How SDSU Ended Up On The Sideline Of A Rape Investigation Into Its Football Team

By Andrea Lopez-Villafaña, the Voice of San Diego

October 6, 2022

San Diego State University President Adela de la Torre in an email to the student body this week marked the approaching one year mark of a rape accusation against members of the school’s football team that has for months sparked intense criticism of the university’s handling of the allegations.

The circumstances of the case, though, underline how the system that guides school investigations can stonewall complex cases. School officials have stressed that they did what was required of them. Those who’ve been critical of the school, though, wanted it to go beyond what was required.

In her Wednesday email to students and faculty, de la Torre said that waiting for the case to be resolved has been frustrating. “While this is typical for complex cases like this, which involve multiple individuals, the wait required by due process is still incredibly emotionally and physically taxing to so many of us,” she wrote.

A 17-year-old high school student’s allegation that football players raped her at a Halloween party near the university, which she then reported to the San Diego Police Department, first surfaced in June with an LA Times story. The university delayed launching an investigation at SDPD’s request. Sexual assault advocates, and media outlets have heavily scrutinized the university’s deference.

The school is now investigating – after SDPD gave it the green light to do so in July – though some feel it’s too late. De la Torre didn’t reveal much about the school’s investigation in her email, only that it is ongoing. She wrote she couldn’t speak about specific disciplinary actions but that the school had taken “multiple appropriate actions.”

SDSU offers three options for individuals subjected to sexual violence: they can file a report with police, file a complaint with the university or access support resources. An individual can choose all, some or none of those options.

But not all victims know of those options – especially those who aren’t university students. That fact has complicated the SDSU case, but here’s what we know about the ongoing investigation, and how it has unfolded over the last year.

It Was Never a Title IX Investigation

In May 2020, the Department of Education under the Trump administration released a new set of rules for how universities investigate sexual misconduct complaints under Title IX, which prohibits discrimination in federally funded education programs. It also requires schools to handle sexual assault investigations.

The new rules, which many advocates argued would make it harder for victims to report sexual abuse and harassment, established that the sexual assault must have happened on campus or related to an education program or activity for the university to launch a Title IX investigation.

The Biden administration is working to reverse those changes. But they haven’t changed yet, so under the current standard, SDSU could not have opened a Title IX investigation into the alleged rape, since it occurred off campus.

But that doesn’t mean the university was out of options. It could have chosen to investigate if there was a student conduct violation under the California State University systemwide policy for sexual misconduct. (That’s how the university is conducting the investigation now.)

The same office that handles Title IX cases handles student conduct violations of Cal State’s sexual misconduct policy. Unlike Title IX, though, Cal State gives individual schools more discretion to investigate – or not investigate – accusations against students, no matter where the incident happened. SDSU chose not to take this route.

The university argues it did not take this step when it first learned of the accusations last fall because San Diego police asked officials not to and because the woman requested confidentiality when she filed a police report.

A Confidential Victim

SDSU said the woman never filed a complaint with the university. That means the university’s investigating office could not directly contact her. They didn’t have her name or a direct contact.

However, the Los Angeles Times reported in July that the alleged victim’s father met with a campus police lieutenant, giving the university his daughter’s name and his phone number. The school later distinguished between a relative of the victim contacting university police, and a police report being filed with university police, the Union-Tribune reported.

But that’s not what technically stumped the school’s Title IX office from getting involved.

Under California law, victims can request confidentiality with police. The woman did that, campus officials say. That means neither SDPD nor university police could share her name with others – including with the university’s Title IX office.

“To request that they do otherwise would be to request they violate state law and go against the express wishes of the victim,” La Monica Everett-Haynes, a university spokeswoman, said.

Systems Require Certain Elements

To begin an investigation, the university needs a victim or witness to give a statement of what happened and the names of the individual or people accused. It’s illegal for a university to act on rumor alone, officials said.

The school follows a hearing model, in which an appointed authority listens to the evidence and claims, and determines guilt based on statements from the victim or witnesses, whether the accused student violated Cal State sexual misconduct policy.

“For a student to be found in violation of CSU policy, the fact finder must be convinced that there is a greater than 50 percent chance that a violation occurred,” a statement from the university reads.

That burden of proof is lower than in a criminal court, but reaching it is nonetheless difficult without participation from a victim and any witnesses, the university argues in its statement. The university can move forward without the victim, but it typically only does so when it has credible information about the identity of the victim and those accused. The student-athletes allegedly involved were provided by anonymous reports, but they were not confirmed to the university by witnesses. The school has said that police have never confirmed the names of the accused students.

The university’s Title IX office attempted unsuccessfully to connect with the victim through SDPD to inform her of the university process, school officials told Voice of San Diego.

‘What Did the Victim Want to Happen Here?’

Gail Mendez, director of the Center for Prevention of Harassment and Discrimination, and SDSU’s Title IX Coordinator, said that following a confirmation from SDPD that it was actively investigating the complaint, the university tried to connect with the woman multiple times.

“When it comes to addressing complaints of sexual violence, SDSU takes a survivor-centered approach,” Mendez said in a statement.

That approach focuses on empowering a survivor to make their own decisions based on their needs.

Amanda Walsh, deputy director of external affairs with the Victim Rights Law Center, a Massachusetts-based nonprofit that provides free legal services to sexual assault victims, said victims feel a loss of control and regaining that control is part of what justice could look like.

“Often when these things happen the public or others feel entitled to a level of information,” Walsh said. “In their mind the university is acting in a way to protect itself, and that might be true, but we also need to consider the victim’s goals.”

Victims should be entitled to choices – to participate, or not, in criminal and university investigations – and those choices shouldn’t be taken from them, Walsh said. Often the question people should consider is: “What did the victim want to happen here?”

She said the question about whether universities should cooperate with police when there are criminal investigations has been around forever.

“I don’t think it is for the public to decide or criticize whether or not the university should have moved forward, without a fuller understanding of the victim’s wishes,” Walsh said.

I asked Dan Gilleon, an attorney representing the woman, now 18, in a civil lawsuit against three former SDSU football players, if the woman wanted to purse a university investigation last fall.

“She didn’t even know what a university investigation was,” he said in a text. “She knew it had been reported. If they had contacted her, she would have cooperated.”

He added that, “as a 17-year-old high school student, she did not know about title IX, she didn’t know the school police were different than SDPD. She reported what happened and cooperated fully with whoever contacted her.”

Why the Messenger Matters

Walsh said it’s important for victims to be provided with all the options available. But who provides that information is often shared through a lens – not always to an investigation’s benefit.

“So often a victim’s choices are impacted by the messenger of those options,” Walsh said.

She said how SDPD provided the woman with information about the university’s administrative process matters. And providing that information to the women’s father when he visited campus police would have been crucial, too, she said.

“I would hope that when the father reported that all the options were afforded to him, and that was a choice that she was able to make,” Walsh said.

Gilleon said her father was not provided with information about the university’s administrative complaint process when he spoke to campus police.

When asked if the alleged victim’s father was provided with information about the university’s administrative process, Everett-Haynes said, “What I can share is that when victims come forward about a sexual assault that may involve a university student or employee, they are encouraged to contact the Title IX office. This is why the university attempted to connect with the victim directly.”

Gilleon said the university has contacted her in recent months, but she is not participating with their investigation at this point.

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