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College athletes can avoid kangaroo courts more easily if they avoid risky sex

Learn a lesson from a fallen businessman

Rather than suggest a must-read book for our audience in this gift-giving season, I’d like to suggest something that might shine a different light on the issue of sexual assault allegations on campus.

The current season of StartUp, the flagship podcast of the Gimlet Media network founded by This American Life alum Alex Blumberg, is a deeply reported dive into the rise, fall and resurrection of Dov Charney, the 47-year-old ousted founder of American Apparel.

If you don’t recognize his name, you’ve probably seen the ads he designed featuring scantily clad women, sometimes in overtly sexual positions and not always “clad” at all. They frequently graced the back page of my local alternative weeklies in Seattle when Charney still ran the company.

He also loudly proclaimed the righteousness of his business because it paid above-market wages to its textile workers in Los Angeles and advocated comprehensive immigration reform – “Legalize LA,” as the campaign was known. (Many of his workers were deported after an audit.)

But his undoing two-and-a-half years ago, when the board fired him, seems largely attributable to Charney’s reckless sexual behavior.

He frequently slept with his own employees, many of them young women without much career experience, and masturbated in front of a female reporter (the podcast is worth hearing just for the interview with his crisis PR guy in episode eight).

Unsurprisingly, he got sued on allegations of sexual harassment. The company said in court papers last year his unhinged sexual behavior cost it “$8.2 million in insured litigation costs and $1.2 million in uninsured costs,” according to CNBC.

I find myself thinking this season’s podcast should be made into a movie. Charney is insanely charismatic and engrossing, and that’s just based on his audio interviews. He’s the Jewish Californian Wolf of Wall Street.

He never regrets or apologizes for his sexual conduct throughout his emotional roller coaster of interviews with StartUp host Lisa Chow, as she follows him around LA for his post-AA second act in the clothing business. He denies all allegations, and much of it does sound he-said, she-said.

Some of his former employees who admitted to sleeping with him when they were young and impressionable, in their interviews, can’t bring themselves to regret it either. Why restrain your sexuality if you enjoy it? What difference does it make that he’s your boss? We’re all adults, right?

A mess of contrasting claims

The swift collapse of the boycott led by the University of Minnesota football team reminds me of Charney’s collapse.

Ten players were suspended – and five of those further recommended for expulsion – following sexual assault allegations against some of them by a single woman based on one night’s events.

They gave police videos of the sexual encounter that turned out to be exculpatory, showing that the sexual contact was not “unwelcome or nonconsensual” for the accuser, as Ashe Schow at Watchdog.org reported. None was charged.

Then a local TV station somehow got the school’s original and “confidential” 80-page investigative report (redacted by the station), and also published the 23-page report by police.

As Schow notes in a followup story, “This is not what normally happens in these situations. Reports like this are rarely, if ever, released because of federal privacy laws.”

Someone clearly wanted to get leverage over the boycotting players, obliterating the perennial and convenient excuse by universities that they can’t share pertinent details because they could lose their federal funding, not because those details might show biased proceedings against the accused.

And it worked. The Minneapolis Star Tribune reported that the details in the confidential report, which were new to the players, got them to turn on each other over the weekend:

“Once they read the report,” one source said, the “narrative” of the boycott changed.

Facing heavy national criticism, the Gophers players knew they were losing negotiating leverage. …

With the team at an impasse, one of the 10 suspended players spoke up in a meeting. According to one source, the suspended player said, “We appreciate all of you for standing up for us, and we still feel like we’ve been wronged [by the university]. But we don’t want 102 [players] to take the fall for us five.”

Schow has actually read through that confidential report, and she finds it to be a mess of contrasting claims, both between accuser and players and among the players.

The accuser refused to turn over her medical exam to the school, which seemed inconclusive as to whether she had been raped. She admitted she wasn’t incapacitated by alcohol, but explained her memory loss by the “shock” of the sexual situation.

She also wouldn’t let the school see a 90-second video provided by the players’ lawyer that had proven convincing to police. The university found the first accused student had not obtained affirmative consent for the totality of sexual activity, and it “appears to have accepted the accuser’s version of events in total” for that accused student, Schow says:

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.

Schow notes that the university’s process for adjudicating sexual assault allegations leaves much to be desired, regardless of any player’s individual culpability:

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. …

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.

It’s not ‘victim blaming’ to recognize dangerous situations

I’ll go out on a limb and say the investigation was biased against the players from the start.

For one, they are all black, as noted by Reason‘s Robby Soave, and men of color are disproportionately targeted with sexual-assault allegations.

The affirmative-consent standard is also designed specifically to make accused students prove their innocence – an impossible task because accusers can always say later they didn’t want sex (or couldn’t consent) even when their contemporaneous actions are clear.

And obviously, the school would have been dealing with a PR nightmare if it had cast any doubt on the accuser’s claims.

But like Dov Charney, the players who participated in this group sex encounter brought the hurt on themselves and their teammates regardless of their culpability.

When you have sex with someone outside of a committed relationship, you don’t recognize their nonverbal cues and you may not even know how mentally stable they are. There is no context for anything that is happening, and you almost certainly bring different expectations to the encounter.

Add multiple partners to the equation and the encounter becomes exponentially more confusing and potentially more traumatic. If it wasn’t an issue before, power imbalance is definitely an issue in a multiple-on-one setting.

These players recklessly put themselves into a situation where they know the facts cannot be reliably adjudicated. They surely knew when this happened – just a few months ago – that if the woman complained, they would be at the mercy of an institution that has deep incentives to punish any allegation, regardless of how thin.

The consequences of their decision to recklessly engage in sex should give pause to all athletes who think to themselves, Hey, we’re all adults, right? What’s the harm?

Unlike Charney, they may not be charismatic and driven enough to have a second act.

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About the Author
Associate Editor
Greg Piper served as associate editor of The College Fix from 2014 to 2021.