AthleticBusiness.com has partnered with LexisNexis to bring you this content.

Copyright 2014 Gannett Company, Inc.
All Rights Reserved
USA TODAY

A woman who said she was sexually assaulted by a Tulsa basketball player alleges the school knew or should have known about previous allegations against Patrick Swilling Jr., including similar alleged incidents at Tulsa and at a junior college he previously attended, according to a federal lawsuit filed against the school Monday.

The school's handling of the matter violated federal Title IX laws, the lawsuit contends. Tulsa has 21 days to respond to the complaint, which was filed in the U.S. District Court for the Northern District of Oklahoma.

Swilling, who was not criminally charged, is not named as a defendant in the civil matter. Tulsa's dean of students concluded Swilling was not responsible for sexually assaulting the woman.

The lawsuit is the latest against colleges and universities that have come under fire for their handling of sexual harassment and violence. In the last three years, the Department of Education's Office for Civil Rights has stepped up enforcement of Title IX on college campuses.

Under the law, schools are required to investigate and adjudicate cases of sexual harassment and violence on their campuses or between students in a fair, equitable and prompt manner.

The woman's lawsuit alleging Tulsa mishandled her case comes after Swilling's previous school did not investigate a case in which a woman said he sexually assaulted her. At Southern Idaho, a junior college where he played for a year, no investigation was conducted into the rape allegation, something that is required under Title IX and outlined in guidance from the Office for Civil Rights.

Two officials at Southern Idaho acknowledged to USA TODAY Sports that the school did not handle the matter properly and has since improved its training. "We were probably egregious (in not investigating) and have since educated ourselves in terms of what we needed to have done that probably was not done correctly then," Southern Idaho athletics director Joel Bate said.

The name of the Tulsa student filing the lawsuit is being withheld because USA TODAY Sports does not identify victims of sexual assault.

"They're just allegations," said Corbin Brewster, a Tulsa attorney who represented Swilling during the investigation. "They're allegations of allegations. It's like hearsay about allegations that have never been proven to be true. I think it's telling that the allegations that they referenced from Idaho did not result in any charges, did not result in expulsion of the school."

In a statement from the office of President Steadman Upham, Tulsa said it has not been served with the lawsuit and has not had a chance to review it. Upham said the university conducted the process "fully and completely" and the investigation was fair.

Swilling is the son of former NFL linebacker Pat Swilling Sr., a five-time Pro Bowl selection and the 1991 Associated Press NFL Defensive Player of the Year. Patrick Swilling Jr. completed his basketball career and plans to walk on to the Golden Hurricanes football team this season.

The woman making the claim of sexual assault withdrew from classes last spring. According to the lawsuit, "Plaintiff was now terrified of attending TU given Swilling's presence on the small campus. Having no further protection, assistance or accommodation from the school and knowing that her offender would be allowed to remain on campus without limitation, Plaintiff withdrew from classes."

In her lawsuit, the woman, whose parents attended Tulsa, seeks damages as well as changes in how Tulsa handles sexual harassment cases. That includes retaining an outside expert, adopting a zero-tolerance policy and providing an annual independent review of "athletic department compliance with the sexual harassment and recruiting policies."

"As frustrating as this has been, my client and her family have been longtime supporters of this university," said John Clune, a Title IX attorney for the woman. "They want to see their response be actually helpful to women on campus. Although it's easy to just wash your hands of a school, that's not what she wants to do. She wants to see her friends who are still there and other future women on campus be protected."

TULSA INVESTIGATION

The woman's lawsuit includes a narrative of the alleged incident and subsequent school investigation:

On the night of Jan.27, she went to Swilling's apartment to watch a basketball game. She earlier had sent him a text message that said this was not a "booty call," according to a report from Tulsa's department of security.

She told police that Swilling grabbed her buttocks and she got off the bed where she had been sitting. The woman said despite her protests to stop, Swilling grabbed her, pulled her pants down and raped her. Afterward, Swilling said, "No one is going to know about this, right?" the woman told police.

But the woman told her roommate, and the next morning she went to the hospital for a sexual assault forensic evidence exam. Swilling was suspended from the basketball team the day after the woman made a report to the Tulsa police department, and the ban lasted through the end of the season.

After the woman filed a police report Feb.11, Tulsa police opened an investigation. Campus security officers interviewed Swilling the next day, but interviews with a list of witnesses provided by each party did not start until March 8.

The school held a hearing on the matter March 25. Six days later, dean of students Yolanda Taylor wrote a letter to the woman notifying her that based on the campus security report, the information at the hearing and "the inconsistencies in your testimony," Taylor had not found Swilling responsible. The woman appealed, arguing past allegations of sexual assault should be considered.

The lawsuit takes issue with several aspects of the school's investigative process and hearing, including:

The woman requested a no-contact order against Swilling while the investigation was ongoing and says she was told by school authorities that they "don't do that here."

A man Swilling recruited to sign an affidavit told school security he wouldn't sign it because "he felt Swilling's lawyer was 'twisting his words' by attempting to get him to falsely assert that Plaintiff had accused him of rape previously."

After previously being told that prior allegations against Swilling would be included in the hearing, the woman and her mother were notified the day before that information would not be allowed. Taylor told the woman's mother that the department of security had received a police report on a previous incident from authorities in Twin Falls, Idaho.

"It's easy to say after you've made the claim and after you've monitored the circumstances and after you've interfaced with the university and if the result wasn't what you like that it didn't comply with (Title) IX," said Clark Brewster, who, with his son, Corbin, represented Swilling during the investigation.

'EDUCATED OURSELVES'

When accused in a similar case at Southern Idaho, Swilling did not face a school investigation.

In December 2011, Swilling went to watch a movie at the house of a female student, according to an account the woman gave to Twin Falls police.

According to that statement, Swilling began by touching her buttocks before taking her pants off and raping her. She said she told him she didn't want to have sex. Afterward, "Mr. Swilling told her no one would find out if she did not open her mouth," the police report says.

The officer taking the report in January 2012 noted, "I felt that due to the circumstances and the many times she said no to Mr. Swilling, a crime did occur."

In a report filed in a follow-up interview two days later, the detective wrote, "She stated she did not want me talking to Mr. Swilling. She just wants to forget this. (She) said she never once felt like she had been raped; she was a willing participant in the sexual activity."

Bate, the Southern Idaho athletics director, contacted police after then-men's basketball coach Steve Gosar received an e-mail from the woman's mother saying that Swilling had raped her daughter. Bate said he took the e-mail to the college's president, at that time Jerry Beck, who advised him to report it to police.

But the school's involvement ended there.

Even if a victim chooses not to pursue a sexual assault complaint with police, schools are still obligated to investigate it under Title IX.

The Office for Civil Rights had issued its guidance seven months earlier, but Bate said at the time school officials were still trying to figure out their responsibilities under the law.

According to the woman's lawsuit, the school either knew of the previous allegation against Swilling before admitting him or "deliberately refused to adequately investigate his background."

 

August 19, 2014

Copyright © 2014 LexisNexis, a division of Reed Elsevier Inc. All Rights Reserved.
Terms and Conditions Privacy Policy