge somebody just because you think they did it; you can only charge someone if you believe you can prove they did it — and not just prove it, but prove it beyond a reasonable doubt.”

A school investigation into possible violation of its student code of conduct requires a less strenuous standard.

“Schools are required to use the preponderance of evidence standard, which means ‘more likely than not,’ ” Nash said. “If it’s established that it’s more likely than not that misconduct occurred, then the school has to find them responsible for a policy violation.”

The different burdens of proof, Nash said, are because “in a criminal case you can lose your liberty, you could go to jail. Under a school’s process, a student could get suspended or expelled, just like they could for any other policy violation.”

Attorney Caroline Palmer, public and legal affairs manager for the Minnesota Coalition Against Sexual Assault, said there are varying reports on how many rapes are reported to law enforcement, from 20 and 50 percent, “but nowhere near 100 percent.”

But the fact that the public has access to the U’s EOAA report, she said, is positive.

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One, she said, is how thorough a school investigation into a case like this can be. The U case involved interviews with 28 students, reviews of electronic messages and police documents, as well as video and photo evidence.

It also shows, Palmer said, “some of the entitled attitudes that might come forward in these cases, as well as a lack of understanding of what consent is, and boundaries, almost anything — even potentially a crime.”

Some have speculated whether the woman could be charged for sexually assaulting the underage recruit, a possibility brought up by players attorney Lee Hutton during a judicial hearing on restraining orders that kept five players from attending a victory over Rutgers on Oct. 22, according to court transcripts.

Palmer said there is no statute that expresses the age of consent in Minnesota, but that various state codes end age restrictions at 16 unless the actor, or accused, in the case is a figure of authority (teacher, coach, mentor) or is a member of the family or household with the minor.

In this case, it would have to be shown “that the act was nonconsensual in some other way, such as force, coercion or incapacity,” per code 609.344, Palmer said. Also, she added, the player who filmed the recruit’s participation and disseminated video among friends — as revealed in the police report — “could potentially be charged for creating child pornography under 617.246.”

Federal law requires colleges and universities to offer sexual assault training to all students, and the U requires all new students to take an online sexual assault literacy test. In addition, the athletics department holds a mandatory annual event for all student-athletes, followed by policy review sessions and reinforcement of those lessons conducted by individual teams.

Palmer said a required course for all students would be helpful.

“A lot of students don’t come to college prepared to handle sex beyond the mechanics of not getting pregnant. They’re not taught about relationships, consent and respect,” she said. “We know such hesitancy does youth a great disservice, which is not to shift blame to the schools but to say we don’t equip youth to handle these situations well.

“You’d hope students 18, 19, 20 years old would have a basic understanding of these things, but this (report) shows that isn’t always the case.”