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Should the Colts have handled the Bobby Okereke Allegations Differently?

NCAA Football: Oregon State at Stanford Stan Szeto-USA TODAY Sports

Over the past 48 hours or so, you’ve probably heard some Colts fans complain about the team’s handling of 2019 third round pick Bobby Okereke’s sexual assault allegation and how disappointed they are in GM Chris Ballard. Those complaints, at first glance, are entirely warranted.

However, much of what has been written doesn’t tell the entire story.

We all became aware of the sexual assault allegations on Wednesday after The Fountain Hopper (FoHo), an independent student-run newspaper not affiliated with Stanford, acquired documents and published a story naming Okereke as the football player detailed in a New York Times article in December 2016. The New York Times (NYT) did not name the woman or Okereke in their reporting.

It is unclear how FoHo obtained these documents.

Under Title IX, these documents are generally considered confidential and are not disclosed to the public. The revised guidance for Title IX states, “. . . a school should be aware of the confidentiality concerns of an accused employee or student. Publicized accusations of sexual harassment, if ultimately found to be false, may nevertheless irreparably damage the reputation of the accused.” This confidentiality standard is applied in order to respect the Due Process Rights of the accused. If allegations are made public, regardless of their veracity, those rights may be violated.

Additionally, in the Questions and Answers on Title IX and Sexual Violence published by the Department of Education in 2014, “to the extent possible, a school should only disclose information regarding alleged incidents of sexual violence to individuals who are responsible for handling the school’s response.” Thus, only those involved in the hearing process would have been made aware of the allegations against Okereke.

This is likely why this situation was not publicized prior to the draft process. Stanford was following the guidance as provided under Title IX. When questioned by the NYT in the original article, Stanford cited confidentiality rules and federal law as to why they could not discuss details of the case. Stanford discussing the details of this case or voluntarily releasing the documents would likely violate federal law.

Again, it is unclear how FoHo obtained these documents.

The details of the alleged sexual assault, sadly, are all too common on college campuses. The woman, we’ll call her Anna for consistency as that is what her pseudo-name is in other publications, went to a fraternity party where she met Okereke. According to FoHo, the two went back to Anna’s dorm for an encounter that was initially consensual. However, Anna said she became uncomfortable and withdrew consent. After which, Anna alleges she was raped.

Anna reported the sexual assault allegation to Stanford and a Title IX hearing was performed. It became the all too common “he said-she said” debate. FoHo allegedly obtained Facebook messages from Okereke saying he tried to get one of Anna’s friends to attest Anna was black-out drunk on the night in question as an attempt to discredit Anna’s story. However, according to FoHo, Anna’s friend said the conversation with Okereke never occurred and Anna’s friend believed it was an attempt to “put words in his mouth,” according to documents from the case obtained by FoHo.

During the investigation and hearing process, Stanford placed a no contact order requiring Okereke to stay away from Anna. Anna alleges Okereke repeatedly violated this order by refusing to leave parties in which they both were present. She tried to obtain a restraining order but was denied.

After a nine month process, two separate five person panels found in favor of Anna on a 3-2 vote but, under Stanford’s rules, at least a 4-1 vote is required to find the accused responsible. On it’s face, this decision seems completely unreasonable as Title IX says a school must use a “Preponderance of the Evidence” standard, which typically means more likely than not or 51%.

However, under California law, the Preponderance of the Evidence standard requires a super-majority of jurors in a civil case, i.e., 9 out of 12 or 75%. Stanford, at that time, was operating under California law. This is why Stanford required a 4-1 vote, or 80%, to find the accused responsible since that would meet the threshold set out by the State of California. Since this case, Stanford has instituted a new procedure utilizing three experienced panelists that requires a unanimous 3-0 vote in order to find the accused responsible.

It should be noted Anna chose not to pursue criminal charges in this case.

The NYT and FoHo makes it seem like finding an accused responsible is an almost insurmountable task under Stanford’s system. However, soon after the NYT’s article, Stanford released a statement noting 13 out of 16 cases in 2016 charged by the Title IX coordinator were found in favor of the accuser, not the accused. This would appear to undercut the NYT and FoHo argument that the system itself is fundamentally flawed in favor of the accused. Stanford also contends there are many discrepancies in the NYT story regarding how certain aspects of the investigation were presented and handled by Stanford.

So ultimately, for Colts fans, what more would you want the organization to do?

The Colts were unaware of this situation prior to Okereke disclosing it to the team at the Senior Bowl. The Colts did their homework. They did background checks.‬ They spoke with people familiar with the incident. The documents of the proceeding were considered confidential so there was no way of knowing what was said beyond speaking to interested parties.

But should the Colts have reached out to the accuser?

Yes. Why they didn’t do this is lost on me. My gut says it was likely out of an abundance of caution and to be respectful to the accuser. These things are incredibly sensitive and personal. Asking someone to relive a sexual assault is difficult so the team used their best judgment after conducting their own investigation.

A long time reader with experience in vetting sexual assault allegations pointed out to me privately that the team likely engaged in a very sensitive balancing of the pros and cons in making the decision not to reach out. The general consensus in that industry is to not reach out to the accuser, especially in sexual assault allegations.

Even so, I understand the team’s perspective. As Ballard noted, there was no punishment from Stanford after a disciplinary hearing and no criminal charges were filed. After conducting their own investigation, the team felt reaching out and speaking to the alleged victim was unnecessary. That doesn’t quite sit right but one can understand why. The Colts spoke not just to Okereke but also to people associated with the university and people close to Okereke about the situation. It is clear that after what they learned the team felt comfortable with Okereke.

As a reminder, this situation was in the middle of the Brock Turner case, in which Turner, a Stanford swimmer, was charged and convicted of raping an unconscious woman. Stanford likely would have been extra cautious not to simply overlook sexual assault allegations against an athlete.

To be clear, I’m not dismissing the allegations. Sexual assault allegations should not be dismissed. They should be taken seriously. Even though an encounter may begin as consensual, once consent is withdrawn, that person’s wishes should be respected. Despite finding 13 out of 15 other persons responsible in Title IX cases in 2016, Stanford did not find Okereke responsible in this troubling “he said-she said” scenario.

‪Given what we know now, I’m not sure how the Colts could have handled this situation any better after the news came out. Why would the team voluntarily divulge this information prior to or right after drafting Okereke given he was not disciplined by Stanford or charged with a crime? Should they have done more in investigating the situation by reaching out to the alleged victim or her attorney once they were made aware of the allegations? Possibly. However, it may not have changed their perception of the situation.

After the team conducted their own investigation, they felt comfortable drafting Okereke. Given the results of the disciplinary process, one should give Okereke the benefit of the doubt. Two separate panels did not find him responsible. No criminal charges were filed.

Chris Ballard has always been up front and honest when addressing basically everything related to the Colts. He felt comfortable drafting Okereke. That should tell you something.