Oregonian prints response from basketball players attorneys

Update: John Clune, attorney for the survivor, has this response, so far:

This is a pretty poorly spun version of the night in question which noticeably omits all of the facts that incriminated their clients. The description doesn’t mention that two of the three men admitted in police recorded phone calls that what they did to the victim that night was wrong with one of the men calling their behavior “very inappropriate and not something he would want to happen to his mother or sister”. The third man who refused to give a statement is facing his second sexual assault allegation in the past year.

I can’t blame the lawyers though as they are just trying to help their clients explain some pretty ugly behavior that has gotten a lot of press.

6/24/2014: Andy Greif has the story in the Oregonian. The full text of the letter:

From Shaun McCrea, Laura Fine Moro, Greg Veralrud:

No jury would find that Dominic Artis, Brandon Austin or Damyean Dotson committed any form of sexual assault against their accuser. Some people will insist that the University’s suspension is proof that the acts occurred, but they would be wrong. This determination was carved in stone the day the University’s president, in response to a hail of local and national criticism, all but declared these young men guilty and dismissed them from the team. Good political cover, bad principle. It’s absurd to expect that his underlings in the Legal & Student Affairs Departments would deviate from that line.

The process for determining student code violations is not well understood by the general public. There are few safeguards in the process to ensure that evidence is accurately and adequately presented and impartially considered. The University decides what information it will share, it decides what information will be considered, and it sets the ground rules for how information is presented. The University has power to subpoena witnesses; the accused student has none. Our repeated requests to the University to use that power to bring in witnesses to testify on behalf of the accused were ignored.

Perhaps most troubling is the lack of a meaningful opportunity to confront or examine the accuser with the assistance of counsel. The rules specifically forbid attorneys from asking questions of witnesses. Generally, citizens who face the loss of significant property rights or opportunities at the hands of the state are afforded these protections. In the case involving these young men, their requests for those types of safeguards were denied. Testimony from independent guests at the party who witnessed certain behavior, a cab driver who likewise made relevant observations, and witnesses who had information about the accuser’s subsequent statements about these events were not available. All the facts did not come out. These three young men were denied impartial justice.

So what are the facts?

The accuser went to a late night party in early March. The three young men were already present. Her interest in one of these men was immediate and obvious. She was flirtatious and chatty, and she began dancing suggestively for him. She rubbed her buttocks against him. She disappeared into another room twice with the young men. There was no verbal or physical force applied in any respect. She complained to no one at the party that she was being forced into anything. When another female student entered the room, the accuser and two of the male students were (she noted) fully clothed, chatting comfortably. The presence of that woman made the accuser uncomfortable, and she left the room of her own volition. She returned to the room on her own and expressly told the second woman to stay out. While in the room with the men (first with two and then with three of them), she initiated and engaged in sexual contact with them. Her demeanor for the most part that evening was laughing, chatting and flirting. She seemed enthusiastically impressed with meeting these basketball players.

The accuser’s claim of coercion breaks down completely as the party ended that night. Her friends had arranged for a ride home but the accuser refused to go with them, even after they told her (unnecessarily, given the fact that she had already been involved in sexual activity with the young men on two occasions during the party) that they only wanted her for sex. She opted for the cab ride with the young men, climbed in and sat on one of the male’s lap. The cab driver described the conversation as lighthearted and talking about sports. He described the accuser as seeming very impressed and “excited to be hanging out with U of O basketball players”.

It’s difficult to reconcile the foregoing account with the accuser’s subsequent claims that she was raped and sexually assaulted on two separate instances at the party prior to getting into the cab. Some skepticism of the foregoing account would be understandable if the source of the information was the three young men. However, all of the above information comes from other guests at the party, the accuser’s friends, the cab driver and the accuser’s own descriptions.

The night was not over at that point. The group reached one of the young men’s apartment. The accuser asked for something more comfortable to wear and changed clothes. She asked for a hair tie. The sexual activity continued. All agree that at one point during sexual activity, the accuser began to tear up. All sexual activity stopped at that point. One of the young men consoled her, asking what was wrong. All the young men seemed surprised at her reaction.

Again, some skepticism would be understandable if this description came solely from the three young men. However, the accuser herself told the investigator “They seemed honestly like ‘why are you crying,’ they were honestly surprised.” They were honestly surprised. They were honestly surprised because she had willingly initiated and participated in sex with them throughout the evening.

The young woman spent the night with one of the men and had consensual sex with him the next morning, a fact she omitted when speaking with her father and two police detectives during initial police interviews. When police were advised by one of the two young men who cooperated completely with the police investigation that this activity had occurred, the officer returned to ask the accuser if this was true. At that point, she reluctantly admitted it was true.

This young woman received a text message the morning after from another female party guest who had seen her get into the cab with the young men. When asked how her night had gone, the accuser texted back, “Very interesting. Ha ha.” It’s hard to see this description of an alleged rape as anything other than flippant.

One of her friends noted that when the accuser first told her about her sexual experience that night, the accuser made no reference or claim of any coercion or force. This friend told authorities that she thought it was unusual that a day later the story changed to rape.

The accuser’s claim that she was too drunk to resist the advances of the young men are likewise irreconcilable with the facts presented by two of her own acquaintances. They describe her consumption of modest amounts of alcohol earlier in the evening. Neither of the two noted any indication of visible intoxication.

All of this information is completely consistent with the three young men’s statements. They have repeatedly and consistently said that she was a willing participant and that she initiated some of the sexual activity.

Why did she make these claims?

The accuser left the party with the young men in a public way and with knowledge of what was going to happen. She left with the young men against the advice of her friends who also knew was going to happen. When she shared details of her sexual exploits with a friend the next day, she realized that her conduct did not meet with universal approval. Text messages between the friends bear this out. Now shamed and embarrassed, she had to turn the story around to reclaim her dignity. And she did so at the expense of three young men.

The inconvenient truth is that the only evidence that this young woman was coerced or intoxicated comes solely from her. Her claims are contradicted either directly or indirectly by every other witness or event that evening.

So why has there been so little interest on the part of the University or its various detractors in determining the truth?

In short, it’s inconvenient. Inconvenient to a University that was in the midst of trumpeting its compliance with Title IX requirements relating to its handling and investigation of complaints of sexual assault. Inconvenient to other factions within the University who were insisting upon changes in how the University dealt with these matters. This event was a vehicle to carry forth those agendas. These factions needed a presumption of guilt rather than innocence to drive their cause.

It is inconvenient for the University to consider the validity of the Lane County District Attorney’s decision not to prosecute this conduct. A decision from a District Attorney who aggressively prosecutes sexual assault and crimes of violence against women, often based on little more than a victim’s claim of assault. When we, as attorneys, learned of the District Attorney’s assessment of the credibility of this accusation, we knew it was significant.

We support firm policies against sexual violence. We want all students on campus to feel safe in their learning environment. But in the rush to judgment in the matter of these three young men, justice was not served. The process the University uses to investigate must include safeguards so that the accused are treated with fairness and impartiality. The points we have made illustrate just some of the many problems within the current system. Problems we hope the University will address as they undertake to re-examine and overhaul their procedures.