The sexual assault controversy involving the Baylor University football program has rocked the sports world over the last year. A new lawsuit filed on Friday contends that the controversy was much more extensive and disturbing than previously known. The lawsuit also suggests that Baylor’s ambition to move past the controversy may be slowed dramatically by lawsuits and accompanying litigation.
Elizabeth Doe’s account
On Friday, a Baylor graduate identified by the pseudonym “Elizabeth Doe” sued her alma mater in the U.S. District Court for the Western District of Texas, alleging that she was the victim of a group rape perpetuated by two Baylor football players and subsequently ignored by Baylor administration. Doe seeks unspecified monetary damages for a wide-range of alleged injuries.
The alleged incident took place on Apr. 18, 2013 and in conjunction with Baylor University’s annual party known as “Diadeloso”—which is Spanish for “The Day of the Bear.” As promoted on Baylor’s website, Diadeloso represents a day where classes are not held and students are encouraged to have fun with other members of the Baylor community. Various activities and games, such as tug-of-war and bowling, and numerous food options are made available. Diadeloso is also known to encourage parties organized separately by students. Some of these parties involve unsanctioned and underage consumption of alcohol, a point that connects to Doe’s lawsuit.
Doe, a sophomore at the time, was a member of Baylor’s “Bruins” hostess program. Baylor is by no means the only university to use a hostess program. These programs tend to involve female students acting as tour guides for football recruits and their families. Hostess programs have come under fire in recent years for a number of reasons, including for concerns that they objectify women and that some hostesses are encouraged or directed to engage in sexual acts with recruits.
Doe says that she attended a Diadeloso party at the off-campus apartment of Shawn Oakman, who at the time was a star defensive end for the Bears. Oakman currently faces a felony sexual charge in Texas for a separate incident. Doe’s complaint stresses that while Oakman’s apartment was off campus—a point, as explained below, Baylor is poised to highlight—Baylor allegedly arranges for football players to live in his apartment complex, Outpost Apartments. While at Oakman’s party, Doe recalls becoming “very intoxicated”—so intoxicated that she did not remember two freshman football players, Tre’Von Armstead and Shamycheal Chatman, escorting her from Oakman’s apartment to her own apartment, which Doe’s complaint implies was also off campus.
The alleged rape took place while in Doe’s apartment, where, according to Doe, a boyfriend of Doe’s roommate heard “a slapping noise accompanied by hearing a woman’s voice loudly saying ‘no.’” Doe contends that the roommate’s boyfriend then confronted the 6’2, 220 pound Chatman and the 6’7, 311 pound Armstead, who allegedly stared down the boyfriend. The boyfriend then looked into Doe’s room, where, in Doe’s retelling, he observed a partially unclothed Doe who was in dire need of help. After Chatman and Armstead left the apartment, the roommate’s boyfriend called 911.
From there, Doe insists, Baylor was responsible for trying to cover up a rape. Doe says that before the Waco Police Department arrived, another Bruin hostess hastily entered Doe’s apartment and implored Doe to deny that a rape had occurred. This hostess, according to Doe, advised Doe to tell the police that she had consensual sexual intercourse with a white male (both Chatman and Armstead are African-American).
When the Waco police arrived, Doe apparently implicated Chatman and Armstead and the officers observed a bite mark on her neck and a bruise on her cheek. Nonetheless, the police allegedly determined there was insufficient evidence to take further action, other than offering Doe the option of placing the investigation in a suspended status. Doe says the Waco Police never bothered to interview either Chatman or Armstead. While the Waco Police did notify the Baylor campus police of the allegation, Doe says Baylor took no action. Chatman would transfer at the end of the spring semester to Sam Houston State University, where he played football. Armstread remained and would earn Big-12 honors in 2014, though would be expelled in 2016 for unspecified reasons (Baylor’s ability to reveal explanations for student dismissals may be limited by the Family Educational Rights and Privacy Act, or FERPA).
Doe contends the alleged rape caused her substantial personal turmoil, particularly when running into Armstead on campus. She said she suffered frequent panic attacks, nausea and hyperventilation. The alleged rape also impaired Doe’s ability to concentrate and her grades suffered as a result. To this day, Doe says, she suffers severe mental anguish and has suffered a loss of past, present and future enjoyment of life.
Doe’s complaint explains that her decision to sue Baylor in 2017 for an alleged incident that took place in 2013 stems in part from Doe, who graduated in 2014, learning about the creation of a new Title IX office at Baylor in 2015. Doe says she contacted the office, which (again, according to Doe) hired an outside adjudicator to review the matter and the adjudicator found that Armstead had raped Doe.
Doe links her alleged rape to a portrayal of Baylor as indifferent to rape by football players
A central theme in Doe’s complaint is that her experience was emblematic of a culture where Baylor football players repeatedly raped female students. They did so, Doe contends, without fear of serious punishment or other meaningful consequence. This absence of accountability, Doe reasons, stems from a university decision to adopt a win-at-all-costs mentality. Under head coach Art Briles, who sued university officials last month relating to his dismissal earlier in 2016, Baylor recruited some of the nation’s best available high school talent and proceeded to dominate the Big 12 Southern Conference from 2011 to 2014. The recruitment of more talented players came with a tradeoff, however: it led to admissions decisions where the moral character of recruits was accorded a much lower priority than Baylor had previously demanded from its football recruits. Making matters more problematic for Baylor, Doe argues, the university turned a blind eye to the football players’ misconduct. As Doe details, such a dynamic posed a campus safety issue as well an undermining of the moral code of a religiously affiliated institution.
A significant portion of Doe’s complaint is devoted to detailing this culture. For instance, according to Doe:
From 2009-2015, Baylor football players were responsible for numerous crimes involving violent physical assault, armed robbery, burglary, drugs, guns, and, notably, the most widespread culture of sexual violence and abuse of women ever reported in a collegiate athletic program.
Doe pleads numerous other details, the most notable being her belief that there were at least 52 acts of rape, including five gang rapes, by at least 31 Baylor football players from 2011 to 2014. Doe offers these statistics based on an assurance that they stem from her investigation, the methodology of which she does not detail. Doe adds that coaches and athletic department staff undertook various measures to discredit valid complaints and interfere with the transmission of those complaints to university officials. Further, Doe stresses that the coaches employed recruiting tactics that blended racism and sexism. Assistant Coach Kendall Briles, according to Doe, told a recruit, “Do you like white women? Because we have a lot of them at Baylor and they love football players.”
Doe’s account is thematically consistent with other accounts of sexual violence committed by Baylor football players. This topic was the subject of an internal Baylor investigation conducted by the law firm Pepper Hamilton and a noteworthy 60 Minutes Sports special last November. It should also be noted that Doe’s lawsuit is not the first by former Baylor students who allege football players sexually assaulted them. For instance, Jasmine Hernandez sued the university and Briles in connection to her being raped in 2012 by then-Baylor football player Tevin Elliott.
Doe’s theories of liability against Baylor
Doe’s lawsuit contains six claims that fall under two basic categories: Title IX and negligence.
Title IX is a 1972 federal law that is often discussed in the sports context for a reason unrelated to Doe’s case. Title IX prohibits education programs that receive federal funding from discriminating on the basis of sex. Title IX thus requires almost all college athletic programs to provide roughly equal opportunities to male and female student athletes. Title IX has other important functions, however, including those related to Doe’s case. Namely, Title IX holds schools accountable for failing to remedy sexually hostile environments. Along those lines, Doe insists that Baylor was “deliberately indifferent” to her alleged rape so that the university could protect the football program and its players. She also attributes various policies to Baylor as worsening a culture of rape. As taken directly from her complaint, those alleged policies include:
- Policy of No or Little Discipline for Football Players;
- Policy of Interference with Female Students’ Access to Help;
- Policy of Enacting a Separate System of Discipline for the Football Team;
- Policy of Not Reporting Allegations of Sexual Violence and Dating Violence;
- Policy of Diverting Cases Away from Student Conduct or Criminal Processes;
- Policy of Not Educating Staff/Students;
- Policy of Accepting Football Players with Histories of Violence Toward Women;
- Policy of “Show ‘em a good time” in Recruiting; and
- The use of a sexually hostile football hostess program.
Doe’s negligence claims raise similar points, but are structured differently so as to comport to pleading viable negligence claims. In that regard, Doe insists that Baylor had a duty to protect her (and other female students) and breached that duty through a lengthy and disturbing record of unreasonable conduct. Indeed, Doe contends that the university failed to supervise football players and failed to respond to complaints that those players raped women.
Baylor’s potential legal defenses—including the relevant statutes of limitations—and possibility of a settlement
As with any lawsuit, be mindful that what is alleged in a plaintiff’s complaint is a depiction of facts and depictions that may turn out to be false, inaccurate or embellished. In answering Doe’s complaint, Baylor will almost certainly deny much of what she contends. For example, Baylor will likely object to Doe’s belief that at least 52 rapes by at least 31 players occurred. The university will demand that Doe detail how she arrived at these numbers and what, if any, assumptions she made in her math.
Baylor will also depict its conduct in a much more favorable light than Doe describes in her complaint. Baylor, for instance, might insist it initially investigated Doe’s claims but did not find them sufficiently credible. Baylor is also poised to point out that the Waco Police Department did not charge Chatman and Armstead.
In addition, Baylor will likely argue that Doe’s complaint is barred by the passage of time. Texas law stipulates a 2-year statute of limitation for negligent claims. Also, under Title IX, state law dictates the relevant statute of limitations. Courts have indicated in that Title IX claims in Texas have a two-year statute of limitations. Two years is key: Doe brought her case 3 years and 9 months after the incident. Normally if a plaintiff fails to file a claim within the relevant statute of limitations, the claim is forfeited.
Doe, however, might argue that the period of time for her to sue ought to be extended because her alleged harm occurred within a pattern of similar harm—other female Baylor students allegedly being sexually assaulted by Baylor football players—and that such a pattern may have continued to some point within the last two years, meaning within the statute of limitations. This would be an important point for Doe because courts sometimes decree that the relevant statute of limitations do not begin to accrue until the wrongful conduct ends. Whether a court would make such a determination for Doe is uncertain.
Baylor’s potential defenses also include rebutting Doe’s theory of duty. While Doe charges that Baylor officials arranged for the football players to live in specific apartments off-campus, universities normally have reduced vulnerability to liability when incidents occur off campus as opposed to on-campus.
As a final point, consider there other parties who have a vested stake in the outcome of Doe’s case. Baylor’s insurance companies, for instance, may be on the hook to pay Doe if she prevails in the litigation. Those insurance companies might encourage Baylor to consider settling the lawsuit, particularly if a lengthy litigation might, through pretrial discovery, reveal unfavorable information about the school and its officials. Also, the NCAA is likely keeping an eye. While the NCAA appears unlikely to punish Baylor since the sexual assault controversy concerns a criminal issue rather than an athletic matter, the closer the controversy gets to athletic officials, the greater risk for Baylor that the NCAA intervenes. For that reason, Baylor might regard a possible settlement with Doe as worthy of exploration.
Michael McCann is SI’s legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.