In the last week, 10 players on the Gophers football team received an athletics suspension, the entire 126-player team boycotted football activities and, and in a less-than-48-hour turn of events, the team ceased its protest.
The 10 players were suspended from all football activities Tuesday after a University of Minnesota investigation linked them to an alleged Sept. 2 sexual assault, despite a separate criminal investigation that produced no charges. The players now face expulsion, suspension or probation from the University.
The suspension prompted the team’s boycott after players claimed the suspension was unfair because police had already investigated the alleged sexual assault in September, and the Hennepin County Attorney’s Office declined to press charges.
But, higher education institutions — like the University of Minnesota — are federally required to separately investigate sexual misconduct reports using different standards and a lower burden of proof than the criminal justice system. And with the federal government’s pressure on schools to clamp down on sexual misconduct, it’s become increasingly common — and controversial — for colleges and universities to sanction accused students for sex offenses, even if a criminal investigation or prosecution of the same allegation results in no charges or a not guilty verdict in court.
At the University of Minnesota, the Office of Equal Opportunity and Affirmative Action investigates reports of sexual assault, along with stalking, sexual harassment and relationship violence.
Even when a county attorney doesn't charge someone with a crime, a person who says they've been violated can report their alleged perpetrator to the University by calling or emailing EOAA for an appointment.
Prior to the appointment, the potential victim-survivor is provided with an information detailing the reporting process and a list of victim resources.
A representative from the office then interviews the potential victim-survivor and any witnesses to the alleged assault. They can also collect evidence, like text message exchanges and medical records.
The EOAA opens an investigation if there’s a “preponderance of evidence” — in other words, it the reported incident “more likely than not” occurred. The courts, however, use the stricter “beyond a reasonable doubt” standard to determine guild.
The school requires affirmative consent — “informed, freely and affirmatively communicated willingness to participate in sexual activity that is expressed by clear and unambiguous words or actions," as defined in the 2015 policy — in sexual encounters.
In the legal system, however, an investigation opens before it’s decided if the alleged crime happened. Police interview suspects, witnesses and the potential victim, collect evidence, and file a report with the attorney’s office.
The prosecuting attorney then decides whether to press charges — not the potential victim-survivor — and those charges could hold legal consequence.
Under Minnesota law, a victim-survivor’s testimony doesn’t require witness corroboration to be held as evidence, and a victim-survivor doesn’t need to have shown resistance during the incident.
The law also doesn’t consider past criminal sexual conduct, unlike the University. If the alleged perpetrator is accused of several sexual misconducts, the school can investigate without even asking the victim-survivor for their agreement.
When the accused plans to use consent as a defense against the alleged sexual assault, the criminal district court takes into account the victim’s previous sexual relations with the perpetrator. It can’t, however, ask the jury to put more weight on a victim-survivor’s sexual past when deciding if, by law, the incident warrants a charge.
According to the University Aurora Center's advice for victim-survivors of sexual assault, “It doesn't matter what the circumstances were that led up to the assault — if you flirted with the person, if you chose to have sex with the person before, or if you were drinking.”
Just like in court, reporters under the University’s Student Conduct Code can seek attorney representation. They can also bring an advisor or advocate — available through the school’s Student Conflict Resolution Center and the Aurora Center — to the investigation meetings.
Accused parties are also allowed to have an attorney or advocate with them throughout the process.
The investigator compiles a report after meeting with the reporter and witnesses. That file includes background information, the allegation and response from the accused, the investigator’s findings, and a conclusion, which states whether the offense occurred.
Each of seven EOAA staff members reviews the file and sends it to the University’s Office for Student Conduct and Academic Integrity. OSCAI offers a resolution based on the report. If both the reporter and accused agree on the solution, the case is settled. If neither party can agree on a resolution, or it’s requested, the case would be resolved by a panel in a hearing.
At the University, sexual assault can be defined anywhere from non-consensual touching over clothing to rape. Depending on the violation, whether force was used, if the reporting party was inebriated or under the influence of drugs, if consent was obtained, whether the accused person “accepts responsibility for their actions,” the availability of supporting evidence and witness corroboration, sanctions vary. For touching someone through clothing, a student could get a warning or probation. If found responsible for rape, a student could be suspended for 2 or more years, or expelled.
In court, one party doesn’t have the option to agree or disagree with the judge’s decision. Sexual assault can be charged on five different degrees, with sentences ranging from one to 30 years behind bars.
In the case of the 10 accused football players — five of whom were recommended for expulsion by OSCAI, four for suspension and one for probation — OSCAI’s proposed sanctions were appealed, the players’ attorney, Lee Hutton, has said.
Next will come the school’s formal resolution process, which involves a hearing before a panel of trained students, faculty and staff. The reporter and accused can act through a lawyer or advocate, but neither party is in the room at the same time.
The legal system chooses its jury panelists at random from county residents.
The school’s hearing panel has the opportunity to alter OSCAI’s sanctions in either direction. If there is still a conflict over the resolution, either party can appeal the panel’s conclusions to the provost within five days of the decision. The provost has 30 days to make the final call.
The University’s process, in its entirety, is private. While the football players’ investigation report was leaked to a local TV station, the EOAA investigation file is not public record, and releasing it can be considered retaliation under the school’s code.
Legal documents filed in a court of law are usually public. A criminal complaint and police report are accessible by the public, though they may be redacted to protect the privacy of a potential victim-survivor.
Though the processes differ, a violation from the University can sometimes be used as leverage in court as evidence of a crime, said Abby Honold, a University fifth-year student majoring in early education who was assaulted in November of 2014. It helped her when taking her rapist, Daniel Drill-Mellum, 22, a University student, to court.
More often than not, criminal charges aren't filed, said Jeanne Ronayne, executive director at the Minnesota Coalition Against Sexual Assault and Rape.
"It surprises people to learn that," she said. "In the case with the dynamics that you have here, cases don’t get charged. It's a very difficult kind of case to prove."
Now a week after the boycott was first announced, the Gophers football team is still claiming an absence of due process in the discipline of the 10 players accused of being involved in the September sexual assault. They’re asking for “an open discussion about the lack of due process that occurs when an accusation is made against anyone," senior wide receiver Drew Wolitarsky said in a statement Saturday, when the team announced the end to its boycott.
While due process concerns in schools’ internal sexual misconduct adjudications are frequently raised, the University advertises its adherence to “due process” — or fairness for all parties — on its disciplinary process webpage.
Head football coach Tracey Claeys admitted a lack of understanding of the University's disciplinary processes and said all University staff and students should receive education on the differences between the school's student conduct code and criminal law.
"We have to do a lot better — I have to do a lot better — on being trained on all those processes," he said in a Sunday news conference.
Lawsuits filed on behalf of accused students against their schools and accusers are also increasingly common, but are usually unsuccessful.
Some of the accused players may also file civil lawsuits against "everyone," including the alleged victim-survivor, Hutton told the Minnesota Daily.
The University hearings for the 10 suspended football players will likely begin in January, University President Eric Kaler said at a Saturday news conference.