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University of Minnesota football players reverse course, end boycott

By   /   December 19, 2016  /   No Comments

Well, that didn’t last long.

On Dec. 15, members of the University of Minnesota football team announced they would boycott practice and playing until suspensions against 10 of their fellow teammates were lifted. Senior player Drew Wolitarsky criticized the university for not providing the team with answers and suggesting the players had been suspended “for things they didn’t do.”

By Saturday morning, Wolitarsky and the other members of the team were singing a different tune.

Prior to that time, not much was known about the incident. Watchdog laid out the facts as known at that time: A female student accused multiple football players of sexual assault, but acknowledged sex with some of the players “may have been consensual.” Three videos provided to police showed her to be “lucid, alert, somewhat playful and fully conscious; she does not appear to be objecting to anything at this time.”

Photo: Wikipedia

NO ENTRY: A restraining order barred the accused players from TCF Bank Stadium until a settlement was reached.

Even though police did not charge the players, the woman obtained a restraining order against them that prohibited them from entering TCF Bank Stadium because she worked there. After an appeal from the player’s attorney, Lee Hutton, both sides agreed to a settlement: The players could enter the stadium but had to remain 20 feet from the woman, and they couldn’t contact her. The accuser said of the settlement that she was “glad this is over” and that she “just wanted to feel safe.”

Police did not charge the players with sexual assault, but the University of Minnesota conducted its own investigation – as it must or risk a Title IX investigation from the Education Department – and suspended the 10 players. Minnesota’s Equal Opportunity and Affirmative Action office, which conducted the school’s investigation, recommended expulsion for five players, one-year suspensions for four players, and probation for the 10th player.

The team threatened to keep their boycott in place, even if it meant forfeiting a trip to the upcoming Holiday Bowl.

Then KSTP, a local ABC affiliate, published the school’s 80-page investigation report and the police’s 23-page investigation report. This is not what normally happens in these situations. Reports like this are rarely, if ever, released because of federal privacy laws.

After reading the investigative reports, the “narrative” of the boycott changed, a source told the Star Tribune.

The alleged sexual assault

The 80-page school report contains a horrifying accusation of potential multiple rapes. The accuser herself seemed unsure of what exactly happened, and acknowledged that her memory was fuzzy not because she drank too much (she felt she wasn’t that inebriated by the time she began having sex with the players) but because of “shock, pain and fear,” according to the school’s report, which has redacted the names of the parties involved.

In the school’s report, the accuser says she felt pressured by the police into believing she had consensual sex with the first two men, when, according to her, she felt pressured into having sex and didn’t feel she could leave the apartment until doing so.

We also learned from the school’s report that many members of the football team belonged to a messaging group called the Empire. This group included first-year members of the football team and many of the suspended students. They would send messages to each other about bringing “hoes” to parties. While boorish, this is not in itself a crime.

Members of this group, however, did discuss the night of the alleged sexual assault. The first football player who had sex with the woman (Watchdog will not use the names of anyone involved, as they have not been charged with a crime), sent a message to the group saying he and another man were “finna double team this b****.” This same player kept sending the group messages about his encounter with the woman.

The school’s report also found “some evidence” that suggested those present during the alleged assault deleted relevant messages and videos.

As to the credibility of those involved, it appears as though at times the school weighed the credibility of what the accused said by comparing it to what the accuser alleged.

In one instance, multiple accused students said there was no crowd watching the sexual activity or turning the lights on or off. One accused student did say this occurred, and since it lined up with what the accuser said, it was given more credibility.

One thing of note from the school’s report is the accuser’s medical exam, which was conducted the day after the alleged assault. The medical professional found “some kind of injury” on the accuser’s genitals, which could have been the result of non-sexual activity (or rough consensual activity). The accuser reported to the school that the medical professional didn’t find anything “significant,” but would not provide the school with the results of her exam.

Just as police found the accuser was “lucid” during the night of the alleged attack, the school determined she had not been unable to consent due to alcohol (but earlier in the report stated she was in shock due to what was happening, which may have impaired her memory).

To be sure, the school’s report contains the accused students’ sides of the story. The first football player to have sex with the woman contradicted her claims that he removed her clothes or that she was fully clothed at one point while he and the other man in the room were naked. He said the three of them had been discussing having a threesome, and while the accuser didn’t explicitly say she wanted to, he believed she wanted to based on the conversation.

This football player said he remained in the living room as other football players came to the apartment. He said he didn’t hear any sounds coming from the room that indicated the accuser objected to sex. She had claimed she was shouting to the crowd that she didn’t want any more people to come in and that she “hated” them.

This football player also said that the accuser finally left the apartment at the same time as a couple other players, and was having a conversation as they left.

A 90-second video of the first sexual encounter also appears to back up the football player’s account, but the accuser would not allow the school to view the video. The accused players’ lawyer has the longer video and agreed to provide it to investigators with the accuser’s consent (because it shows her naked with the players). The accuser refused to consent, so the school accepted the police’s redacted version. 

The players’ accounts, however, did contradict each other’s at times. While the first football player to have sex with the woman said she left the apartment with several men while having a conversation with one of them, all of the men denied this.

The school report also ruled that the first accused player didn’t obtain “affirmative consent” for all sexual activity. Affirmative consent is a standard used in many schools that ostensibly requires both parties — although only accused students are held to this standard — to obtain permission for every aspect of sexual activity. In theory, it doesn’t sound so bad, but in practice, it makes no sense, as non-verbal communication can be ambiguous and no one has sex like a question-and-answer session.

The school’s determination of culpability for this student appears to have accepted the accuser’s version of events in total.

The police report includes what five of the accused players told police. It includes more details about their sides of the story than the school’s report, but uses the students’ actual names, whereas the redacted school report identifies them as A1, A2, etc. The school appears to have interviewed far more students, including all 12 of the original accused students (two were found by the university to have violated no campus codes) and 16 additional witnesses, some present the night of the encounter and some who were told about the encounter by others.

While the accuser claimed she felt pressured by police to say her encounter with the first two men “may have been consensual,” but that it really wasn’t, one of the witnesses who spoke to the accuser corroborated what the accuser told police. This witness told school investigators that the accuser “made it seem like [it] started out comfortable with two guys and then it got overwhelming” and that the accuser said she didn’t want to go to police “because she felt it was an in-between situation,” according to quotes from the witness included in the school report.

A swift end to the boycott

Still, in light of the new information, the football team ended its boycott. The players were heavily criticized for their press conference Thursday for taking what some considered a tone-deaf approach toward sexual assault. Wolitarsky, a senior on the team who has served as its spokesman, reread the statement from Thursday and made it clear he and the players do not condone sexual assault.

“Let me first state so there is no misperception: Sexual harassment and violence against women have no place on this campus, on our team, in our society and at no time is it ever condoned,” Wolitarsky said. “There is only one acceptable way to treat all women and all men, and that is with the utmost respect at all times.”

Some of the players’ parents urged them to end the boycott, as it could cost all of them their potential future careers in football. On Saturday morning, the team voted overwhelmingly to end the boycott, according to the Minneapolis Star Tribune.

The swift end to the boycott is reminiscent of an incident at Yale University, were basketball players protested the expulsion of the team’s captain by wearing T-shirts with “Yale” printed backward. After campus activists and media criticized the players, they apologized in a statement.

The official reports from the school and the police shed new light on the situation at Minnesota. No one can say for sure what happened in that apartment that night – how much, if any, was consensual or not. It’s important to remember that even consensual sexual activity can look bad when written a certain way.

But let’s assume the accuser’s account is wholly true and as terrifying as it reads. Expulsion doesn’t seem good enough in that case, as it would mean alleged rapists would be walking the streets. This case does, however, bolster every preconceived notion that campus activists seem to have: Football players are rapists and schools need to adjudicate sexual assault because the police won’t do anything.

One could argue that the police tried, but the video evidence and lack of other evidence would make it unlikely that a jury would find the men responsible. Schools have a lower standard of proof and aren’t required to follow the same procedures as a court of law or provide the accused with due process rights.

Even if all these players did what the accuser said they did, they still deserve due process.

University of Minnesota documents showing how investigators were trained, provided to Watchdog, show that school investigators were given highlights from a 2015 Association of American University study that misleadingly suggests a high rate of sexual assault on college campuses. The problem with these surveys is that they use broad definitions of assault, are self-reported, have a high nonresponse bias, and surveyed students don’t see themselves as victims, even though researchers classify them as such.

The training materials also strongly lean against allowing cross-examination, a key element of due process. Training for school investigators includes a slide about cross-examination, which states both parties must be allowed to cross-examine, “if at all,” and includes a bullet point noting that the Education Department “strongly discourages” schools from allowing students to personally question or cross-examine each other.

Due to the way school investigators are trained, it’s hard to be sure whether the players ever had a chance to be taken seriously. Police didn’t charge them, but the university found multiple students responsible for violating school policy. It’ll be difficult to accept either report.

And that’s the true complexity of these cases. Campus activists will accept the school’s report – with a lower burden of proof but more interviews – while advocates for the accused will rightly note that police and prosecutors wouldn’t press charges. It’s also important to remember that the accused students and the accuser had already settled the matter.

In the end, this case’s complexities once again show the difficulty of adjudicating sexual assault, especially in “he said, she said” situations. And again, even if these players really were responsible, they still deserved due process.

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Ashe Schow is Watchdog.org's Campus Culture reporter and also serves as a senior political columnist for the New York Observer. Previously, she was a reporter and columnist for the Washington Examiner.