“I’ve never seen a school so aggressively try to defend a case by arguing the accuser was a slut and a crazy girl,” said attorney John Clune.
The call came into University of Tulsa campus security office in June 2012, from two of its own football players: A female friend had been raped.
Security better handle it, or members of the football team would take matters into their own hands, they warned.
The officers at Campo (students’ slang for security at TU) called the woman in and asked her to explain herself: Did basketball player Patrick Swilling Jr. rape her?
No notes are available from Campo’s interview of the woman, because the officers allegedly failed to keep a report — or intentionally destroyed one, records show.
A dispatch log of the football players’ call about the rape is all that remains.
Two years later, a 19-year-old TU student, Abby Ross, accused Swilling of rape in a separate incident and filed a report with the Tulsa Police Department, launching an official investigation and eventually, a lawsuit.
Suddenly, the TU campus security office that chose not to preserve the sexual assault incident report in 2012 decided to follow up two years later — with a phone call to the woman whose football player friends said she was raped.
This time, the Campo officer recorded the conversation.
After some small talk, the officer begins: “I was calling … it’s been reported to us, that I guess, that you were the victim of a sexual assault that incurred (sic) here on campus.”
The former student explains that she is at work at a preschool, can’t really talk at the moment and would prefer to check with a police detective before speaking to them.
She tries to quickly explain what happened.
“I did go in, and it was reported by two of my friends. They called it in for me, with me not knowing,” she says.
It’s clearly a painful memory.
“I went in and talked to them, told ’em I just want to put it past me, I don’t want to do anything. I told ’em what happened, but at that time, I was afraid of everything that could happen … so I didn’t do anything about it, but now that I know it happened to someone else, it upsets me. Because it really should have stopped with me.”
She offers to speak up if it would help Ross at the student conduct hearing.
“I’m just trying to figure out,” the campus security officer explains, “…Because … when … everything that we’ve discovered about it has said that when you came in, you said that it was a consensual deal.”
“No,” the woman responds bluntly.
A long, awkward silence follows. The officer never said who at the University of Tulsa supplied the detail that what happened between her and Swilling was “a consensual deal,” since no official incident report exists.
An unusual strategy
The University of Tulsa took an unusual strategy among institutions of higher education accused of violating a female student’s Title IX rights: At least on paper, officials believed Ross was lying about being raped.
In 2014, the morning after a sexual encounter that Ross said was rape and Swilling argued was consensual, Ross went to the Tulsa Police Department, then got a rape exam at a hospital.
Prosecutors filed no criminal charges. A student conduct hearing by the University of Tulsa did not find Swilling violated its code of student conduct. He wasn’t cleared until the basketball season finished, but he resumed classes and eventually tried to join the football team.
Within months, Ross filed a Title IX lawsuit alleging the university shirked its responsibilities under the federal law requiring it to protect female students. A Tulsa Police investigation revealed there were at least three prior allegations of sexual assault involving Swilling.
“Despite its knowledge of at least one, and as many as three prior allegations of sexual assault and misconduct perpetrated by Swilling, TU undertook zero investigation of his conduct and permitted Swilling to continue to attend TU,” her lawsuit states. “… TU was deliberately indifferent to the substantial risk that Swilling would sexually harass other female students at TU.”
But instead of believing Ross while arguing it still had not violated Title IX, the University of Tulsa alleged in years of court filings that Ross is a liar, the encounter was consensual, she had other prior sexual partners … so, you know.
The university’s defense strategy in court included filing (often under seal) motions “to introduce sexual history” about who Ross might have slept with while a student at TU.
“I’ve never seen a school so aggressively try to defend a case by arguing the accuser was a slut and a crazy girl,” said John Clune, a Colorado attorney who in addition to representing Ross, also represented the woman who was vilified by Florida State fans after she reported she was raped in 2012 by Heisman Trophy winner Jameis Winston.
In an exclusive interview, Ross told The Frontier: “I feel like (the University of Tulsa) came after me because I was still fighting back.”
Ross’s story of rape and the 2014 phone call from Campo about the details of the missing rape report were never heard by a jury in federal court.
Why the University of Tulsa chose this strategy to defend itself against Ross’s lawsuit isn’t clear. University officials declined to comment for this story.
The university’s stance may be rooted in the complicated business of Title IX regulations, Clery Act reporting, and running an institution of higher education that costs nearly $40,000 annually for students, tuition alone.
Sexual harassment of students, including sexual violence, is considered a form of sex discrimination prohibited under federal Title IX regulations. And under the Clery Act, all colleges and universities that receive federal funding — even private schools such as TU — have strict requirements with regard to reporting crime on campus.
In recent years, private and public universities across the country have been accused by students of underreporting or attempting to cover up incidents of rape to preserve their financial well-being.
It’s the subject of a documentary called “The Hunting Ground” in which Ross recently appeared. And controversies have erupted at schools including Stanford and Baylor over whether student athletes accused of sexual assaults received special treatment.
In the end, the University of Tulsa’s strategy to defend itself from Ross’s lawsuit worked.
That Campo phone call in 2014 that confirms another female student’s allegations of rape against Swilling? It was not heard by a jury, or used as evidence at TU’s conduct hearing for Ross and Swilling, nor were any other prior allegations of sexual assault against Swilling.
The University of Tulsa filed a motion for summary judgement in Oklahoma’s Northern District of Federal Court, and in April, U.S. District Judge Terrence Kern granted the motion and ruled in favor of the university. Kern’s ruling says Ross failed to prove the university acted deliberately indifferent “to the known risks posed by Swilling prior to her assault” or that it exhibited with deliberate indifference to her own report of rape.
Swilling may have moved on after proclaiming his innocence and trashing Ross on social media in an “open letter” he posted in 2014 after the lawsuit was filed. He did not respond to multiple interview requests from The Frontier for this story.
Swilling recently worked out with the New Orleans Saints in hopes of landing a spot on the NFL team. His father, Pat Swilling Sr. is a former all-pro NFL linebacker and a revered member of the New Orleans Saints’ “Dome Patrol.”
Swilling’s explanation is that Ross is a “cleat chaser” who wanted to date athletes. She accused him of rape, he said, because she liked another guy on his team. He and his attorneys claim additional stories of assault by Swilling over the years are also fabrications and distortions by women with suspicious motivations.
But Abby Ross is not backing down.
She’s taking her lawsuit to the 10th Circuit U.S. Court of Appeals, and her attorneys argue that universities shouldn’t be rewarded for “failing to investigate rape.”
Swilling raped her, Ross says, and someone should be held accountable.
Abby Ross always wanted to go to the University of Tulsa, just like her mother, an alumna and former cheerleader at the college. Her parents met at the school.
Ross joined Delta Gamma sorority, and in January 2014, she started talking to Swilling, a guard on the men’s basketball team.
They started texting.
Patrick: “You have a bf?”
Abby: “Nah I’m as single as can be lol… Do you have a gf?”
P: “Nah. WYD tonight?”
A: “Just have this meeting and then hw hbu?”
P: “Nothing much, you live in a apt?”
A: “No I live in the DG house.”
P: “Ohhh okay cool.”
A: “Yeah it’s alright. I’m trying to get an apt for next year though cause I’m tired of living in the house”
P: “I feel you. I saw you at Barrett’s on Saturday”
A: “I was super drunk that night”
P: “Lol and super fine! I didn’t know white girls had ass like that”
A: “Haha thanks”
P: “Welcome… you send pics?”
A: “Not like sexual ones if that’s what you mean.”
A couple days later, Ross texted Swilling a question: “Why do you want to hang out with me after all those videos your teammates took on Saturday that I’m in? So embarrassing lol.”
“The ones that got sent to y’alls’ group message.”
“I didn’t even see them.”
Then, on Jan. 27, they texted about making plans to hang out.
Patrick: “When you trying to hang? About 9-9:30”
A: “That works.”
P: “Wear something sexy”
A: “Haha that makes me wonder what the plan is for tonight”
P: “Lol I’m jp man”
A: “Haha okay good. But really what do you want to do tonight?
P: “It’s up to you!”
He texted her an address, she showed up. What happened after that point was a matter of he-said-she-said, as far as university officials were concerned.
Swilling asked Ross to come over and hang out at his on-campus apartment.
They were watching basketball when suddenly he rolled her over, and grabbed her butt, according to Ross’s lawsuit and court records.
He forcibly pulled her pants down, stuck his fingers in her vagina and she told him to stop, the lawsuit states.
He didn’t stop, according to her, and told her: “Shut up.”
He then raped her, she said, while she cried and continuously asked him to stop.
He allowed her to leave afterward, but only after she promised not to tell anyone.
“Pinky swear?” Swilling reportedly asked Ross. (He claims it was Ross who made the pact.)
Whatever the pinky promise was supposed to mean, Ross told a friend what happened and went to police the following morning.
Detective Eric Leverington of Tulsa Police Department’s sex crimes unit began to investigate. He filed a search warrant to obtain DNA samples, text messages, voice mails and social media posts from Swilling’s phone.
According to police reports describing the assault, Ross and Swilling were watching TV in his room when he started to pull her pants down. The report states Ross told Swilling she did not want to have sex, but he used more force to pull her pants down to her ankles.
He forced himself inside of her, had sex while she cried and pleaded for him to stop, then told her not to tell anyone, according to police reports.
Leverington brought Swilling downtown for a “non-custodial” interview, and asked him to tell his side of the story.
In the interview, captured on police interrogation video, Swilling paints a very different picture, in which he is not a rapist but a well-endowed Don Juan whom Abby could not get enough of.
“I fingered her and she was grabbing on my penis,” he explains casually. “She’s a bikini model? I don’t know if she told you that. We were looking at her pictures on Instagram. We started talking and touching … and that’s when her pants and stuff started coming off.”
He calmly recounts all the sexual positions they “did it in.”
“I picked her up, all kinds of stuff, so…”
Detective: “At no point did she say stop?”
Swilling: “No, at no point did she say nothing.”
He humblebrags that the sex lasted probably about 30-45 minutes, and imitates Ross doing a heavy sigh after it was over, saying “we were just laying there, talking.”
She never said no, he insists.
Never said it hurt? Leverington asks.
Only at the end as the were about to “be done,” he explains, and again imitates a breathy version of a girl’s voice.
“Your penis is big,” Swilling mimics her saying.
“Does it hurt?,” he said he asked her.
“Yeah it hurts, it’s so big, it’s so big,” Swilling said she responded. “After we were done she was like: ‘I can’t believe your penis is so big.’”
But if she liked the sex so much, why was she now claiming it was rape? The detective wants to know.
In other words, where did the consent portion of the evening go wrong?
Swilling insists there was another guy Ross was dating, and she made up the rape story so that boyfriend wouldn’t be mad at her for sleeping with someone else. He makes sure to tell the detective that he’s heard Ross sleeps around and he knows a lot of other guys she’s been with.
“She was into it,” Swilling insists. “I’m not that kind of guy, I didn’t rape this girl, man.”
“I actually picked her panties up for her off the floor and helped her put them back on,” he offers, as proof of his chivalry.
Has anybody ever accused you of anything like this before?
No sir, he answered.
But the more Leverington investigated, records show, the more he found out that wasn’t true.
During Leverington’s interview, he asked Swilling about any schools he attended before transferring to University of Tulsa in 2012.
Swilling mentioned St. Joseph’s in Philadelphia and Delgado Community College in his home state of Louisiana.
He didn’t mention the College of Southern Idaho.
In 2012, a few months before Swilling transferred to TU, the mother of a student named Lexi Mallory wrote an email to Southern Idaho basketball coach Steve Gosar to tell him Swilling raped her daughter.
“He was not some stranger that jumped out of the bushes and beat the crap out of her and raped her. He was a friend that was a guest in her apartment. When she said no and tried to fight him, he pinned her down,” the email explains about the incident that allegedly occurred in late 2011.
The coach told Mallory’s mother that police would have to handle the incident, and an investigation began.
Police interviewed Mallory, but at some point, she backed down from her allegations that Swilling raped her.
Mallory told ESPN’s Outside the Lines in 2014 that she did so because the investigation had become too traumatic for her, and she was intimidated after learning that Swilling hired an attorney. It was a small campus, and there was no way to avoid running into a popular basketball star. She eventually dropped out.
The school never conducted a Title IX investigation, officials said.
Mallory did not respond to interview requests for this story.
In depositions for Ross’ lawsuit, former TU basketball coach Danny Manning, who recruited Swilling, said the coaches at Southern Idaho never told him their player was the subject of a rape investigation.
Manning spoke directly with the CSI coach about Swilling, asking if “there was anything else he needed to know about Swilling.” Manning testified in a deposition that he would have expected the other coach to mention the rape allegation then, but he didn’t.
But the police report is a public record.
On June 12, 2012, TU sent Swilling an acceptance letter and he moved to Tulsa.
About 10 days later, the two football players called campus security and reported their friend’s rape.
In that incident, a woman referred to as Jane Doe in court records said Swilling was at her apartment with friends, followed her inside her bedroom and closed the door, according to a police report.
“He forcibly pushed her onto the bed even though she repeatedly told him to stop … forcibly inserted his penis into her vagina and had sexual intercourse with her even though she did not give consent.”
Swilling “put his hand over her mouth and told her, ‘Don’t scream … don’t make a noise,’” the report states.
Jane Doe declined an interview request when contacted by The Frontier. Her 2014 re-interview by TU’s Campo security is among the court records filed in Ross’ lawsuit.
There are vastly differing explanations from various TU security officers involved about what exactly happened in Jane Doe’s case and why an incident report was not preserved.
In depositions produced as part of Ross’ lawsuit, several of the Campo officers who conducted the 2012 interview said it was superior officer’s decision to trash the report. Some claimed a report never existed.
Court records also show several students’ accounts of an alleged assault attempt in 2013 by Swilling against a female athlete, where he reportedly followed her into her room uninvited, shoved a towel under the door and tried to pull her pants down.
She screamed and two friends came into her room and told Swilling to leave immediately, according to court records. No police report was filed.
The best defense
When Ross came forward with rape allegations against Swilling in 2014, Swilling immediately hired several attorneys, including Corbin Brewster of Tulsa’s Brewster & De Angelis law firm.
Brewster, who told The Frontier he’s not currently representing Swilling, came out swinging on his client’s behalf in 2014.
Court records show the law firm assembled a “booklet” for the Tulsa County District Attorney’s office in an attempt to dissuade then-DA Tim Harris from filing first-degree rape charges against his client.
A copy was also provided to Detective Leverington, who promptly wrote his own response to the booklet’s “relevant facts” for the DA’s office, assembling a 15-page report that negates “a majority of the data as either misleading or simply not consistent with (his) investigation,” Leverington wrote.
The detective’s report to the DA’s office appears to disprove several arguments Brewster made in the booklet and in media interviews, including allegations that other possible victims had recanted or that Ross had falsely accused another athlete of rape.
Text messages sent by Ross to Swilling after the alleged assault were actually done so at the direction of Leverington, in an effort to see if Swilling might confess via text, records show.
Swilling, and TU officials via legal filings, have publicly accused Ross of deleting text messages that paint a different picture of the encounter.
But Leverington’s report states it was Swilling who immediately deleted text messages, after he initially declined to allow police to search messages on his phone — only handing it over when police obtained a search warrant.
Ross initially texts Swilling: “Hey I’m kinda’ upset about what happened last night. … I told you I didn’t want to hook up.”
Text messages included in the court records reveal some disjointed small talk in between, but Ross quickly gets more blunt in her assessment as the days pass:
“You rape a girl and then get a concussion and can’t play. Sounds like karma.”
“You fucking raped me and you know it. You’re ruining my fucking life.”
“I fucking hate you. Fucking admit what you did.”
As for the allegation by Swilling and Brewster that Ross had threatened to accuse another student athlete of rape because he had a sex tape of her, Leverington’s report states that the athlete in question said he was taken to Brewster’s law office by Swilling and asked to a sign an affidavit attesting to that story, but refused because it wasn’t true.
Ross never accused him of rape, he told Leverington, and there was no sex tape of the two of them, the report states. And the video Ross refers to in her text message to Swilling is of her dancing suggestively at a party, not a sex tape, her attorneys said.
Leverington declined to comment to The Frontier on the specifics of his investigation, saying that he stood by his findings as detailed in court records.
“If I said it and it’s on record somewhere under oath, then it’s accurate,” he said.
During his investigation of Ross’ allegations, he was contacted by “outside sources” who wanted him to know there were other victims, he said.
In his years investigating sex crimes, Leverington said he’s observed that victims choose to speak out or remain silent for different reasons.
“College campuses are small communities,” he said. “There’s a lot of vulnerability in female students, because of their age and the fact that alcohol is often involved.”
The University of Tulsa doesn’t have a police department, only a campus security office, he points out. Campus security officers have no authority under state law to investigate rape complaints.
Reluctance among rape victims to file reports is a legitimate problem that police investigators often face, especially when the alleged perpetrator is a friend, acquaintance or significant other.
It’s one of the reasons Tulsa police said they offer a no-report SANE exam option, for victims who aren’t yet sure if they want to file a report, but want to preserve their legal rights and any evidence. It’s the option that Ross initially chose when she contacted police, records show.
It’s unclear if Jane Doe was ever offered that option by TU Campus Security in 2012.
As Leverington investigated, he grew suspicious when he caught Swilling in several lies, and a pattern emerged in the basketball player’s response to accusations from various women, the report states.
“Throughout my investigation I spoke to numerous witnesses who said Patrick Swilling would belittle his accusers. He told people that these girls were hoes, drunks, or just making stuff up because they wanted to sleep with him,” Leverington’s report states.
Swilling hinted as much in his “open letter” he posted in 2014: “It’s become easy for a woman to use to sexual assault for a substitute when friends, family and most of the time their significant other frowns upon the truth of what she did. If allegations of rape can put me in prison, why can’t proven false allegations of rape put an accuser in prison for the same amount of time?”
University of Tulsa campus security officers reported Ross was uncooperative.
This differs starkly from the reports prepared by Tulsa Police, and Ross wrote a letter to TU administrators questioning why campus security put that in their report of her rape allegations, which was used as evidence at the student conduct hearing.
The first scheduled conduct hearing was postponed, after Ross’ attorneys notified TU officials that her allegations hadn’t been properly investigated under Title IX requirements.
Yolanda Taylor agreed, and ordered campus security to investigate Ross’ claims further while postponing the hearing.
Records show Brewster in frequent contact with the DA’s office during those months:
“Our hearing at the University is currently set for next Tuesday, FYI. I may be wrong, but I think they will clear Patrick of any wrongdoing. The burden of proof at that hearing is ‘preponderance of the evidence.’ Unfortunately, it won’t be before the NCAA tournament game so Patrick is excluded from playing in the tournament (unless TU makes an improbable run to the sweet sixteen),” Brewster emailed a prosecutor prior to the hearing.
At the time of the investigation into Ross’ rape allegations, the University of Tulsa men’s basketball team was headed to the NCAA Tournament for the first time nearly a decade.
Court records reflect that Brewster’s father, attorney Clark Brewster, also kept close tabs on the case via phone conversations with prosecutors.
Immediately after the student conduct hearing was initially postponed by Taylor, Corbin Brewster left a voicemail on the phone of Justin Bauman, then director of basketball operations at TU.
“We had some things happen yesterday that I think are relevant to the basketball program. Patrick’s hearing got postponed by the Student Conduct Board. And the assistant dean told us he’s cleared as far as the university is concerned.”
Ross’ attorneys have seized on this as evidence that TU always intended the conduct hearing would find in Swilling’s favor. Brewster maintains he was just preserving his client’s right to play in the NCAA Tournament if at all possible, a lifelong dream for most student basketball players.
Swilling didn’t get to play in the tournament, but the student conduct hearing cleared him of wrongdoing.
The day after TU cleared Swilling of any wrongdoing at a student conduct hearing (the technical term universities use is “not responsible”), Corbin Brewster emailed the Tulsa County prosecutor overseeing the case.
Yesterday, the University of Tulsa, after an independent investigation, cleared Patrick of any wrongdoing associated with Abby Ross’ allegations of sexual assault. See Letter Attached. The evidentiary standard used, pursuant to Title IX, was “preponderance of the evidence.” Given the University’s decision, it is difficult to imagine a jury of twelve people could be convinced beyond a reasonable doubt that Ms. Ross has been truthful about her allegations of sexual assault.
Please call me if you have any questions or wish to discuss this matter further.
After the student conduct hearing ruled in his favor, Swilling remained on campus as a student athlete. The basketball season was over, he was dismissed from the team, and eventually fought to have his NCAA eligibility reinstated so he could play football.
The District Attorney’s office chose not to file criminal charges against Swilling weeks later.
Harris explained his decision in an email to Tulsa police in 2014: “Our collective analysis based upon our experience of having tried many sexual assault cases leads us to our conclusion that without independent corroboration supporting the victim’s allegations a jury trial verdict in favor of the victim is very unlikely.”
Leverington didn’t comment on the specifics the case, but he did say of the outcome: “I tried to fight for her.”
Rape cases often don’t end up in court: Statistics show that nationally, only between 8 and 37 percent of rape cases are prosecuted.
Brewster followed up on the decision by the DA’s office by sending a thank you note to prosecutors: “Mr. Swilling and his family are relieved to close this very difficult chapter in their lives. They are also grateful to you and your office for the thoroughness and impartiality in your review of the evidence in this matter.”
Ross’ attorneys maintain she never received a fair and impartial student conduct hearing or Title IX investigation by the university.
Within months, Ross filed her Title IX lawsuit and Swilling posted an “open letter” in response that was shared widely via social media.
In interviews at the time, Brewster called the letter a “draft.”
Many of the allegations made in Brewster’s booklet prepared months earlier for the DA’s office ended up in Swilling’s “Open Letter.”
Brewster also made repeated threats of a defamation suit on Swilling’s behalf, but no such lawsuit has ever been filed against Ross.
Officials at the University of Tulsa declined to be interviewed for this story. The Frontier sent university officials a detailed list of questions in an effort to allow TU to respond to specific allegations detailed in this story.
A university spokeswoman emailed Tuesday to notify The Frontier: “The university will not be responding to these questions at this time.” In a follow-up email, she clarified: “The university does not comment on questions related to pending litigation.”
When Kern’s ruling was announced, university officials issued a statement: “The University of Tulsa has received the court’s ruling granting summary judgment in favor of TU, and is satisfied that the court was able to comprehensively review the case, adjudicate the issues and absolve TU of any wrongdoing.”
According to Ross’ lawsuit, the university initially scheduled a hearing on her rape allegation without having investigated the incident, and rescheduled only when Clune advised the school that would be a violation of Title IX.
In a deposition taken as part of Ross’ lawsuit, Dean of Students Yolanda Taylor (the school’s top Title IX official) said she advocated to allow evidence of prior sexual assaults to be allowed as part of Swilling’s student conduct hearing. However Taylor said she was advised against it by attorney Pat Cremin, hired by the university as general counsel in this case.
So Taylor was placed in the position where she knew of the prior allegations of sexual assault by Swilling, but wasn’t allowed to consider it as part of the TU student conduct hearing, according to her deposition.
And this appeared to be a key factor in Kern’s decision: The university was simply following the advice of its counsel, he wrote.
Taylor also said she never received any report of the 2012 alleged assault against Jane Doe, and if such a report existed, it should have reached her office, she testified.
Jane Doe said in police interviews that she filled out a report, despite her reluctance to file charges.
“I’ve never received a signed copy of the report as she stated she provided to campus security,” Taylor said in her deposition. “So I don’t know again where that might be or why we don’t have it.”
In a deposition taken from Zachary Livingston, one of the TU Campo officers, he makes an unsubstantiated statement that Jane Doe recanted in 2012, and offers a puzzling explanation for why the football players who called in the report were never interviewed.
“Because the information that they have, we can’t verify it. They just heard it second or thirdhand,” Livingston explains.
And if the victim won’t report it, there is no crime as far as Campo is concerned, he testified.
“If there is no victim, there is no crime,” he said.
But shouldn’t there at least be a report? Especially when the dispatch log reflects there was at least one first-hand witness?
“What was communicated to me was we had no victim. Everything was investigated fully. There was no victim. There was no crime. That is what was told to me,” Livingston testified.
He does not specify who told him that.
Court records show a former Campo police officer named Brian Underwood initially took Jane Doe’s statement, insisted that she denied being raped and was told by his superior officers — including a captain named Paul Downe and Campo Director Joe Timmons — not to complete any report. (It should be noted that the Campus Security office is actually housed inside TU’s athletic department.)
Spencer Bryan, Ross’ attorney in Tulsa, said someone at TU made the deliberate decision to destroy Jane Doe’s report.
“It claimed that destruction was OK because the survivor did not report a crime, an assertion clearly disputed in the 2014 re-interview,” Bryan said. “In other words, accepting the 2014 interview at face value, TU deliberately destroyed a victim statement reporting an on campus sexual assault, which is unconscionable.”
Taylor’s findings and ruling from the student conduct hearing were made with input from Cremin, who was also hired to protect the university from liability in any Title IX suit resulting from the outcome.
So the same attorney advising Taylor on the outcome and handling of Ross’ conduct hearing at the university is also charged with limiting its liability from potential lawsuits that could result from its decision.
And Ross’ attorneys say this is a blatant conflict of interest: The same attorney determining the outcome of that hearing is assisting the university by not allowing any policy violations to be documented via a student conduct hearing.
Kern’s own ruling states plainly that Taylor had advocated for the prior allegations of sexual assault by Swilling to be considered, and that she believed “it would have made a difference,” but she was “overruled” by Cremin.
At the same time, Kern’s ruling states, “a reasonable jury could not conclude that the 2012 report, as described by Jane Doe, put TU on notice that Swilling posed a ‘substantial risk’ of sexual violence.”
Jane Doe’s report was not too dissimilar or too distant in time from Ross’ allegation, Kern wrote, but “it was too vague.”
“(She) did not willingly make any report,” Kern wrote. Because she was unwilling to proceed and stated only that Swilling took “advantage of” her, it was not sufficient to place TU on notice that Swilling posed a “substantial risk” of sexually assaulting other TU students, his opinion stated.
But court records show Taylor admitting that the 2014 re-interview of Jane Doe provided sufficient information to justify a separate student conduct hearing for Swilling, but couldn’t explain why no hearing was conducted.
In her own words, she outlines some of the challenges colleges face with regard to sexual assault reporting:
“Most cases of sexual assault that are reported on college campuses are reported as acquaintance or date rape, and students are sometimes hesitant to report individuals that they perhaps considered friends. It’s a small community, particularly at the University of Tulsa. Students sometimes feel isolated or ostracized from their various communities when they do that.”
Though TU campus security should have “at a minimum,” created an incident report and conducted further investigation in regard to Jane Doe’s allegations, “failing to follow best practices or past practices is not equivalent to deliberate indifference or clearly unreasonable conduct under Title IX,” Kern wrote.
The university’s decision to exclude prior accusations from the hearing, “while perhaps misguided,” did not demonstrate “deliberate indifference” to Ross’ rights, Kern ruled.
Attorneys at TU have since asked the court to order Ross to pay nearly $10,000 of their legal expenses.
Ross’ attorneys say they believe a jury would have seen the case differently, and they plan to continue her fight through the appeals process.
“I think what this ruling fundamentally does is reward schools for not investigating and not responding to sexual assaults on campus,” attorney John Clune said. “Even worse, it rewards them for destroying prior notice of campus rape.”
Clune said in all the Title IX cases he’s been involved in, he has never seen a university take such an “aggressive and retaliatory” strategy against a student alleging she was raped.
Ross, now 22, told The Frontier that her decision to fight back against TU has cost her friendships and left her feeling isolated.
“I feel like I lost my friends, and like my sorority sisters went against me,” she said. “It felt like a punch in the stomach.”
Even with allegations by other women that surfaced as a result of her lawsuit, Ross thinks university officials still don’t believe her.
“You never think that something like this is going to happen to you — and if it does, you think people are going to do the right thing.”
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