Attorney Domenic J. Lombardo says that SDSU Officials refused to allow him access to their evidence that he needed to exonerate his client.
Morgan Kessler, <a href="http://www.iwishihadapenguinfriend.com/">iwishihadapenguinfriend.com</a>
A few minutes before 2 p.m. on December 9, 2014, campus police officers cordoned off the exits and entrances to San Diego State University’s Adams Humanities Building. Police cruisers surrounded the building as students walked toward their classrooms. Inside the building, then-20-year-old Francisco Paiva Sousa stood in the hallway waiting for his Western Civilization course to begin.
A police detective approached Sousa and told him he was a potential witness to a crime. He asked Sousa to accompany him and then handcuffed him. At that moment Sousa saw several police officers walking toward him from both ends of the hallway.
Francisco Paiva Sousa
Sousa was taken to campus police headquarters. He sat inside an interrogation room waiting to answer questions about the crime he allegedly witnessed. As he waited, at 3:40 p.m., administrators sent a mass email to students and staff informing them that police had arrested Sousa for sexually assaulting a female student during a party the previous Sunday at the Theta Chi fraternity house.
The message read: “The victim identified the suspect and, after extensive investigation by detectives, police arrested SDSU student [Sousa] for PC 288A(C) (A)- oral copulation with force, and PC 236- false imprisonment with force. Sousa is in custody and being held at the San Diego County Jail.”
The “extensive investigation” described in the email was completed before interviewing Sousa. At approximately 4 p.m., two hours after being apprehended and nearly half an hour after the email was sent, detectives began their interview.
Officers told Sousa a female student had filed a complaint against him for forcing her into giving him oral sex inside a bathroom stall during a party at a frat house.
Campus police mistakenly thought the alleged sexual assault happened at this old Theta Chi Fraternity House.
Sousa actually encountered the involved female student here, an off-campus house where a few fraternity members lived.
In her statement to police, the young woman, known only as Jane Doe, said she barely knew Sousa before running into him in the upstairs bathroom. She told campus police that Sousa grabbed her and violently kissed her. She said she did not remember pulling away; however, when the kiss ended, the two left the bathroom and returned to the party downstairs. Some hours later Jane Doe and Sousa, holding hands, returned to the same bathroom stall. It was then, according to her complaint, Sousa overpowered her.
Current Theta Chi frat house
Sousa remembered it differently. He told officers that it must have been a misunderstanding. He and the woman had hooked up prior to December. She had given him oral sex just weeks before at the same house in November. He had a picture on his phone from that night of the two kissing. As a reminder in his phone next to her contact information, Sousa wrote, “bico sigtopia” — “bico” is Portuguese slang for blow job, “sigtopia” the name given to the house where the encounter took place.
He had Facebook messages that showed the two had planned to meet at the party that night. On his phone were text messages from her after the party when the alleged assault had occurred. She told him she had lost her shirt at the party and then thanked him and wished him a “good night.”
There were other inconsistencies. Campus police were wrong about something else: the encounter did not take place at the Theta Chi frat house but at a house off-campus where some members lived.
After an hour or so, Sousa was arrested and transported to the San Diego County Jail. Outside the jail a Fox News television crew was staked out for his arrival. He was booked on suspicion of forced copulation and false imprisonment at 6:44 that evening, three hours after San Diego State officials sent the email. He spent the night in jail.
From his parents’ house in Portugal, Sousa recalls the embarrassment of having his friends watch as campus police carted him off. He remembers trying to convince officers to look at the evidence. Most of all, he shudders at the thought that his family and friends in Portugal woke up on December 10 to news headlines about his arrest.
Sousa barely mentions the girl who accused him. He directs his frustration toward San Diego State University more than anything.
SDSU campus police headquarters
Months before his arrest, the California State Auditor’s office blasted San Diego State University for failing to report sexual assaults on campus and for mishandling investigations. In September, a group of students demonstrated on campus upon learning that there were three reported sexual assaults on campus within 21 days. Less than two weeks before Sousa’s arrest, members from two fraternities heckled student activists as they marched during an anti-rape protest on November 21.
“Although the false accusations took place on a Sunday, they waited until Tuesday to arrest me. Not long after students invaded the president’s office complaining about the school’s inaction regarding sexual assaults. What a coincidence. I should have been innocent until proven guilty, not guilty to fulfill a political agenda.”
The manner in which police handled the investigation, says Sousa, shows they were more concerned about political pressure than with investigating the facts of his case.
“The police knew my schedule and where I lived, but they didn’t go to my house or talk to me or any of my friends, they came to get me from school. Honestly, when the officers started asking questions I thought I may be able to make it back to my class. Then I realized it would take longer and maybe I wouldn’t be home before dinner. I never imagined I would have to spend the night in the jail.”
During the interview Sousa remained optimistic.
“Once I knew what I was being accused of, I thought it would be a matter of time until I had cleared everything up. At that time I could never imagine how destructive and devastating this would become....
“This could have all been avoided had they given me the chance to show proof. The investigation was so poor, and the way they handled it so unprofessional, that they got the wrong address. Police officers didn’t go to the place where the accusations took place. If they had done so, they would have found many inconsistencies in the girl’s statement.”
Upon entering jail, Sousa was interviewed again, this time by San Diego police detectives.
“I felt very uncomfortable with their manners and the rude way they were interviewing me. It seemed to me they were trying to make me contradict myself. As I began talking I also began recalling details and I told them everything I could remember, hoping that they could check it and immediately conclude about my innocence. They looked very surprised with some of the things I was telling them.
“But, to my surprise, they took me to a cell. First they placed me in the worst section of the jail, I think, where serious criminals were, where the real rapists and murderers were. Luckily, the jail guards figured out that I was unlikely to do such a crime, and they must have also feared for my safety. They separated me and gave me my own cell. However, in jail I never lost hope. I knew the truth was on my side and I trusted I was able to prove it. And I was right.”
Sousa’s optimism morphed into anger and disbelief upon his release from jail.
“The real nightmare started when I talked on the phone with my friend’s father, the one who paid my bail, and he let me know that the news was spread all over. I cannot imagine the suffering of my family back in Portugal to learn what happened through the news. When I was arrested my family was sleeping, and when my mother woke up, discovered what happened and phoned the jail. It was already nighttime in San Diego, and they didn’t let her talk to me. She had to wait to talk to a lawyer and seek help. The first time I talked to my parents was just after being released.”
Cases such as Sousa’s are not unusual. In fact, they are commonplace. The problem, say legal experts, is Title IX, the federal law that requires colleges and universities — any institution that receives federal funding — to investigate and prevent sexual discrimination, including sexual assaults, on campus and by its students.
Implemented in 1972, Title IX grants authority to college staff to investigate and adjudicate sexual assaults and other forms of sexual discrimination on and off campus. The Clery Act, an accompanying measure, requires that statistics on sexual assaults be collected and reported annually. Lawmakers have amended the Clery Act several times, most recently in 2013. The amendments require colleges and universities to promptly respond to reports of sexual assault and violence in addition to conducting “fair and impartial investigations.” University administrators were also granted authority to notify students and faculty if an alleged perpetrator poses serious threats to the “campus community.”
Since passage of the Clery Act in 1990, the statistics show the growing problem of sexual assaults on college campuses throughout the country. In a 2007 study, the National Institute of Justice found that “1 in 5 women are victims of completed or attempted sexual assault while in college.”
In 2011, the White House called on colleges and universities to ramp up prevention and eliminate sexual discrimination on and off campus. University administrators have responded, sometimes at the expense of justice and basic rights for those accused. While trying to stop sexual discrimination at federally funded institutions, Title IX and the Clery Act essentially strips law enforcement of its authority and anoints university staff and administrators to become judge, jury, and enforcer.
“Are these universities equipped to investigate major crimes? is the main question,” says Sousa’s attorney, Domenic Lombardo. “Sometimes it’s not a black and white situation. Investigations can take a variety of different directions, and you need to have somebody in place that understands the nuances and how to evaluate certain pieces of evidence. It is my belief that, at this point, San Diego State does not have that person or is not equipped to deal with these types of cases.”
During the course of that past year, San Diego State University is not the only university in town blamed for botched Title IX investigations and unfair sexual assault hearings. The problem is so rampant that two other local colleges, University of California at San Diego and the University of San Diego, have had to defend their treatment of Title IX offenses.
In the case of UCSD, a judge ruled that a student was deprived of a fair trial and was punished for appealing his suspension.
In Sousa’s case, San Diego State University rushed to identify him as a threat to the community without an adequate investigation.
In the days following his release, San Diego State University’s Center for Student Rights and Responsibilities, the department in charge of following Title IX laws and investigating assaults, pressed forward in its discipline of Sousa.
At the same time, director of the Center for Student Rights, Lee Mintz, placed Sousa on interim suspension and barred him from stepping foot on any California State campus unless it was to attend hearings. He was not allowed to take final exams. Most troubling of all for Sousa, he was not allowed to review the allegations or any witness statements.
On December 12 through December 18, Sousa and his attorney requested to meet with Mintz to show her evidence that could potentially exonerate him.
After first agreeing to a meeting, on December 19, Mintz sent the following email, “Due to the ongoing investigation, I am unable to provide you with a copy of the information that was/is the basis for the Title IX interim suspension and disciplinary proceedings.”
That same week, Mintz informed Sousa he would not be granted a hearing. Sousa later sued San Diego State to get a copy of the investigation findings. In that suit, he claimed Mintz told him “that he would not be entitled to a hearing on the Title IX portion of the matter, he would not have the right to confront his accuser, he has no right to direct participation of counsel, she would make findings of fact and reach conclusions of law and mete out a sanction, and he would not be entitled to an appeal.”
Nothing changed after the university’s holiday break. Sousa’s attorneys continued to request meetings with Mintz in order to provide evidence and see the complaint. Mintz refused to meet or respond to the emails.
On February 11, 2015, the San Diego County District Attorney’ s office announced they dismissed charges against Sousa.
The damage had been done. Sousa remained labeled a sexual predator in the eyes of former friends and acquaintances. After enrolling in a different college, Sousa returned to San Diego State University to visit friends. During a night out, three days before the district attorney dismissed the charges, three individuals jumped him. Those individuals are now in court on assault charges.
The district attorney’s decision not to prosecute had no effect on Mintz and San Diego State University. Despite the announcement, the college trudged on with their scheduled hearing, still refusing to allow Sousa or his attorneys to submit evidence.
On June 5, seven months after his arrest, Lombardo received a “Notice of Investigative Outcome.” San Diego State University’s panel revoked Sousa’s suspension and expunged any mention of sexual assault on his school records. They did so after finding inconsistencies between the girl’s statements to police and to the university.
Three days later, on June 8, attorney Lombardo and Sousa had a chance to inspect the investigative file. Lombardo and Sousa are now deciding whether or not to file a lawsuit for punitive damages.
Says Lombardo of the case, “The staggering incompetence of the university police in combination with university officials branding Francisco a sexual predator caused incalculable damage to this young man’s future. If Francisco did not have the resources available to defend himself he would have been crushed by the very officials and procedures that are in place to protect him. I fear for the next kid that’s wrongfully accused and wish him or her the best of luck.
“I would say there are obvious deficiencies in the training experience and skill level of some of the law-enforcement officers present at the university compared to San Diego Police Department Sex Crimes detectives or the District Attorney’s Office.
“What should have happened is that law enforcement had his and her statements and they could have accessed their cell phones and got a complete picture before sending an email labeling him a sexual predator before suspending him, arresting him, making him spend the night in jail — really, before any of it.
“The university had a tiger by the tail; they were dealing with an apparently false accusation. Perhaps they thought the district attorney was going to spearhead the investigation. When that didn’t happen, it was thrown back to the university to handle this thing properly and with some integrity. They weren’t prepared to do that. One, the university investigation, as I’ve said, was woefully deficient. Two, the California State Chancellor had just issued an executive order outlining Title IX guidelines. I don’t believe San Diego State knew just how to implement those guidelines.
“I’ve been practicing law for 23 years,” Lombardo continues, “and I have never seen anything like this. The due process problems are so significant and fundamental that they can’t be overstated. You have to go back to the time of the Magna Carta to find similar problems, where you have a secret tribunal, no access to information, no meaningful way to challenge the information, and are not allowed the direct assistance of an attorney.”
There are other complaints from accused and accuser from San Diego campuses over faulty and failed Title IX investigations.
On July 10, San Diego County superior court judge Joel Pressman issued a judgment that could spell change throughout the University of California system. In his ruling, Pressman found that UCSD administrators failed to conduct a thorough and fair investigation into sexual assault allegations against a male student. Administrators then increased sanctions against him for appealing their decision.
In that case, a female student accused a 20-year-old male, known as John Doe, of inappropriately touching her one morning in February 2014. The alleged perpetrator told investigators that the couple had sex the night before and, the morning after, the alleged inappropriate touching took place. But John Doe was not allowed to provide evidence at the hearing nor was his interview with investigating officers submitted to the panel hearing his case.
Without hearing any evidence from him, UCSD’s Title IX panel suspended John Doe a full semester and ordered him to avoid any contact with the woman, attend sexual harassment classes, and undergo counseling. Unsatisfied, Doe appealed the ruling to dean Sherry Mallory. Mallory then increased his suspension from a semester to a year. Doe appealed to the council of provosts. They denied his appeal and suspended him an additional semester.
“The Court finds that substantial evidence does not support the finding of non-consensual sexual activity,” reads Judge Pressman’s July 10 ruling. “First, as stated above, crucial findings...were based upon [the officer’s] investigation summary that was not presented at the hearing in any meaningful way. Given the fundamental unfairness of relying on this report without a meaningful opportunity for petitioner to challenge its contents, the court has no choice but to exclude the report from consideration in evaluating whether substantial evidence exists to support the conclusion.”
Added Pressman, “The only evidence presented in any meaningful way at the hearing was the testimony of [the woman]…. Additionally, Ms. Roe admitted that she voluntarily continued consensual sexual activity with Mr. Doe later that very same day. The court is not weighing Ms. Roe’s credibility. But the incident on the morning of February 1 cannot be viewed in a vacuum. When viewed as part of the entire narrative, the sequence of events do [sic] not demonstrate non-consensual behavior. What the evidence does show is Ms. Roe’s personal regret for engaging in sexual activity beyond her boundaries.
“Given the lack of rationale by both Dean Mallory and the Council of Provosts for the increased sanctions, it appears the increased sanctions are punitive towards Petitioner for appealing the decision of the Panel,” ruled Pressman.
It is unknown whether the University of California regents will appeal the ruling.
Matthew Haberkorn says it is “obvious that universities should not be handling these types of allegations.”
One of the attorneys in the case, Matthew Haberkorn, echoed many of the concerns that attorney Lombardo found in his client’s case.
“First and foremost, when you look at cases individually, it becomes obvious that universities should not be handling these types of allegations. The schools, which all have different interpretations of Title IX law, are essentially caught in a quagmire of having to try these serious cases. Regardless, they are in that position and need to do it in a fair and in a legal manner. Most of the schools seem inept and in the process they are denying basic rights to the accused. The accused are presumed guilty, some are not allowed attorneys, or present evidence in their case. It all just boils down to the fact that universities aren’t equipped to be doing this and because of that students are kicked out of school, often unable to get readmitted to other schools or unqualified to be accepted into grad school. These are often good kids who, if given the chance, could have proved their innocence.”
Haberkorn says since the ruling several other students contacted him asking to represent them for similar allegations.
“As for the proliferation of these types of cases, we are just seeing the tip of the iceberg. The ruling in San Diego was the first one to get public attention. Finally, it appears that judges are starting to realize that maybe schools shouldn’t be handling these types of sexual assault cases, any criminal cases for that matter.
The accused are not the only students to have filed complaints against universities and colleges for mishandling sexual assault investigations. At the University of San Diego, two women filed separate lawsuits against the college.
A female student who was reportedly raped by a male in her dorm room filed the first complaint, which was unsealed in July 2015. According to that complaint, after the assailant fell asleep, the woman escaped and reported it to campus security guards. But they dissuaded her from reporting it to the San Diego Police Department.
“The public safety officer, an employee of [University of San Diego], asked [Jane Doe] if she wanted to contact the San Diego Police Department, but simultaneously recommended that Doe not contact [the police] because it would interfere with [their] investigation.”
The woman went to the hospital for treatment. While there, University of San Diego security guards allegedly went to the woman’s room and woke the accused rapist to inform him of the allegations. A school counselor advised her to leave school. She moved to the East Coast. The school then notified her of her Title IX hearing. She asked for it to be postponed so she could return to San Diego. University officials denied her request.
In May 2013, two men allegedly raped a woman during a party near campus. She told a school counselor and her psychologist. The following semester, one of the men was in her class. She notified her professor. The instructor, according to a subsequent complaint, advised her not to report the rape to police, telling her that accusations of rape “happen all of the time” and many students “handle the incidents on their own.”
(corrected 9/3, 11:15 a.m.)