Experts question lack of action on alleged MSU sexual assault

Local legal and sexual assault experts are weighing in on all of the publicly available evidence in the alleged sexual assault of a coed by two members of the Michigan State University basketball team, with a majority criticizing the decision not to bring charges or at least investigate the accusations deeper.

The story of that alleged assault, after which the police recommended charges of Criminal Sexual Conduct 1 but the District Attorney decided not to issue an arrest warrant or bring charges, has divided the MSU community. The sides are lining up, with one side supporting Ingham County Prosecutor Stuart Dunnings III’s decision not to issue charges in the case, and the other arguing that the documents available indicate a crime was likely committed and that Dunnings should prosecute.

After the Messenger made the police report available to the public to view, Dunnings then released, over the course of several days, the transcripts of the police interviews with one of the accused assailants and the alleged victim. In a letter accompanying those transcripts, Dunnings said he concluded that “no crime” had been committed.

Dunnings has not responded to numerous requests for further comment.

Michigan Messenger provided those documents to outside experts — including a former Ingham County prosecutor, a defense attorney and a nationally recognized expert in sexual assault investigation and prosecution. Each was asked to evaluate the evidence and the testimony and provide their opinion on whether they believe under Michigan law a crime was committed, and if so what crime. They were also asked to share their thoughts on why a prosecutor might decline to prosecute this case.

The former prosecutor is Thomas Rasmusson, a professor at Cooley Law School in Lansing and a former Ingham County assistant prosecutor as well as a former attorney in the Reagan Department of Justice.

The defense attorney is Joshua Moore, who runs Detroit Legal Services in Detroit where he handles both civil and criminal cases.

Rounding out the panel is Steve Thompson, the director of the sexual violence prevention program at Central Michigan University. Thompson has trained thousands of police, lawyers and students about Michigan’s criminal sexual conduct laws, the concepts of consent and what constitutes sexual violence. He is also an approved presenter and trainer on these issues for the NCAA, so his perspective is particularly germane to a case that involves college athletes.

Those experts were divided in their views. Rasmusson said the testimony of the victim raised certain “red flags that make me worry about the allegations.” He was not specific about the items that raised those concerns, saying, “I do not want to embarrass [the alleged victim],” but he said they involved “certain details and absence of details” and “circumstances leading up to the events” that would make him worry about getting a conviction in the case.

The bottom line, he said: “It is unlikely I would authorize a warrant without more.”

But Moore and Thompson had opposite reactions.

“I do not understand why the prosecutor chose to say that ‘no crime’ happened. It is very clear to me that, at the very least, this should have been investigated more,” Thompson said. “In the police interview with one of the suspects, the suspect clearly indicated coercion and lack of consent. The survivor’s behavior after the assault indicated physical and emotional trauma that is not associated with consent. If this is not a crime, I do not know what is.”

Thompson said after reading the interview with the victim he felt even more strongly that a crime was committed.

“She indicated several times that she did not want to engage in the behavior,” he said. “In sexual assault one does not have to scream and resist in order to prove lack of consent. The presence of intimidating force resulting in submission and compliance was evident to me.”

Defense attorney Joshua Moore says, at the very least, more investigation by the DA’s office was needed before reaching the conclusion that no crime was committed.

“While there is no evidence per se of crime committed from the statements of the interviewee, there are definitely indications that a crime could have been committed (probable cause) and additional evidence and/or investigation would be warranted,” Moore said. “There is corroboration of the alleged victim’s statement that there was, at minimum, statements that the alleged victim asked the alleged perpetrators to ‘stop’ at some point.”

Moore says there was “most certainly be probable cause to issue first degree criminal sexual conduct charges” under Michigan law because there was “no evidence from the interviewee’s statement to discredit and/or invalidate the alleged victim’s statement.”

Both Moore and Rasmusson raised questions about the depth of the police interview with the one accused player who agreed to speak with police.

“The questioning of them was not highly detailed, but I do not know the circumstances of the interrogation,” Rasmusson said.

“The police interview was clearly lacking in its effectiveness,” Moore said. “There was a definite lack of specifics asked by the police. They allowed the interviewee to ramble on long narratives without any follow up and specific question follow ups.”

Moore noted that at many points in the interview the suspect responded “whatever” to describe the situation without any followup questioning, which he said is an attempt “to avoid uncomfortable specifics about the incident.”

“The police interviewers needed to specifically do follow up questions to establish what was said and done during the onset of sexual activity between the parties,” Moore said.

In light of some of the ambiguities in the testimony of the victim and the suspect, Moore said more investigation should have been done by the DA’s office. What they ended up with, he said, was a “rushed investigation that was completed in a very short amount of time and inconsistent with the prosecutor’s statements.”

Thompson, the sexual violence expert, disagrees.

“The police did an excellent job with the interview. They asked the same question several times, in a variety of ways to get the perp to explain how he felt the survivor was coerced. To me, the police established the criteria necessary to charge someone with CSC. I felt that the interviewers knew that as well,” Thompson said.

All of this then leaves the question about why Dunnings didn’t authorize more investigation into the incident, if not bring charges.

“The cynical side of me says it is because they need a slam dunk conviction so that their record looks good. The realistic side would agree with the cynical side but add the caveat that many prosecutors simply do not understand this crime and how to prosecute it,” Thompson said.

Moore agreed. “In a region such as Lansing where Michigan State basketball players are treated like superstars, then presumably and naturally there would be a heavy political toll on any prosecutor making criminal charges against them,” he said. “The high profile nature of this case would be a factor for any prosecutor making such a decision and I would only conclude that undoubtedly the prosecutor would want to make sure he could in fact secure a conviction if he was to bring charges in the instant case.”

Moore did say, however, that consideration of the likelihood of a conviction as a factor would be “a very small one if the prosecutor believed a crime had been committed.”

But Rasmusson says Dunnings’ decision not to prosecute was a reasonable one.

“As an assistant prosecutor, I asked myself three questions,” he said. “(A) do I believe an offense occurred, (B) is there proof beyond a reasonable doubt and (C) does public policy require a prosecution. A warrant can be authorized on probable cause, but most prosecutors want to see the proofs are there to prove the case beyond a reasonable doubt.”

Thompson was adamant that all of the elements were there to charge the suspects with sexual assault, drawing an analogy in the process.

“If two large men cornered me and told me to give them my wallet you can bet I would,” he said. “Would the burden be on me to prove that I felt they would hurt me if I didn’t, or is the burden on them for initiating the behavior? To me the survivor in this case was not willing. She was incapacitated due to the alcohol and physically helpless because of the circumstances with two large individuals who were aggressively coercing her to do what they wanted. Don’t really know what more a prosecutor would need. To me, the only reason to not proceed would be if the survivor does not want to.”

Dunnings originally told the Michigan Messenger that the decision not to prosecute was a “mutual decision” between the victim and his office, but the young woman at the center of all this controversy disputes that conclusion. She says she was told by the office that they weren’t going to prosecute because they didn’t think they could convince 12 jurors to convict and that she was never asked if she wanted to go forward with the case.

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