244 93 LINKEDIN 1 COMMENTMORE

A woman who said she was sexually assaulted by a University of Tulsa basketball player alleges that 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 the player 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. The school 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 past 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 the College of Southern Idaho, a junior college where he played for a year, no investigation was conducted into a rape allegation, which is required under Title IX and outlined in guidance from OCR.

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.

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 yet been served with the lawsuit and has not had a chance to review it.

The statement reads, in part, "This process was carried out fully and completely in the case in question, including communicating the official policy to all parties involved. As soon as the incident was reported, university administrators immediately began the investigation process. We conducted our investigation in a fair and timely manner, cooperating fully with local law enforcement."

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

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

The woman, meanwhile, 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."

Similar reforms are being required around the country as schools struggle to come into compliance with Title IX. In recent years, several schools have been criticized for their handling of sexual assaults. Currently, 76 schools are under investigation by OCR for their handling of Title IX cases. Several more are facing lawsuits from students.

In response to a survey issued by Missouri Sen. Claire McCaskill, 41 percent of schools said they had not conducted a Title IX investigation related to a sexual assault in the previous five years. That sends a powerful message to both victims and perpetrators, said Laura Dunn, who became an activist after her own rape in college 10 years ago and started the non-profit SurvJustice.

"When schools learn about a sexual assault, and they do nothing, they don't take any action, it really discourages any survivor from reporting," Dunn said. "That creates that same cycle of being unable to identify repeat offenders, allowing sexual violence to continue and a lot of a survivors know that very little is often done, and that deters them from making that effort.

"Anytime you have a minimal consequence or no consequence, it's in effect kind of enabling sexual violence."

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 up off the bed where she had been sitting. Despite her protests to stop, the woman said 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 reported to the Tulsa police department, and that lasted through the end of the season.

After the woman filed a police report on 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 on 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 although prior sexual history had not.

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

– 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."

– After campus security interview the woman and Swilling, TU scheduled a disciplinary hearing and told the woman that Swilling's attorney prepared a packet of information "that purported to make Plaintiff look sexually promiscuous and not credible." She retained Clune, who advised the school that "proceeding to a hearing without a proper investigation" violated Title IX.

– The school's investigation consisted largely of witnesses coordinated by Swilling and his attorney.

– A man Swilling recruited to sign an affidavit told TU security that 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."

– The woman's friends were asked about her sexual history by TU security during the investigation.

– 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 told that the Department of Security had received a police report on a previous incident from authorities in Twin Falls, Idaho.

-- Only Swilling and the woman testified at the hearing.

"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.

"I don't know what more they could have done. I'm not an (Title) IX expert. I simply made our client available at all times to the police and to the University of Tulsa without any kind of restriction or check in any way."

PREVIOUS ALLEGATIONS

In the lawsuit, the women contends Tulsa had reason to know of at least one and as many as three similar prior allegations against Swilling. One of those women filed a report with Tulsa's Department of Security, according to the complaint, which also says that department did not investigate and that no disciplinary charges were brought.

Messages left for a former Tulsa student believed to be that woman were not returned.

"Within two weeks of opening an investigation, Tulsa PD located and spoke with three additional women who alleged similar sexual misconduct and rape by Swilling, all dating from before the Plaintiff ever met Swilling," the complaint reads.

According to the lawsuit, Tulsa police interviewed a third woman at Tulsa who said Swilling attempted to assault her at a party. After hearing that woman's screams, other students at the party entered the room and pulled Swilling off of her.

Although that woman is identified in the local police investigation, the lawsuit notes, "It is unknown who at TU was aware of this woman's report."

The woman's lawsuit contends Tulsa has not followed up with investigations or potential code of conduct charges related to the two other Tulsa students who alleged Swilling sexually assaulted them.

USA TODAY Sports obtained copies of the police report filed in Twin Falls, as well as campus security reports, which were in some cases heavily redacted, letters from Tulsa officials to the woman and her appeal of the decision from her attorney.

In March, USA TODAY Sports' filed public records requests with Tulsa police for documents related to the case. In response, TPD sent a computer screenshot containing the case number, location, time and date of the alleged crime, rape by force, and the victim's name. Swilling's name was not listed.

A public records request submitted to the district attorney's office was denied. District attorney Tim Harris declined to file charges on April 29.

"Although we would hope that the District Attorney will reconsider his filing decision as new information comes in about other victims, there are no present plans to sue Mr. Swilling," said Clune, the woman's attorney.

Nancy Hogshead-Makar, an attorney and senior director of advocacy for the Women's Sports Foundation, said while the criminal justice system has strict rules regarding admitting prior allegations into evidence, those would be expected to be permitted in a school proceeding.

"That's borrowing inappropriately from the criminal system," Hogshead-Makar said. "That, to me, is an example of very poor training. All the research says these are a small number of men out there causing a lot of harm. … To not include those, I would say is not fair to the victim. If it's a 50-50 game, one of them is going to leave, then not including them is not fair to her."

Speaking generally about the role of previous allegations in a college's judicial proceedings, Erin Buzuvis, a professor of law at Western New England University and a Title IX expert, said nothing prevents schools from considering past allegations which might be relevant.

"I think what a school has to do is figure out whether it's general obligation under Title IX, which is to take the steps that are reasonably designed to prevent the recurrence of sexual assault, whether that obligation requires them to factor (previous allegations) in," Buzuvis said. "That would tend to point toward yes in many circumstances.

"There is a role for past reports to play."

'EDUCATED OURSELVES'

When accused in a similar case at a junior college, Swilling did not face a school investigation.

In Dec. 2011, Swilling went to watch a movie at the house of a female College of Southern Idaho student there, 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 Jan. 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."

That woman came forward now, first sharing her story with ESPN in a story published Monday. Lexi Mallory said she decided to move on rather than pursue the investigation.

"It was really a lot for me to handle at that time in my life," Mallory, now 22, told USA TODAY Sports. "I knew I wasn't going to get anywhere because I knew the type of person that Patrick was, so I felt like it was a waste of my time because nothing was going to come of it besides me being tossed around like I was nothing continuously."

How Mallory's case was reported to local police raises questions about the school's handling of the case.

Southern Idaho athletic director Joel Bate contacted police after then men's basketball coach Steve Gosar received an email from the Mallory's mother saying that Swilling had raped her daughter. The woman told her mother about the encounter after the woman heard Swilling had taken photos of the woman getting dressed and show them to his teammates.

"I advised her to call the police or contact the school counseling center," Mallory's mother wrote. "She said she didn't want to because she just wanted it to go away and not to become some big horrible news story."

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

Bate said he took the email to the college's president, at that time Jerry Beck, who advised him to report it to police. But the schools' involvement ended there.

"It was never reported up through the dean of students," said Scott Scholes, the current dean of students who was not in that position at that time.

OCR 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. Both he and Scholes said school officials have since received training.

"The police took over from there. Under the advice of our president, we stayed completely out of that and had no contact with the girl," Bate said. "Probably at the time 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."

Mallory, who did not return to school after the alleged assault, said she has not been contacted by anyone at College of Southern Idaho or received an apology for its failing to investigate her case.

"I don't think that schools protect their victims," she said. "They do what's best for their image, and athletes are a big deal to colleges. It didn't come to school with any scholarships. I was working part-time in a retail store. I had nothing to offer the school, so why try to keep me around is how I kind of felt."

It's not known what, if anything, Tulsa coaches were told about the accusation against Swilling while he was being recruited. Emails between the schools at the time give no indication that it was mentioned.

Gosar, then the head coach at the College of Southern Idaho, could not be reached for comment.

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."

"I've never met any of these other women," Mallory said. "Even to this day I have no contact with any of them. The fact that four different people have come up and said this has happened and for no one to be taking us seriously, it just kind of comes to show what these schools are all about."

244 93 LINKEDIN 1 COMMENTMORE
Read or Share this story: http://usat.ly/VzWqhB