Why Oregon's Title IX Investigation of Kavell Bigby-Williams's Alleged Rape Stalled Before It Began
Last season, Kavell Bigby-Williams, a 6' 11", 230-pound transfer from Gillette College, averaged 9.8 minutes for an Oregon basketball team that reached the Final Four. He also played the entire season while under investigation for forcible rape.
School administrators maintain that proper protocols were followed and laws were complied with upon learning of the allegation. But according to analysis of public documents and Title IX lawyers who examined the police report and Oregon’s policies, procedures, and explanations, the university violated its obligations under the law and acted at odds with the school’s own policies.
The intersection between college athletes and campus sexual assault allegations may be a distressingly busy one. The fact pattern in the Bigby-Williams matter may be familiar. But the Bigby-Williams situation is more jarring given the athletic program in question. In March 2014, a UO undergraduate reported that she had been sexually assaulted by three members of the school’s basketball team, Dominic Artis, Damyean Dotson and Brandon Austin. The graphic police report detailed alleged assaults at two off-campus locations. Despite the allegations, two of the players remained on the team throughout the investigation, playing through the Ducks’ 24-win season and an NCAA tournament berth. (Austin, who sat out the 2013-14 season as a transfer player with Oregon, had been suspended at his previous school, Providence, after being accused in a separate sexual assault in which no charges were filed.)
The University of Oregon suspended the players from the basketball team in May, after the season ended. In late June—when most students were away and college campus outrage was chilled—the University of Oregon confirmed it had suspended the players from campus for a minimum of four years following an investigation into sexual misconduct.
In early June, the victim offered a blistering criticism of the athletic department and of UO head basketball coach Dana Altman in particular. “I am angry with the culture that appears to exist in our athletic department that prioritizes winning over the safety of our students,” the victim wrote.
“I cannot fathom how our basketball coach recruited someone who was in the middle of a suspension for another sexual assault to come to Eugene.”
The student would sue the University of Oregon, including Altman, for recruiting Austin without regard to disciplinary action at his previous school for a similar accusation. When the suit was settled—Oregon agreed to a payment of $800,000 and free tuition, housing and student fees—Altman’s job was spared and university administrators breathed an audible sigh of relief. “We want to close that chapter and move on to a much happier chapter in our history, as it’s being written,” Oregon president Michael Schill said at the time. “Instead what we do is we focus on ending sexual violence on this campus.” In the wake of this scandal, UO conducted a review of its own policies and implemented numerous new measures aimed at reducing sexual violence, including hiring a new Title IX coordinator. (The three players denied the allegations and no charges were filed.)
Against that backdrop, how, just two years later, was Bigby-Williams allowed to play in 37 games for Oregon after a forcible rape allegation surfaced? How was Altman allowed to keep his fourth player in four years on the roster despite a concurrent investigation of a violent sexual crime? How was it that, despite safeguards to prevent a repeated incident, the school—and the basketball program, in particular—faced another potential scandal?
The answer illuminates the complex policies that schools navigate when presented with an allegation against a student, but an athlete in particular. It illustrates how athletic departments can—and do, willingly—shield coaches from potential adverse news about their players. And perhaps above all, the UO situation exposes the bureaucracy and crosscurrents within a university that can scuttle an investigation.
Title IX may be under siege and Secretary of Education Betsy DeVos may have recently announced plans to review how federally funded schools investigate allegations of sexual misconduct against students—citing concerns that current guidelines deprive due process rights of the accused. But the UO case reveals just how little it takes for a campus investigation to stall.
As junior college transfers go, Kavell Bigby-Williams was as promising as they come. The reigning National Junior College Player of the Year, Bigby-Williams had averaged 16.8 points, 13.6 rebounds and 5.6 blocks for Gillette (Wyo.) College in 2015–16. Originally from London, Bigby-Williams played two seasons in Gillette and joined the Ducks program in the summer of 2016, bolstering a roster already stacked with talent, returning four of five starters from a team that had reached the Elite Eight.
Bigby-Williams transferred to UO in time to join the Ducks during their four-game tour of Spain in late August. Then, for a week in September 2016, he returned to Gillette to visit friends at his old school prior to the beginning of the fall academic term at UO.
On Sept. 28, 2016, the third day of the Oregon fall term, a University of Oregon police department detective, Kathy Flynn, received a phone call from Northern Wyoming Community College District police, who were seeking assistance in a case involving Bigby-Williams. According to an NWCCD police report, Brooke Tibbetts, a campus police officer at Gillette College, was investigating Bigby-Williams for sexual assault in the first degree, meaning the perpetrator either knew or reasonably should have known the victim was physically helpless and could not consent.
The incident occurred the night of Sept. 17, 2016, in a residence hall suite at Gillette College, according to the police report. On Sept. 19 at 5:05 p.m., a friend of the alleged victim contacted police, when she noticed the woman was upset, did not seem herself and had a large bruise on her neck. According to the police report, the friend stated to Tibbetts that the woman thought she had been drugged and raped at a party.
After hearing this account, Tibbetts went to the woman’s residence. Tibbetts explained that she’d received a report that the woman had been sexually assaulted. According to the police report, the alleged victim said, “I don’t know anything and don’t remember anything, so I can’t help you.” But the alleged victim recalled that she had blacked out from 10 p.m. on Sept. 17 to 3:30 p.m. on Sept. 18 after drinking whiskey and vodka, and she did not remember the identity of the attacker.
According to the police report, the woman told Tibbetts that she thought she was assaulted because she woke up naked with soreness and bleeding in her vagina. She went to the hospital afterward and got a pregnancy and STD test, the report shows. She said to Tibbetts that she wasn’t sure how she got the bruising on her neck, but that “it hurt.” According to the police report, the woman told Tibbetts she “did not want to get anyone in trouble.” (In June 2017, Bigby-Williams told police that sex with the woman was consensual. He was not charged and did not respond to multiple requests for comment.)
According to the report, Tibbetts took photos of the bruising and two dark stains on the woman’s sheets and collected her clothes and sheets as evidence. Tibbetts interviewed three of the woman’s roommates who were in the suite the night of the incident. The first roommate told Tibbetts the woman was drunk and throwing up into a trashcan around midnight. Another roommate said the woman was passed out in her bed when she checked on her. Two of the roommates told Tibbetts they questioned Bigby-Williams the day after the incident, after noticing the woman was upset. According to the roommates, Bigby-Williams admitted to having sex with her, but he insisted it was consensual.
Tibbetts was unable to interview Bigby-Williams. Before she had the opportunity, he’d left town to return to Oregon. She called him by phone twice. He picked up the second time but stated it was not a good time to talk, then hung up. Tibbetts texted him, but he did not respond. On Sept. 28, 2016, NWCCD police asked Flynn to conduct a follow-up interview of Bigby-Williams. According to a UOPD report, Flynn “reviewed the police report, texts and photos” from Tibbetts’ investigation.
Flynn contacted Bigby-Williams twice by phone. The player answered the first time, but said he was busy and would call back the next day. According to the UOPD report, he did not. When Flynn called him again, he did not respond and she left a voicemail. About 30 minutes later, according to the UOPD report, Nick Carter, an assistant basketball coach at Gillette College and an attorney in Wyoming, called Flynn and asked her not to contact Bigby-Williams again.
Unable to reach Bigby-Williams, Flynn notified two UO officials about the allegation: Darci Heroy, Oregon’s newly hired Title IX coordinator, and Lisa Peterson, a deputy athletic director and deputy Title IX coordinator. According to UO’s own procedures for sexual misconduct, upon learning of a sexual assault allegation against a student, the Title IX coordinator should notify the school’s director of student conduct and community standards. The first section of UO’s Standard Operating Procedures for Sexual Misconduct reads as follows: “Subject to being notified of a potential Sexual Misconduct violation of the Code, the Title IX Coordinator shall notify the Director.” Yet this step, critical in pursuing a sexual assault violation, was not taken.
Sandy Weintraub, UO’s director of student conduct and community standards, is positioned to play a pivotal role in sexual assault investigations. According to section three of the procedures, he is responsible for consulting with other qualified campus community members, including the Title IX coordinator, to determine whether UO should take emergency action to protect individuals on campus prior to conducting a full investigation. Emergency action may include temporarily suspending the accused student or limiting his or her presence in school activities. UO employs a risk assessment team to serve this purpose. (In this matter, Bigby-Williams could have been suspended without being expelled had UO determined he posed a threat to the community.) According to section seven of the procedures, Weintraub is tasked with determining whether to issue conduct charges against accused students before beginning a full-blown investigation.
When the Title IX coordinators declined to disclose their information to Weintraub, it effectively foreclosed any potential discipline or further investigation. Weintraub and his risk assessment team met to discuss 21 sexual assault cases during the 2016–17 school year, according to UO. The Bigby-Williams case was not one of them.
Questioned as to why the school did not interview Bigby-Williams or disclose the information to Weintraub, UO spokesman Tobin Klinger said in an email on July 18 “the information was insufficient, so it didn’t move through the process you’re referencing.” He said the risk assessment team did not convene because “law enforcement and Title IX were able to make that determination without the need to pull the team together.” While not commenting on this matter, Heroy said, “Sandy doesn’t get notified about absolutely every disclosure that comes in.” She added, “On a particular case, if it’s something that we’re not moving forward with, [and] the victim doesn’t want to move forward, we don’t have enough information necessarily to determine whether or not there’s actually an alleged violation of code.”
Documents obtained by SI, however, show that UO officials were provided with the substantive Wyoming police report on Sept. 28, 2016. The police report contains multiple witness statements asserting that the woman vomited from drinking too much alcohol and passed out in her bed before Bigby-Williams allegedly had sex with her the night of the incident. According to the report, the woman woke up the next day with no clothes on, but having little memory of what occurred the night before. The report included text messages and more than 40 photos, some of which show the bruising on her neck and dark stains on her bed sheets.
For more than a month, UO steadfastly defended its position. In an email Aug. 7, Klinger again cited “insufficient” information. After breaking the original story in the Daily Emerald, the Emerald pressed Oregon president Michael Schill on whether he was aware that Bigby-Williams played the whole season while under criminal investigation for sexual assault. Schill responded: “I don’t have any awareness of that. In any event, I can’t comment on an individual student. What if I was asked by another reporter about you being obnoxious? Would you want me to tell them that?”
Largely in response to the highly publicized gang-rape allegation against the three Oregon basketball players in 2014, UO enacted a new policy in the subsequent months. In 2016, UO appointed Heroy to coordinate the school’s response to sexual assault allegations in compliance with federal Title IX law.
That UO failed, it appears, to follow its own policy disturbed two Title IX lawyers. “There is a reason why they have these policies. They should have to follow them,” said Jackie Swanson, a Portland-based attorney who has shaped Oregon state laws relating to sexual assault victims’ rights. “That, I think, is especially true because it’s at a public university. Students should have the right to expect that this university is going to follow at least its own published policies.”
“The point of Title IX is not to pay lip-service—you have to have policies and those policies have to be implemented, too,” said Carly Mee, an attorney for SurvJustice, a nonprofit that provides legal assistance to sexual assault survivors. “It’s problematic not to follow the procedures because you have to have something reliable for students. There’s no point in going off the books.”
A spokesman for the U.S. Department of Education, the government agency that enforces Title IX, said via email: “When a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate steps to investigate or otherwise determine what occurred. If an investigation reveals that sexual violence created a hostile environment, the school must then take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.”
The spokesman said a school is not obligated to investigate allegations about sexual assaults “if the school has determined that the complainant is not a student and the alleged incident did not occur on campus or in the school’s education programs or activities.” But UO’s student conduct code states that UO “extends jurisdiction without exception to off-campus sexual misconduct that consists of unwanted penetration or non-consensual personal contact.”
Swanson, who reviewed the police report and UO’s policies at the request of SI, said she could not say whether the information was sufficient because UO never defines “sufficient” in its policies. “It’s such a vague term the way they’re using it, and that, in and of itself, is part of the problem here,” Swanson said. “The question is: If a 38-page police report is ‘insufficient,’ then what on earth do you need?”
SI presented details from the Wyoming police report to UO—including the multiple witness statements and dozens of photographs—and sought comment from UO as to why the information was characterized as “insufficient” to follow the procedures. Klinger, again, initially responded, “You have our official comment. We’ve said all there is to say.”
SI then presented to UO evidence that Flynn, the detective, had “reviewed the police report, texts and photos” from the Wyoming case. Again the overarching question: why was this apparent abundance of information still considered “insufficient” for taking the first step in an investigation?
Klinger provided a statement from UOPD Chief Matt Carmichael, speaking on behalf of the department. “The material received from NWCCD (Gillette College) Police made clear that this was a third-party complaint, that the alleged victim did not see herself as a victim of a crime, and she clearly wanted to be left alone. The voice of a survivor is the key to an investigation. The other material provided did not undermine or invalidate her words.”
Yet, even if the alleged victim did not want to be involved in a Title IX investigation, section four of UO’s standard operating procedures outlines steps school officials should take to determine whether to continue the investigation without the alleged victim’s participation. It states that officials should “take all reasonable steps to investigate and respond to the complaint consistent with the request not to pursue an investigation.”
“They have policies and procedures in place for dealing with non-participating victims, which makes that excuse a little bit suspect,” Swanson said. “Just because a victim, or even a suspect, doesn’t want to participate in the investigatory process, isn’t an actual excuse for their failure to do their due diligence there.”
Added Mee: “You still have to make it through the other steps in the procedures before you can decide whether to take the victim’s wishes into account.”
Even if UO had followed up in accordance with its procedures, the athletic department still may not have been formally notified of the allegation. That is because it is UO’s practice not to notify the athletic department when student-athletes are accused of sexual assault, according to Klinger.
“Our approach is considered by Title IX experts as best practice to preserve the integrity of sexual assault investigations,” Klinger said. “When these best practices are not followed, institutions put themselves at risk of tainting investigations and we want to safeguard that from happening.”
Oregon State University and Arizona State University both require notification to athletic department officials if a student-athlete is accused of sexual misconduct, according to spokespersons. University of Washington’s student-athlete code of conduct requires the athlete to notify his or her coach if there is an accusation of a crime, a spokesman said. At UO, however, athletics officials are not notified.
Peterson, the athletic department official Flynn notified of the allegation against Bigby-Williams, did not tell other athletic department officials, according to Klinger. She would have only done so if it was “deemed necessary to take some action with respect to the student-athlete that requires the participation of the coaching staff, such as a decision that would impact the student’s status as an athlete,” Klinger said. (Peterson, through Klinger, declined a request for comment.)
According to Oregon athletic department spokesman Greg Walker, Altman knew police were trying to contact Bigby-Williams but didn’t know what it was about. Altman made a similar claim in May 2014, after news broke that Eugene police were investigating three now-former basketball players for allegedly gang-raping a female student. At the time, he told reporters during a press conference he knew “an incident” was being investigated; but he did not know the nature of it or which of his players were involved or that it was a criminal matter.
In 1998, Brenda Tracy, then 24, was allegedly gang-raped by four men including two Oregon State football players. Now an activist and advocate for sexual assault survivors who works directly with college athletes and athletic departments, Tracy calls UO’s failure to move forward in the Bigby-Williams allegation “inexcusable” and “infuriating,” especially given recent history. “It’s horrifying to me that we are seeing the exact same thing play out again,” Tracy said. “Again, it’s ‘I didn’t know. I didn’t have anything to do with it. I didn’t have any responsibility. It’s not my fault.’ That needs to be removed from the equation. That’s not acceptable and that’s not O.K. for that to happen a second time.”
“We created a policy to keep everybody safe, to have accountability measures and to make sure that we’re doing our due diligence and doing a good job,” Tracy said. “For us to just violate the policy is a betrayal. It’s horrible. It does not set a good precedent. It’s not pushing us in the right direction of shifting this culture toward transparency and accountability. It’s basically saying, ‘We’re going to act like we care about student safety, but really we don’t.’”
Campus sexual assault experts are split on this policy of not notifying athletic department officials about alleged sexual misconduct against players. Some, like Tracy, believe it creates plausible deniability and keeps coaches in the dark about their players’ alleged misdeeds. Others applaud the policy, asserting that the involvement of coaches—figures often imbued with tremendous power and influence on campus—risks compromising an independent investigation.
In the case of Bigby-Williams, he did not make a statement to police in Wyoming until June 2017, two days after news broke that he was under criminal investigation for sexual assault. According to the police report, he told NWCCD police that he had sex with the woman that night, but said it was consensual and that he did not know the woman was sick or drunk. He said the marks on her neck were hickeys, and he did not do anything to cause physical harm to the woman. NWCCD police forwarded the case to the County Attorney, Ron Wirthwein, who declined to press criminal charges on July 26, citing “the victim’s wishes and some of the circumstances surrounding the case facts.”
On Aug. 19, Bigby-Williams officially transferred to Louisiana State University. “At this point in my career, it’s solely a business decision and was a very important one going forward,” Bigby-Williams wrote on Twitter, an account now private, when he announced his intent to transfer to LSU in June. “Thank you to all the schools who were recruiting me and showing interest in me.”
According to an LSU press release in August, “the university conducted a responsible and comprehensive review before approving the transfer, including close coordination with Title IX officials, multiple discussions with Gillette and Oregon officials and a thorough examination of available public records.”
“This is an issue we all take seriously and we made absolutely sure we did our due diligence before considering moving forward,” LSU basketball coach Will Wade said in the release. “Kavell understands that and has made clear to me that he’s going to repay our confidence by representing LSU with his very best on and off the court.”
In September, DeVos made public comments to roll back the “failed policy” of how campuses investigate sexual assault allegations. In the wake of this, on Sept. 24, UO president Schill and Heroy, the Title IX Coordinator, sent the following release titled “New Title IX guidelines to have little effect on university policies” that began:
“Dear University of Oregon community,
The U.S. Department of Education on Friday provided new interim guidance on Title IX, the federal law that prohibits sex- and gender-based discrimination in education, which includes sexual harassment and violence.
As was clearly stated in a recent reaffirmation of the University of Oregon’s strong commitment to Title IX, the new federal guidelines in no way erode our resolve to provide services to survivors, encourage those who experience sexual violence to seek help, and to be fair and equitable to all, including those accused.”