How many more? Baylor University faces another sexual assault lawsuit

A former student athlete alleges she was gang raped by at least four Baylor football players, and the University did nothing about it. The Title IX lawsuit joins numerous other allegations of sexual misconduct against Baylor in the last few years.

Photo: Baylor 52 by Hadassa Perez (Courtesy of Google)

Baylor University faces yet another social (and legal) battle as of late May 2017.  Within the last couple of years, the school has become quite familiar with the law surrounding sexual assault and rape.  The most notable headlines arose when the university’s Board of Regents hired an external law firm to perform an investigation that ultimately revealed the athletics department was silencing aggrieved students and mishandling serious behavior infractions, including several accusations of sexual assault and domestic violence.  Soon after, the school’s president, Ken Starr, was removed, and the athletic director, Ian McCaw, resigned. Even the football program’s savior of a head coach, Art Briles, was let go. Before departing, Starr urged the university to embrace transparency and honesty.

Essentially, the claim at issue “accuses the private Christian school in Waco, Texas of fostering a violent sexual culture that enables sexual assaults, creating a hostile environment.”

Now the university faces another claim emerging in the same light.  A former student-athlete filed suit claiming that at least four, and as many as eight, university football players “brutally gang raped” her.  This occurrence is alleged not to be an isolated event, but rather, the suit claims to have been one of many “bonding” experiences for the football players and is accompanied by photographs and videos taken of the girls subject to the assaults.  In total, this is the seventh Title IX lawsuit to be filed against the university.

According to the plaintiff, the assaults happened at parties hosted by the football players and were not reported to the local police.  Furthermore, university officials took steps to misinform the victim about her options to report the assault and the players later harassed her.  Essentially, the claim at issue “accuses the private Christian school in Waco, Texas of fostering a violent sexual culture that enables sexual assaults, creating a hostile environment.”

Since then, Baylor has initiated programs to provide recommendations to the campus community on how to respond to sexual assault, while furthering its own position that assault on its campus will not be tolerated.  Faced with this potential Title IX violation, Baylor may be facing not only legal penalties, but also penalties within the athletics system itself.

Baylor’s Board of Regents has publicly admitted several mishandlings, including that 19 players had assaulted 17 women since 2011, according to the Wall Street Journal.

The question of whether the “death penalty” could be applied to Baylor has been informally raised amongst sport commentators and enthusiasts.  Essentially, this would mean a one to two year-long suspension of the football program.  Earlier this year, 52 paper cut outs were placed around campus with the question, “How many more?” written across them.  These cutouts were made in reference to another lawsuit alleging 52 counts of rape between 2009 and 2015 alone.  While not all of these counts have been confirmed, Baylor’s Board of Regents has publicly admitted several mishandlings, including that 19 players had assaulted 17 women since 2011, according to the Wall Street Journal.  Further, Former Title IX Coordinator Patty Crawford reported during her time at the university from 2014—2016, “hundreds” of women came forward reporting stories of rape, stalking, and sexual harassment and assault.

The “death penalty” is a serious penalty applied to repeat-violators who, within a five-year period, meet certain conditions: a major violation must occur; and a second violation must occur within five years of the start of the penalty applied to the first instance.  When this penalty is deemed applicable by the Committee, the consequences include the following: the prohibition of some or all competition in the sport involved in the latest violation, the prohibition of coaching staff in the violating sport from involvement in any coaching activities, elimination of grants and recruiting activities, resignation and ineligibility of the institution’s NCAA representatives and leadership, and loss of voting rights within the NCAA.

The NCAA’s Committee on Infractions (hereafter “Committee”) decides the penalties to be applied in each situation, in a case-by-case fashion dependent on the facts at hand.  Application of precedent is nearly impossible, as each case arising is typically very different from all others, with individual aggravating and mitigating factors, both of which are considered by the Committee in assessing potential penalties.  Penalties are usually crafted with the intent they be sufficient enough to deter the school from breaking the rules again, and to remove any advantage the school may have unrightfully gained in the process.

More commonplace penalties include public reprimand, while rarely applied penalties extend upwards of banning postseason competition.  While the Committee tries to protect student-athletes who were not involved, the enforcement process generally affects the school on the institutional level.

As Baylor continues to look more like a “criminal conspiracy model,” rather than anything that belongs at a university, the possibility of the NCAA’s most severe punishment is not too far out of reach.

The greatest protection against a penalty being applied develops when the Committee determines a major violation is supported by insufficient evidence.  When the evidence is lacking and the most likely penalties to be applied would be severe, the case is essentially “thrown out.”

The NCAA typically does not like to hyper-publicize such cases, as therein lies a question of authority.  Who can appropriately handle these cases—the NCAA, which is the sports governing body, or law enforcement?  Due to potential overlap between the two entities, the NCAA is extremely cautious in handling only what is surely within its own jurisdiction.  If the NCAA can find that Baylor extended preferential treatment toward the football players’ discipline, jurisdiction will be well established.

The “death penalty” has not yet been raised by the NCAA; however, the NCAA is ready and able to exercise that power as it has shut down two different programs in the last decade.  As Baylor continues to look more like a “criminal conspiracy model,” rather than anything that belongs at a university, the possibility of the NCAA’s most severe punishment is not too far out of reach.  It should be noted, however, that Baylor would not remain entirely powerless were the university to be punished by the Committee of Infractions.  The NCAA had established an appeals process through the Infractions Appeals Committee, which consists of different membership.

Critics of the NCAA doling out punishment have insisted that the university being punished as a whole is not proper, but rather, those immediately responsible should be the ones facing punishment.  Furthermore, the NCAA does not have any rules against the awful things happening at Baylor.  The NCAA has rules (and penalties) specifically tailored to recruiting violations, providing extra benefits to athletes, and similarly crafted legislation meant to keep the athletics divisions of schools accountable to fair play.  It is the state and federal government’s rules and laws against allegations of sexual misconduct which have served as the foundation for the alleged victims of the Baylor athletic “scandals” and lawsuits thus far. The criticism echoing most loudly is that the NCAA is ill-equipped to handle such cases.

The NCAA’s power, though, is given by votes of the participating universities.  Essentially, if the NCAA cannot do anything, it is because the schools’ representatives voted against extending the NCAA that authority.  Those votes were likely cast in fear of such a scandal ever popping up at their own universities.

Former Head Coach Art Briles mentioned, after a reported gang-rape, “[T]hose are some bad dudes… Why was she around those guys?”—setting the stage to blame present (and likely future) victims. Are there any guesses as to where Baylor’s vote went?

Taylor Elkins
About Taylor Elkins (11 Articles)
Taylor Elkins is a third year law student and serves as a Staff Writer for the Campbell Law Observer. Born and raised in Owasso, Oklahoma, Taylor went to Baylor University where she obtained a degree in biology and political science. During her time at Campbell, Taylor has worked at the North Carolina Department of Justice in the Criminal Appellate Division. She won Campbell's Richard Lord Intramural Moot Court Competition, and is now a member of Campbell's national moot court team. She is interested in patent law as well as appellate advocacy.