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4/3/11 Sacramento Bee (Pg. Unavail. Online)

2011 WLNR 6424347

 

Sacramento Bee, The (CA)

Copyright 2011 McClatchy-Tribune Information Services

 

April 3, 2011

 

University of the Pacific  rape  cases have links

Marjie Lundstrom and Denny Walsh

 

Officially, University of the Pacific in Stockton won the lawsuit and declared itself vindicated.

 

Unofficially, there appears to be no winner in the case of Jane Doe v. UOP.

 

Newly released records in Sacramento federal court reveal the complex and bitter story of a young woman who sued the Stockton school after she was sexually assaulted in campus housing.

 

The once-secret records reveal the sometimes wrenching details of the university's investigation into rape, how life changed for the victim and why she chose to leave the school that recruited her to play basketball.

 

U.S. District Judge Frank C. Damrell Jr. ruled she failed to prove her allegations that the private university had been indifferent to her sexual assault or had retaliated against her, as outlawed by Title IX of the U.S. Code.

 

The more than 1,196 pages of unsealed records show how the young woman from Colorado believed UOP let her down, making her feel unsafe and unwelcome after the attack became known. Meanwhile, the university is seen grappling with how to protect itself, its image and its students in the face of multiple on-campus rape allegations, the documents show.

 

The lawsuit stemmed from a May 10, 2008, incident involving three male basketball players, which a university judicial panel later determined to be a sexual assault of Jane Doe.

 

While university officials repeatedly have stated that they followed "best practices" in handling Jane Doe's case, the records reveal that UOP acknowledged it engaged in "victim bashing" to defend itself and to protect the "fair procedure rights" of the assailants.

 

In September, Damrell granted UOP's motion for summary judgment, denying Jane Doe a trial. She is appealing.

 

Despite the courtroom win, the private university lost its bid to keep the case from public view. Until late last year, Jane Doe's lawsuit essentially had been litigated in private after Damrell took the unusual step of sealing almost the entire file, mainly because UOP wanted it that way.

 

In November, The Bee documented the secrecy, and in December the judge ordered the records be opened, but only after student names and identifying data, as well as graphic details of the assault, were removed.

 

Jane Doe, brought to the university in 2007 on full scholarship, portrays UOP in court documents as insensitive - bordering on vindictive - toward a rape victim. The university, meanwhile, tars Jane Doe as a freshman who over-imbibed one night and invited trouble with her flirtations, then made unreasonable demands on her school.

 

Court records also show how fears of being accused of racial profiling influenced UOP police in dealing with both the sexual assault on Jane Doe and another reported rape a month earlier in the same campus housing complex. Opposing views

 

For Jane Doe the bottom line was this: Only one of her attackers was expelled (and went on to play basketball on scholarship at another school). One was suspended for a semester and one was suspended for two semesters. The two who returned to play ball at UOP were required to complete training in substance abuse and sexual assault awareness.

 

When Jane Doe, who says in the documents she fears her three assailants, learned she would have to share not only the 4,500-student campus, but athletic facilities with two of them when they returned from suspensions, she formally withdrew from the school.

 

In October 2008, she emailed her coach a farewell: "I have tried all along to do the right thing and cooperate with the University and their hearings process, but never have I felt so let down.   The ordeal that I was put through was terrible  They (university officials) could've done the right thing so many times, but blatantly chose not to."

 

"The bad guys won," she wrote.

 

The university and the judge took a different view.

 

"The facts show, according to the judge, that the University took this matter very seriously, provided full support to the victim, investigated, held hearings and disciplined three student-athletes," according to a statement from UOP.

 

"These facts have been clearly established and upheld by a federal court, proving the University handled this incident well." Investigating a claim

 

Like many colleges and universities, UOP turned Jane Doe's case over to a judicial review board (three students, a faculty member and an administrator) to determine whether the student code of conduct had been violated and, if so, the penalties.

 

In court records, UOP said the judicial review board worked tirelessly to reach its decision, deliberating for more than 10 hours before determining there had been a sexual assault and how to discipline the assailants.

 

Elizabeth Griego , UOP's vice president of student life, said that the matter was best handled by Stockton police, but that Jane Doe did not pursue criminal charges, according to court records. The gravity of the allegations compelled the university to convene the board, Griego said.

 

Jane Doe decided not to seek criminal prosecution after a Stockton police detective laid out the potential ordeal that awaited her, including "every aspect of (her) personal life" being explored and facing her assailants in court, documents show.

 

Court records reveal that the initial show of support for Jane Doe degenerated into what one of her attorneys, Colorado-based John Clune , described as a "victim-blaming bent" by some officials.

 

UOP attorney Janine Simerly told the judge in September that Jane Doe "did not try to leave. She wasn't restrained. These two guys, they had been drinking as well."

 

"I know, this is victim-bashing," Simerly said, "  but it's also the defense of these (male) students.   The university has to walk a very delicate tightrope, Your Honor." Leads not pursued

 

In deciding the lawsuit, Damrell was not satisfied with Jane Doe's argument that UOP could have prevented her assault had it pursued another on-campus rape claim a month earlier.

 

Another young woman reported to the Stockton Police Department in April 2008 that she was raped in the same student-housing complex. She was treated at a Stockton hospital, which collected DNA evidence, court records show.

 

Stockton police said they were not pursuing the matter because Former Student - as she is referred to in court papers - became uncooperative, according to court documents from the Jane Doe lawsuit.

 

Neither did UOP pursue promising leads from that reported rape.

 

Yet, according to Jane Doe's pretrial deposition, both Griego and Heather Dunn Carlton , the university's judicial affairs director, had stated "numerous times" that there was "a very clear connection" between her rape on May 10, 2008, and that of Former Student on April 6, 2008.

 

Carlton was more specific, testifying during her own deposition that Former Student identified Jane Doe's assailants as being present when Former Student was assaulted.

 

By the time UOP was seeking summary judgment, the school took the opposite stand: "To this day it is uncertain whether there is any connection between that (April 2008) incident and plaintiff's assault."

 

Documents show sometimes muddled accounts by Former Student, but from the start, the description she gave police of two men present during her assault resembled two of the men accused by Jane Doe - with one exception. Former Student estimated the height of one of the men as 6-foot-3. Jane Doe's attacker is 6-foot-8.

 

UOP police arranged a photo lineup in July 2008, from which Former Student identified two of Jane Doe's assailants as having been present during her sexual assault.

 

She told the sergeant conducting the lineup that she knew one of the men because he had dated a friend of hers, according to the officer's report. After her rape she saw photos of both men online among those of UOP basketball players, she said.

 

Neither student was interviewed in connection with Former Student's rape, the documents indicate.

 

By the time of the lineup, the judicial board had ruled in Jane Doe's case. Avoiding accusation

 

Michael Belcher , UOP director of public safety, said in his pretrial deposition he was struck early on by the similarity of the suspects' descriptions and the circumstances in the two cases. Based on all the evidence known to him at the time, Belcher testified he had a "gut feeling" that the rape of Former Student may have taken place in the campus apartment occupied by the 6-foot-8 player who was later suspended in the Jane Doe case.

 

But Belcher did not act on his suspicion and question the player, he testified, because he didn't want to be accused of racial profiling. The assailants in both cases are African American.

 

Jane Doe attorney Clune asked Belcher if he still had "a concern that you might have a sex offender on campus, since you hadn't caught anybody?"

 

"It was a potential, yes," Belcher replied.

 

But, he said, "I have had experiences in the past with my officers being accused of profiling. And with very limited information, I was treading on some difficult issues if I was to go in there and start making accusations."

 

Doe attorney Jacqueline Scott Corley argued in a hearing before Damrell that, at the very least, the 6-foot-8 student should have been asked where he was on the April night that Former Student says she was assaulted.

 

"That one question   very well may have prevented what happened on May 10, 2008," Scott Corley said. "There's no racial profiling, none of that. That is simply asking a question rather than throwing up your hands."

 

The university argued in court papers, "Any attempt to link plaintiff's assailants to the Former Student assault   would have been based on nothing but the color of their skin."

 

The judge agreed.

 

"You keep saying he matched the description," Damrell told Jane Doe's attorney at oral arguments. "Apparently he didn't. He didn't. He clearly didn't. He wasn't 6-3, right? He was 6-8."

 

None of Jane Doe's three assailants was charged with a crime. Two have gone on to play professional basketball in Europe.

 

Jane Doe's opening appellate brief is due Monday at the 9th U.S. Circuit Court of Appeals in San Francisco.

 

Clune said his client is back in school elsewhere but no longer plays college basketball.

 

When she severed her ties to UOP, her former coach offered her some advice: "Don't look back," wrote UOP women's coach Lynne Roberts in an Oct. 30, 2008, email. "Hold your chin up and know that you faced a dark hour and, whether you believe it or not right now, you prevailed."

 

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