Title IX report finds MSU players not responsible of sex assault

Michigan State investigators have determined that three former basketball players were not responsible for allegedly sexually assaulting a female student in 2015, according to a Title IX investigation report issued Wednesday.

The woman, Bailey Kowalski, graduated from MSU in May, just weeks after she came forward publicly during a news conference. She alleged that in April 2015 she was drugged and gang-raped by three now-former Spartans basketball players. In April 2018, Kowalski filed a still-pending Title IX lawsuit against the university, which prompted the Title IX investigation. Kowalski never reported the alleged crime to police, saying in a previous interview with Outside the Lines that she had been afraid of getting in trouble for having a fake ID at the bar where she had met the players that night.

School investigators questioned Kowalski's credibility because she possibly misidentified one of the players she said took part in the alleged assault on the night of April 11, 2015, at an apartment of one of the players.

Two of the players Kowalski named in her interview told investigators that they had consensual sex with her that night, according to Michigan State's report. However, the players said the third man Kowalski had identified was actually someone else. The third player she had named denied being at the apartment that night.

The player the two teammates said was at the apartment did not respond to the investigator's attempts to reach him, according to the report. In an interview with Outside the Lines, Kowalski said it is possible she misidentified the third man, but that should not invalidate her account of what the other two did to her.

"I'm enraged because of the fact that they said they were there," Kowalski told Outside the Lines on Thursday. "It's not like my credibility is, like, 'Oh, she doesn't even know who did it.' Because two of them did say it was them."

Kowalski said she also is upset that investigators said in the report they were unable to interview the third player identified by the other two. She said she plans to appeal the findings and will file a report Friday with the Lansing Township Police.

Outside the Lines is not naming the players because the Title IX report has not been publicly released and their names have not appeared in a law enforcement or court record. Outside the Lines obtained and reviewed the Title IX report.

One player's attorney, Stu Shafer, said his client simply presented the truth.

"The burden of proof is so low in these kind of cases for a complainant to prevail. They just have to believe one side a little more than the other side," he said. "They couldn't even meet that low threshold."

Attorney John Shea, who represented the other player, said in a statement emailed to Outside the Lines that the report "reached the right conclusion."

"These are difficult times on college campuses when it comes to allegations of sexual misconduct. Such allegations should be taken seriously, and investigated appropriately, even, or especially, when it involves an athlete," he said. "That said, when a thorough investigation is undertaken and at the end of it an accusation is found to be unsubstantiated, as here, that finding should be accepted."

The other player Kowalski named, and the one identified by his two teammates, did not have attorneys listed in the report and did not respond to messages sent by Outside the Lines. An MSU spokeswoman said in an email Friday that because the case could still be appealed, school officials would decline comment.

The 39-page report concluded that a "preponderance of the evidence" did not support that the three players Kowalski originally named had violated university sexual misconduct policy. It did not list a finding for the other player.

The two players who acknowledged they were at the apartment told investigators that Kowalski willingly had oral and vaginal sex with them and verbally agreed to have a threesome, according to the report. Kowalski told the investigator she was forcibly pushed down on the bed on her stomach and was unable to move and cried and said "no" while the men sexually assaulted her.

The report states that one of the players said he and his teammate had "threesomes this way with women before and would never want anyone to do anything they did not want to do," and that being an athlete at MSU is a "slippery slope" so he is cautious and "always asks for consent."

Kowalski told the investigator she felt like she had been drugged, and had trouble manipulating her fingers on a laptop to choose a song earlier in the evening. But in part, the report states that because she was able to remember details of what happened during the assault, it's unlikely she was as incapacitated as she described.

The investigator concluded that even if Kowalski were incapacitated by drugs or alcohol, there was not enough evidence to show that the two players would have known; they told the investigator she could walk on her own and did not appear to be drunk.

"Very few facts are in agreement regarding what occurred ...," the report states. "These facts include what led up to sexual activity, the details of the sexual act, and the type of sexual intercourse."

Her case was investigated by employees within the Office of Civil Rights and Title IX Education and Compliance, which oversees Title IX investigations. The interim head of that office, Robert Kent, was one of the original attorneys representing MSU in Kowalski's Title IX lawsuit against the school. At MSU's request, the judge removed Kent from the lawsuit in June 2018, when he assumed his new position at the school. An MSU spokeswoman said Friday in an email that Kent had no influence over Kowalski's Title IX investigation.

The investigator wrote that she did not give "significant weight" to the players' credibility alone based on them telling a similar story because they "presumably stay in contact and may have conferred," but she did question Kowalski's credibility because of the possible misidentification of the third player.

The report states that while trauma can affect recollection of events, "the gaps in [Kowalski's] memory may have prevented her from having an accurate or complete recollection of potentially significant facts."

The report also notes Kowalski and one of her friends disagreed with the accuracy of the investigator's notes. Both women stated that a preliminary report -- given to the parties to review and respond to before investigators make findings -- included statements they claimed they had not made during their initial interviews.

The report states the investigator did not take into account any of Kowalski's medical records, which were also provided to Outside the Lines and showed that she told counselors about four years ago about being raped by MSU athletes. The report states that the records did not help "resolve factual disputes" among the parties.

And the investigator did not accept as evidence results of a polygraph test Shafer submitted on behalf of his client, whom Shafer said passed the test. Outside the Lines was sent a copy of that test. The report states that it was policy not to consider "statements of personal opinion or statements as to any party's general reputation for any character trait, including honesty."

The investigator also discounted a statement from a woman, Andrea Bender, about men involved in the Kowalski incident. Bender, who spoke to Outside the Lines and gave permission for the use of her name, said one of the two players who says he had sex with Kowalski had, in the fall of 2015, pulled Bender into a room and grabbed her to get on top of him, but Bender said she pulled away and left. The report states that Bender "did not provide any information that she was incapacitated, offended by the solicitation, or forced into sexual activity against her will," and that the information was not relevant to Kowalski's case.

Bender, who was not an MSU student, also told Outside the Lines that she told the investigator she had been raped in the summer of 2015 by the third player identified by the two players who acknowledged having sex with Kowalski. The report makes no mention of that allegation, which Bender says she never reported to police.

Bender said she reached out to Kowalski's attorney in spring 2018 after she read about Kowalski's lawsuit because she said her story sounded so similar and she wanted to help.

Kowalski told Outside the Lines that other women have reached out to her or her attorney with allegations against Michigan State athletes. Outside the Lines spoke to one of those women who said she was raped in 2016 by three basketball players and that another one had recorded the sexual act. Outside the Lines interviewed a family friend of the woman, who said the woman told her and her husband what had happened the next day, and the friend then took the woman to the hospital. The woman, who wished to remain anonymous, said she never reported the incident to police or MSU officials, because she said she feared retaliation.

Kowalski said it's because of other women that she's going to continue to push her case. "I'm seeing this through to make sure that those who need to be held accountable are held accountable," she said.