Jessica Luther embarked on writing “Unsportsmanlike Conduct: College Football and the Politics of Rape” in 2014 after her favorite team, Florida State, was embroiled in scandal. The book was released in September and is suddenly very pertinent to what is going on at the University of Minnesota.
Luther, who is based in Austin, Texas, said during a phone interview Friday that the complicated situation playing out with the Gophers is both unusual in some ways and all-too-familiar in others.
Typically, Luther said, a school’s top administrators are reactive and not proactive. In the case of Minnesota, where an investigation by the school’s office of Equal Opportunity and Affirmative Action recommended sanctions against 10 players, officials acted on those recommendations by swiftly doling out suspensions.
“The actual suspension came from the top,” Luther said. “That’s weird. Most of the time they are reacting behind what is going on.”
Luther also said the subsequent boycott from other players over the suspensions is uncharted territory in this kind of case.
“It’s just very strange in that the players are being very public in their response to what has happened. We’ve never seen this kind of thing,” she said. “What’s very clear to me is that I don’t think the players have a good sense of what has happened or what the process is. That’s unsurprising even though I find it distressing. I don’t think most college students know about the criminal process or university process.”
The nature of the alleged incident itself, though, matches much of Luther’s research. She said upward of 40 percent of college football-related sexual assault incidents that are reported on in the media involve multiple members of a team.
Also familiar has been the lack of understanding of the distinction between a criminal investigation — one that resulted in no charges being filed by the Hennepin County Attorney’s office — and the University investigation that led to the 10 players being suspended.
The evidence needed by the attorney’s office is a higher bar than the evidence needed by the EOAA. In criminal court, it’s “beyond a reasonable doubt.” On campus, school officials must decide if it was “more likely than not” that an assault occurred.
“People conflate not having charges filed and not guilty. In this kind of case, most people are not comfortable with the grey of it. We will never know guilt or non-guilt through a court of law. That’s hard for us. We want an outcome. But that there is a parallel process that looks similar but is very different that plays out on the campus,” Luther said. “The EOAA is trying to decide if (the person) is safe enough to be on their campus. That’s much different than whether they will spend time in prison. That’s not to say it doesn’t have an impact on lives, but it’s fundamentally different. The EOAA is looking for a preponderance of evidence. That’s an important distinction, and I think people have a hard time with that.”
In regards to what appeared to be an important piece of evidence in the decision not to proceed with criminal charges — three separate videos of the night in question shot by one of the players and shown to police — Luther had concerns.
An officer wrote in a report that the alleged victim on the video “appears lucid, alert, somewhat playful and fully conscious; she does not appear to be objecting to anything at this time. After viewing two additional videos, he wrote “the sexual contact appears entirely consensual.”
“What exactly is on the video of and how does that match what she said? And we’re trusting the video of a person she said perpetrated a crime?” Luther said. “(The alleged victim) said she felt unsafe, which might not be obvious (on a video). One thing we know about this kind of gender violence is that the victim will go along with something they don’t feel comfortable with because they don’t feel like they can say no. So what would that look like on a video? It’s so much more complicated than what a video can capture most of the time.”