This is a story of a rape accusation that would not die and a misshapen version of college justice meted out in three chapters.
Let’s begin with two Michigan State students looking to hook up in March 2015, mess around and perhaps have sex. Soon after, the woman accuses the man, Keith Mumphery, who would become a pro football receiver, of sexual assault in her dorm room.
The police investigate. Mumphery turns over the text messages from his phone and provides a DNA swab. Prosecutors conduct interviews. The accuser does not return calls. They decline to prosecute.
So ends Chapter 1.
Michigan State’s Title IX office, which investigates accusations of sexual harassment and violence and adheres to a significantly looser standard of evidence than in criminal cases, examines the texts and interviews friends and a nursing supervisor who oversaw the exam of the woman. Mumphery is not allowed to question his accuser. The panel clears him.
So ends Chapter 2.
The woman appeals that finding. (Unlike in criminal cases, where acquitted defendants cannot be retried, in Title IX cases, accusers may appeal.) Michigan State reopens the case.
The university sends an email to Mumphery at an address he no longer looks at. He knows nothing of the appeal. This time, Michigan State holds him responsible for relationship violence and sexual misconduct.
So ends Chapter 3.
Now we turn to the consequences. In May 2017, The Detroit Free Press reports that Mumphery, a receiver for the Houston Texans and a graduate student at Michigan State, was expelled by the university because of a sexual assault. Two days later, after practice, the Texans’ coach calls him into the office: Keith, this case is a problem and we’re letting you go. Mumphery drives home to Vienna, Ga., which has a diner, fast-food joints, a single motel behind the gas station and a streetlight. He wonders what has become of his life.
Accusations of sexual assault offer perilous waters in which to swim as a reporter, an investigator, a lawyer.
Sexually charged texts and a photograph, which exist in this case, can establish flirtation but do not speak to consent — the woman claims in her own lawsuit and in police reports that she was very drunk and had consumed well in excess of a dozen shots of vodka before Mumphery arrived. She insisted she could not agree to have sex. Mumphery disputes that the woman was drunk. A police report states that surveillance videos show her walking “with a steady gait” and with no trouble keeping her balance. Mumphery says that she opposed his use of a condom and that they did not have sex. The woman says she has been traumatized.
What is clear is that the consequences for Mumphery of this broken process are perilously close to that of a criminal conviction. Mumphery is boxed in a societal cell. He has not gotten a tryout with another N.F.L. team, and at 25 he sees his prime earning years as an athlete slipping by. He was an honor roll student and class president with a 1240 SAT score at his high school, and with this mark on his record, he is unlikely to gain admittance to another graduate program.
And people read that he was responsible for sexual violence and view him as a rapist.
I traveled to Vienna, in southern Georgia, to talk with him. “I knew I was going to college and maybe to the pros,” he says. “Always. Dream big. When I found out about this, it hurt. I was crying like a baby. A baby.”
His lawyer, Andrew T. Miltenberg, who has defended students in many high profile Title IX cases, is fierce and eloquent on the procedural flaws and missteps of the Michigan State investigation, and of the larger problems presented by the lack of safeguards. Mumphery last week filed a suit against the university, charging that it denied him due process and wrecked his football career.
Judges often ask, well, how can you prove future financial damage to a client who is, after all, still a student? “What makes this fiasco at M.S.U. so unique is that this terrible process has reached into the N.F.L. and destroyed the career of someone who was near the pinnacle of his profession,” Miltenberg says.
This is not an outtake from a bad men’s rights movie. Civil libertarians and legal scholars, including those with impeccable feminist credentials, have challenged the lack of due process in these Title IX proceedings, particularly for the accused. Twenty-eight members of the Harvard Law faculty, including prominent female and male liberal professors, recently signed an open letter in The Boston Globe.
Their letter read: “Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused and are in no way required by Title IX law.”
Nearly every detail of that bill of indictment could apply to Michigan State.
Much blame resides with a 2011 directive from the Obama administration’s Department of Education, which was sent to thousands of schools that receive federal funds. This “Dear Colleague letter,” as it is known, was no doubt well intentioned. Sexual assault on campuses is real, women are hurt, embarrassed and reluctant to step forward, and historically too many universities shrugged off the terrible as “kids will be kids.”
Before the arrival of that letter, many colleges used “clear and convincing” as a standard of proof in in-house investigations of sexual assault and harassment. A few, such as Stanford University, applied the criminal standard of “beyond a reasonable doubt.”
This federal letter set a new and lenient standard for schools of “more likely than not.” Many universities quickly adopted that policy. So with a casual shrug of the bureaucratic shoulders, a chasm opened beneath the feet of the accused.
That letter pushed school administrators to complete investigations quickly, preferably in no more than 60 days. It required universities to let accusers appeal findings of no guilt, which created double jeopardy for the accused. And it discouraged universities from giving the accused the right to cross-examine accusers.
It’s difficult to overstate the extent to which this flipped fundamental concepts of fairness. The right to cross-examine an accuser is a bedrock constitutional protection. In a 1988 Supreme Court decision, Justice Antonin Scalia was joined by the court’s liberal wing in reversing a conviction in a case in which an accused could not see a person testifying against him. “It is difficult,” Scalia wrote, “to imagine a more obvious or damaging violation of the defendant’s rights.”
He noted that the right to confront witnesses could cause pain, not the least in cases of child abuse and rape. But, he said, “it is a truism that constitutional protections have costs.”
I called Sheri Lynn Johnson, a professor at Cornell Law School and a founder of the university’s Death Penalty Project. She helped write an amicus brief signed by many fellow professors on behalf of a student suing Cornell over a Title IX case in which he was denied the right to submit questions to his accuser. “There is no due process right like you have in a criminal case, even though the consequences can be very similar and dire,” Johnson said.
Michigan State has many headaches. In January, its president, Lou Anna Simon, resigned amid much criticism of how she handled the huge sexual abuse scandal involving Lawrence G. Nassar, who is now serving what will most likely be a life sentence after pleading guilty to molesting athletes while at Michigan State and while serving as the team doctor for U.S.A. Gymnastics. When I called, a spokeswoman said the university would respond only to emailed questions.
I sent a list of questions, several of which went to policy. The university did not answer most of these questions, although Emily Guerrant, its vice president and spokeswoman, wrote that it was Michigan State’s “policy that a student would be notified when a case is reopened.”
A report filed by the Michigan State University Police in June 2016 and obtained by The New York Times through a freedom of information request stated: “It should be noted that although this letter was mailed to him, at this time it cannot be confirmed that he actually received the letter nor has he been served in person.”
So I asked again: Did Michigan State ever reach Mumphery to let him know that he was being investigated again? He was, after all, playing with the Houston Texans and not backpacking through the Himalayas. He was easy to find.
Guerrant declined to comment, citing student privacy. I twice asked her to identify the specific Title IX wording that prevented the university from saying that it had complied with federal rules to notify students. I’m still waiting for her reply.
I called Karen Truszkowski, who represents the woman who says that Mumphery sexually assaulted her. Her client is not happy with the way the university handled the case, and she has sued Michigan State.
Truszkowski represents many young women in sexual assault cases and sees the complications with this aspect of Title IX, not the least with due process.
“Do some guys probably get caught in this net?” she said. “Yes, probably they do.”
She counterposed a question. What if the university did not investigate such cases? “A lot of these cases are never prosecuted because law enforcement does not feel they can meet a burden of proof,” she said. “There is egregious behavior. Something happened.”
That’s a fair point. In legal terms, I’d heed another Justice, Felix Frankfurter, who wrote: “The history of liberty has largely been the history of the observance of procedural safeguards.”
In more personal terms, Mumphery offers a pretty good personification of what happens when a jury-rigged system breaks down. He runs through the streets of his hometown each morning, pulling an iron sled to stay in shape. His mother was poor, and when the family ran out of water, he and his siblings filled buckets with it at the gas station and toted them home.
His mother lives in a trailer. He amassed excellent grades and excelled in sports. None of this inoculates him against the terrible vagaries of human nature. I can’t say what happened in that dorm room on that early evening in March 2015.
I know only this. A prosecutor decided not to bring charges, and a university investigation found Mumphery was not responsible. The only investigation that found him guilty did so apparently without his knowledge and without his offering a defense.
That’s not a good definition of liberty.
Read more at: https://www.nytimes.com/2018/05/30/sports/keith-mumphery-michigan-state.html?rref=collection%2Fsectioncollection%2Fsports&action=click&contentCollection=sports®ion=rank&module=package&version=highlights&contentPlacement=2&pgtype=sectionfront