A high-school student, then 17 years old, reported last fall that she was raped by San Diego State University football players. The university did not investigate or inform the campus community for months.
Over the past several weeks, San Diego State’s president, Adela de la Torre, has defended that decision as media attention has grown and critics have argued that the university swept the case under the rug. De la Torre cited a letter from the San Diego Police Department, dated October 28, 2021, in which law-enforcement officials ask that “SDSU temporarily delays” its inquiry into the incident “given the early investigative stage.” Last month, the local police finally turned the criminal investigation over to the San Diego district attorney’s office.
Colleges are being told: “If you try to get information, it can imperil our criminal investigation.”
In an address to student leaders last week, de la Torre said that she “would not be honest” if she said she would change anything about how the university handled the assault accusations. The university did all it could to not compromise the criminal investigation, she said.
“Unequivocally, it was the right decision,” de la Torre said.
The Chronicle spoke with victims’ advocates, Title IX scholars, and lawyers about whether San Diego State erred in its handling of the case. They said it’s common for colleges to temporarily hold off on a campus investigation or disciplinary action if law-enforcement officials ask them to — though the delay usually lasts days or weeks, not months. But in this case, experts said, the university’s decisions weren’t cut-and-dried.
Some placed the blame on the police, wondering why the criminal investigation took a full academic year to complete, with no arrests or charges to date. Others wondered how the university justified waiting the full period of the criminal investigation before taking action. One scholar questioned whether there is some key piece of information that the district attorney is withholding that further complicates the picture.
The high-school student, who goes by Jane Doe, filed a civil suit last month against three men whom she says assaulted her: Matthew R. Araiza, Zavier Leonard, and Nowlin (Pa’a) Ewaliko. All three played football for San Diego State last season. By the time Doe sued and the university began its investigation, one of the students had already graduated. In fact, Araiza, known by the nickname “Punt God” to some sports fans, was drafted into the National Football League. The lawsuit, the university said, was the first time campus officials learned the names of the accused men.
Neither Leonard nor Ewaliko’s lawyers returned calls or emails requesting comment. Araiza’s lawyer, Kerry L. Armstrong, wrote in an emailed statement that the accusations are “blatantly false.” He said Araiza was not informed of the police investigation until late July this year.
After Doe filed the civil lawsuit, the Buffalo Bills, who had drafted Araiza, released him. Leonard, who had been on the university’s 2022-23 football roster, also appears to have been dropped, according to The San Diego Union-Tribune. Ewaliko was not on the roster.
No Timeline
Current federal Title IX regulations, finalized during the Trump administration, don’t give colleges an exact timeline of what they should do internally when criminal cases involving students are underway.
In a since-rescinded “Dear Colleague” letter from the Obama administration’s Office for Civil Rights — which became the foundation for many campus sexual-misconduct policies — the then-assistant secretary in that office, wrote that while colleges may temporarily delay taking action due to police investigations, institutions should resume their Title IX investigations without waiting for the final outcome or filing of charges. The letter also said these periods usually last three to 10 days.
A San Diego State spokeswoman told The Chronicle that this case is not technically a Title IX investigation because the person accusing the athletes was not a student, and the alleged assault occurred off campus. Under the current federal Title IX rule, almost all off-campus incidents aren’t covered by the law. Instead, San Diego State is calling the case a “sexual-misconduct investigation” through the Title IX office under the California State University system’s policies. In correspondence with the local police department last fall, the university asked the department to provide the high-school student with information on filing a complaint with the university’s Title IX office.
San Diego State recently posted those letters and a timeline of events on a webpage. The last letter, dated December 7, 2021, came from an associate vice president at the university. It reaffirmed that the university did not want to take any action that would undermine the criminal investigation.
The letter also stated: “Given the length of time since the incident, we have concerns that any further delays may adversely impact the university’s ability to fully investigate pursuant to our university policies relating to sexual violence.”
Seven months after that letter, the university began its investigation.
In an emailed statement, a university spokeswoman said the police department notified the university that it could proceed with its own investigation on July 22 this year.
According to Laura L. Dunn, a victims’ rights lawyer, the university could have done a lot more before then. “I believe that the school could have imposed an interim suspension, taken more action,” Dunn said.
Dunn said she had never seen a case where a local police department requested that the university hold off on its investigation for so long. If the department had indeed requested such a long waiting period, she said, that would warrant more scrutiny of the police.
Dunn, who is herself a survivor of sexual assault, said the university dragged out its investigation of her own case until one of the men she accused had already graduated. Promptness, Dunn said, has often been linked to the successful prosecution of sexual-assault cases.
“The impression I often get from general counsel for schools is we’re so erring on the side of due process that we can’t even do what may be feasible to protect survivors in the community. And that’s ridiculous,” Dunn said.
After looking into the details of the case, Tamara R. Lave, a law professor at the University of Miami who spent 10 years as a deputy public defender in San Diego, said she doesn’t think the university acted in bad faith. Lave has studied other cases in which university involvement directly compromised police investigations, so she can understand why the university would want to avoid it if possible. The situation, Lave said, would be different if no one else was looking into the matter.
“When they have the police department actively investigating it, I think it makes it hard for them,” Lave said. “They just don’t have the information, and they’re being explicitly told, ‘If you try to get information, it can imperil our criminal investigation.’”
But R. Shep Melnick, a professor of American politics at Boston College who studies Title IX, said that, based on the information he has on the case, there was little reason for the university to hold off for nine months. He said the university should have pushed the police department more.
The university should have asked, “If you’re not going to take more immediate action, then we really need to start our investigation,” Melnick said. “Schools are told by the regulations they should try not to interfere. But they can’t hold off forever pending the closure of the investigation.”
The district attorney’s office refused to share additional details about the case with The Chronicle, saying only that the case is under review and there is no timeline for a decision. According to San Diego State, neither the police nor the district attorney have released the names of the involved students to them. They only learned of the three students’ identities from Doe’s civil lawsuit.
“While SDSU received anonymous information about the reported incident, none of those individuals making the reports were witnesses,” a university spokeswoman wrote in a statement. “The university did not receive direct reports from any witnesses, nor the victim, and cannot legally take disciplinary action against students, faculty, or staff based on rumor alone.”
Doe’s lawyers said that the university’s ignorance of the case does not excuse the institution and demonstrates the importance of starting its own investigation sooner.
‘An Additional Betrayal’
The Los Angeles Times reported the university’s silence over the alleged gang rape in June. Since then, most of the publicly available information about the case has come from Doe’s lawsuit. That includes texts between Doe and police, who coached her to text and call the men she accused to coax information from them. The texts appear to be dated in 2021. Doe’s sexual-assault exam, or rape kit, was also returned to the police in October last year, according to Doe’s law firm.
Doe’s civil lawsuit describes her belly button, ear, and nose piercings all pulled out. In pictures provided by her lawyers, bruises encircle her neck and spot her thighs. Doe underwent her sexual-assault exam soon after — but her lawyers said she has been denied access to the results.
We’re so erring on the side of due process that we can’t even do what may be feasible to protect survivors in the community.
From the outside, Lave, of the Miami law school, said Doe’s case against the San Diego State athletes looks compelling. “But what the police or the prosecutor know and what we know are not the same thing,” Lave said.
Shortly after the criminal investigation began, San Diego State officials asked Brenda Tracy, an activist and presenter who shares her own story as a survivor in an effort to turn the tide of sexual violence, to speak to the football team. Tracy was not told about the incident, she said in an interview. Once she was there, she said she was vaguely informed that something had happened.
In a news conference in late August, the university’s athletic director, John David Wicker, said Tracy had been brought in to speak because of the alleged gang rape. This was news to Tracy. And as she learned more details about the case, the angrier she became.
“As I sit with this and I think about it more and more, it became an additional betrayal for me,” Tracy said.
Doe’s story mimicked her own so closely, Tracy said. As a young woman, Tracy said she had been gang-raped by four men, three of them Oregon State football players. The coach at the time suspended two of them for one game and said his players had made “a bad choice.”
Knowing now that the university waited so long to investigate makes Tracy feel like her appearance was a public-relations stunt, she said. She believes San Diego State’s request to bring her in feels “disingenuous.”
“I shared my story in a very vulnerable and graphic way to make sure they understand the harm when good people do nothing,” Tracy said. “And then at that point, after hearing my story, for the university to do what it did — it was personally hurtful.”
