Latest details in Michigan rape case leave many unanswered questions

Friday February 14th, 2014

More than four years after an alleged rape, a Michigan football player was expelled from the university.
Damian Strohmeyer/SI

In November 2011, Dr. Douglas Smith attended the University of Michigan Board of Regents meeting in a conference room in the Fleming Administration Building. School president Mary Sue Coleman was seated at one end of a long table, with the regents and various administrators lining the sides. A few media members and some attendees from the general public, including Smith, sat in chairs against the walls.

At the end of each meeting there is a period for public comment, and that is when Smith, a pathologist who worked at the school from 2006-09, stepped to a podium set up at the end of the table opposite Coleman and read a prepared statement.

"You don't need to travel to Penn State to find a university administration who has failed to protect the alleged victims of sexual assaults," Smith began. He went on to describe how in 2009 then-freshman kicker Brendan Gibbons allegedly raped another freshman student-athlete at a fraternity party. The incident was reported to campus and Ann Arbor police. The victim took a rape kit, which revealed vaginal tearing. According to a police report obtained by Smith, authorities learned that a friend of the victim was told by one of Gibbons' teammates that if the victim pressed charges "then I'm going to rape her because, [Gibbons] didn't." A short time later, the victim cut off contact with police and the case went dormant.

After outlining the alleged incident from two years before, Smith asked of Coleman and the others at the table: "Where was the university administration when it came time to protect this victim and assure her that she had the support of the administration? Where was SAPAC (the school's Sexual Assault Prevention & Awareness Center)? Where were the campus police? Why were neither Gibbons nor the football player who threatened to rape her brought up on charges of violating the student code of conduct?"

According to Smith, at the conclusion of his statement (a copy of which Smith provided, neither Coleman nor any of the Board of Regents said anything to him. Smith returned the next month and made a similar speech, and at the close of his remarks he walked up to Coleman and placed a picture of the victim in front of her. "I wanted [Coleman] to know that there was a person who suffered," Smith told "I wanted her to know this wasn't an abstract story. This was real."

More than four years after the alleged rape and more than two years since Smith brought it to the attention of the most powerful administrators at Michigan, the 2009 incident and the school's handling of it came to the fore when Gibbons was expelled in late January for a violation of the university's Student Sexual Misconduct Policy. Documents obtained by The Michigan Daily, which first reported the expulsion, show that it was directly related to the 2009 incident and that there was evidence to support "a finding that the Respondent engaged in unwanted or unwelcome conduct of a sexual nature, committed without valid consent, and that conduct was so severe as to create a hostile, offensive, or abusive environment."

Gibbons' dismissal raised many questions, most of which are still unanswered despite consistent pressure from The Michigan Daily and people like Smith. Why did the school not do something back in 2009 or, at the least, in 2011 when Smith brought the alleged crime to the attention of Coleman and others? Further, what prompted the school to finally examine an incident?

The answers to those questions and others remain outstanding in no small part because of the school's liberal interpretation of privacy laws, including the Family Education Rights and Privacy Act (FERPA). According to the Department of Education website, FERPA does not shield "final results of a disciplinary proceeding related to a crime of violence or non-forcible sex offense," provided that "the student who is the alleged perpetrator is found to have violated the school's rules or policies."

So it appears that Michigan could have released information about the Gibbons case that it has chosen to keep private. Instead, seemingly benign facts such as the exact date when the school began investigating the 2009 incident are being withheld.

When contacted for comment, Michigan spokesman Rick Fitzgerald referred an reporter to a web page that detailed the school's policies regarding sexual assault allegations, pointed to several statements from school officials and cited the aforementioned privacy laws. Gibbons, who has not spoken publicly since his dismissal from Michigan, could not be reached for comment. Several other Michigan officials were not made available.

"We are still seeking a lot of answers," Smith says. "My big issue isn't the sexual assault, per se, but the [incidents] that the school has ignored or downplayed to protect its image."

It is unclear whether Smith played any role in Michigan officials finally deciding to investigate the 2009 incident. However, it seems that he kept the case from being forgotten when many at Michigan hoped that it would be.

Smith grew up in Iowa City and both his parents taught in the medical school at the University of Iowa. He got his undergraduate and medical degrees at Iowa, then a Ph.D. in Experimental Pathology from the University of Minnesota. He worked at several schools before being hired by Michigan on a three-year contract in 2006 as a professor of Pathology, directing a lab that performed tissue matching for organ and bone marrow transplants. His contract was not renewed in 2009 -- he says it was because some lab techs disagreed with his management style -- and at the age of 55 he retired. Smith says he has always been the kind of person who speaks his mind, but he took an even stronger interest in civic and university matters once he was unemployed. He began frequently attending meetings of the Washtenaw County Board of Commissioners and the Board of Regents.

The Gibbons case and another incident of alleged sexual assault early in 2011 involving another University of Michigan athlete were among those Smith was drawn to. (No charges were ever filed against the athlete from the other incident, who later left the program.) Smith took special interest in the Gibbons case because it involved a member of the Michigan football program. After his comments before the Board of Regents in 2011, the victim reached out to Smith via Facebook, he says. As he learned more about her, including the fact that she had begun advocating for more education of students about sexual assaults, he came to view what happened to her as the most egregious example of an institution failing one of its students to protect its image. "She is a remarkable young woman who responded in a way she could cope with," Smith says. "She didn't go public and have a public trial, but she worked within to try and help the university improve."

But Smith believed the university couldn't improve until it acknowledged and investigated what allegedly occurred in 2009, so in September 2013 he offered his most public criticism of the university, posting a lengthy story about the Gibbons case on his website that included links to scanned images of the police file. Smith surmises that university officials viewed him as nothing more than a disgruntled ex-employee, but his piece about the Gibbons case was viewed more than 125,000 times before The Michigan Daily reported on Gibbons' expulsion last month, Smith says. Still, he doesn't believe his story prompted the school to act. "The school has been ignoring me since 2011. I don't know think they would suddenly decide then to do something," he says.

What was it? Speculation has centered on the fact that in 2013 the school finalized a revised policy for handling allegations of sexual assault. Smith says that line of thinking gives the university a pass it doesn't deserve. First, Smith notes, the school had the authority to investigate Gibbons and the teammate who allegedly threatened the victim in 2009 and potentially dismiss them for a code of conduct violation. There is no university rule stipulating that a criminal charge must be filed before the school can investigate a code violation. Second, the school's new sexual assault policy is born out of mandates from the Department of Education in 2011. At the time those were announced, Michigan adopted an interim policy that reflected those changes, and the standard for investigating an allegation changed from "clear and convincing evidence" to "preponderance of the evidence." Michigan officials could have applied the revised standard in 2011 to the Gibbons case; there was no rule preventing them from revisiting prior incidents. There is a possibility that the university took action against Gibbons more than four years after the alleged incident because it was armed with new information, as the revised policy allows for older cases to be investigated "at any time" if new facts come to light.

Questions have also been raised about when athletic department officials knew Gibbons was being investigated and when they learned of his expulsion. The Michigan Daily reported that the associate director of the school's Office of Student Conflict Resolution (OSCR) signed a letter dated Nov. 20, 2013 that detailed the finding that Gibbons had committed sexual assault. Three days later, he kicked three extra points in a game against Iowa. On Nov. 30, Gibbons did not play in the Wolverines' season-finale against Ohio State because of what Michigan coach Brady Hoke called a muscle problem. Gibbons was notified in a letter dated Dec. 19 that he was dismissed from the school, according to The Michigan Daily. Then, on Dec. 23, Hoke announced that a "family matter" would prevent Gibbons from playing in the Buffalo Wild Wings Bowl.

Hoke was questioned after Gibbons' expulsion but said because of FERPA he couldn't offer specifics. In a statement, Hoke said: "Our usual approach is not to issue discipline related to a student's standing on the team before the university's process runs its course and the outcome has been determined." When asked if it was really an injury that caused Gibbons to miss the Ohio State game, a school spokesperson cut Hoke off and said privacy laws prevented the coach from answering.

Smith says he has not had substantial communication with the victim for more than a year. She got upset that he quoted some of her Facebook messages to him in the story he posted on his website -- he subsequently removed them -- and she stopped answering his messages. (She did not respond to an interview request made by via Facebook.) The fact that she has never spoken publicly combined with the university's decision to use privacy laws to shield pertinent information has created something of a standoff.

In one of several poignant editorials published in The Michigan Daily, which has done admirable work holding the school accountable, the paper wrote: "Attempting to broadly -- and potentially inaccurately -- interpret laws or school policies as an excuse for remaining mute is an act of cowardice."

It's the kind of language Smith has been spouting for years. "I was so glad that The Daily had been able to find out about [Gibbons] being expelled because I thought no one would ever really know what happened," Smith says.

And now that people know?

"Hopefully," he says, "they will keep asking tough questions."

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