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Consent can be withdrawn by 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

