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Consent can be withdrawn by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.
“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.
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
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 Wallesby 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
3-News
the University’s OIE-
conducted investigation,
which included review by an
appeals board after the initial
decision was made to find
the respondents not responsible
a criminal case filed in the 14A District Court
an ongoing civil case filed in the Washtenaw County
Circuit Court
an investigation by the U.S. Department of Education.
The Michigan Daily — michigandaily.com
News
Wednesday, April 8, 2015 — 3
June 26, 2014: University completes its
internal review of the case, finding Barent and
Reuben not responsible for sexual assault, but
responsible for taking and disseminating photos
without Campbell’s consent.
September 29, 2014: Campbell files an
appeal with the University.
Dec. 22, 2014: A University’s appeals
board again finds Reuben and Barnet not
responsible for sexual assault.
January 2016: Reuben and
Barent will be able to return
to campus, pending the
completion of University
mandated responsibilities.
See POLICIES, Page 5
investigation must establish that sexual contact did occur
the encounter must violate the University’s Statement of
Student Rights and Responsibilities
the encounter must have been unwanted by someone
involved
the party responsible for the unwanted sexual acts must
have been aware that those actions were unwanted: require
that a verbal “no” was expressed by one of those involved