She says he sexually assaulted her. Cal Poly believed him

Oct. 19--Cal Poly graduate Melissa Giddens said she thought she could trust her university to handle her sexual assault complaint. Instead, she came away feeling like the one put on trial.

"I knew that it was a hard thing to prove," she said, so she chose to bring her case to Cal Poly rather than the police. "I thought I'd start at Title IX and go from there. And if they couldn't believe me, then there's no way (the police) would."

Giddens said she was sexually assaulted in October 2014. When she reported the incident in January of this year, what she received in response was a statement from Cal Poly -- backed up by the California State University Chancellor's Office -- that she was not as credible a witness as her alleged assailant. (The Tribune does not usually name victims of sexual assault, but Giddens publicly discussed her story on social media and gave The Tribune permission to use her name.)

After publishing a letter on Facebook that criticized the university administration's handling of her case, Giddens said she's heard from several others who say they were mistreated by Cal Poly's Title IX office.

Title IX is the federal law that prohibits universities that receive federal funds from discriminating on the basis of sex. Federally funded universities are mandated by the U.S. Department of Education to investigate reports of -- and to sanction individuals they find guilty of -- sexual harassment, discrimination and misconduct.

The entire process is confidential.

"The university is prohibited from discussing or even acknowledging specific Title IX cases," said Cal Poly spokesman Matt Lazier.

The only Title IX information the university provided is statistics.

In the last two fiscal years, Cal Poly investigated 44 Title IX sexual misconduct, domestic violence and stalking complaints. Investigators handed out sanctions in 19 of those investigations but found insufficient evidence in 25 of them. Another 95 complaints were not investigated.

Giddens gave The Tribune a copy of her investigation report, providing a rare window into a secretive process.

The last thing she remembers

It was a Friday -- Oct. 10, 2014 -- when Giddens, then a sophomore, attended a party with a group of friends, a group that included the man she said later sexually assaulted her.

The investigator's report names the alleged assailant, but because he was not charged with a crime, The Tribune is identifying him only as a Cal Poly student. According to a Facebook profile in his name, he belonged to a fraternity currently on probation for violating university policies on hazing, party registration and drugs and alcohol. The man did not respond to a Tribune request for comment.

Giddens' recollections of what happened that night are limited. She said she ended up separated from her friends and, at one point, asked for a cup of water. A man handed her a cup provided by a third man, who said, "This one's special."

Giddens later testified the water tasted "weird and salty."

According to the report, "(Giddens) stated she went into the living room to talk with friends and that is the last thing she remembers from that night."

The next morning, Giddens said she woke up in bed at her Poly Canyon Village apartment, with her alleged assailant next to her. She was partially undressed and he had his hands down her shorts, she said.

"I did not consent. I had been drugged. And when I woke up, I was being violated," Giddens told The Tribune. "When I woke up and realized what was happening, he said 'Do you like this?' And I just froze out of fear.' "

Giddens said the man then stopped what he was doing.

"I think that's when he realized he was doing the wrong thing," she said.

According to CSU policy, consent for sex must be affirmatively and freely given, and cannot be given if one is incapacitated.

"Examples of incapacitation include unconsciousness, sleep and blackouts," CSU policy states.

Giddens told the investigator that the alleged assailant then left for work. Later that day, she said she vomited blood and was told by a doctor that that was a sign she might have been drugged.

Giddens said a friend told her not to report what happened. And for two years, she followed that advice.

The report

In the wake of the incident, Giddens wrote that she began experiencing a variety of mental and physical symptoms diagnosed by her doctor as resulting from "internalizing trauma and anxiety."

In addition, she told The Tribune that in a later meeting with her alleged assailant, she tried to get him to acknowledge what happened and take responsibility.

He refused.

Eventually, she made a report to Safer, which provides support to Cal Poly victims of sexual or intimate partner violence.

"I didn't even go in with the mindset of reporting it. I just needed to talk about it. It had been about two years at that point since it happened, and it was still affecting my daily life," she said.

From there, she decided to make a report to Cal Poly's Title IX office, which opened an investigation on Jan. 31 of this year. (Giddens and the alleged assailant were both fourth-year students at the time.)

Tiffany Little, assistant director of equal opportunity, was assigned to investigate under the supervision of Brian Gnandt, director of equal opportunity.

Pamela Thomason, CSU systemwide Title IX compliance officer, said, "No one is required to use the CSU process. Other reporting options include reporting directly to the police or to other relevant law enforcement agencies such as the Department of Fair Employment and Housing or the U.S. Office for Civil Rights."

(CSU Chancellor Timothy White recently announced that the university system would keep its Title IX policies in place in the wake of a decision by U.S. Secretary of Education Betsy DeVos to rescind the Obama administration's Title IX policy in favor of the policy of the George W. Bush-era Department of Education.)

Similar to a trial, the investigator interviews witnesses and collects evidence.

But this isn't a trial: There are no lawyers, no rules of evidence, and the investigator is supposed to make a decision based on whether evidence on one side outweighs evidence on the other. That's a significantly lower standard than criminal trials.

Conflicting testimony

Little interviewed Giddens, the alleged assailant and nine other students.

The alleged assailant said Giddens gave off "a flirtatious vibe" at the party, and that the two kissed and danced together. Two of Giddens' friends testified she was acting out of character; with one saying, "This was strange, since (Giddens) generally isn't into public displays of affection even when sober."

Two witnesses said they saw Giddens vomiting during the party, while others -- including one who said he had memory problems due to a disability -- said they couldn't recall Giddens throwing up.

The alleged assailant said he was asked to walk Giddens to her door and invited in, that they slept fully clothed and he walked her to work the following morning. He denied any sexual activity took place.

Witnesses contradicted his statement -- telling Little, the investigator, that the alleged assailant tried to take Giddens to his apartment, then volunteered to walk her home, the report states. None of Giddens' roommates saw the alleged assailant, and one insisted she spoke to Giddens at home after he left.

Little's report concluded that none of the witnesses saw Giddens showing signs of intoxication. She called testimony that Giddens was seen throwing up "disputed," but conceded it was possible Giddens vomited out of sight of some witnesses, writing that "throwing up, alone, is not sufficient evidence to establish incapacitation."

Little also concluded that had Giddens been incapacitated, "it is likely, plausible and logical that, (her) motor skills and/or speech would have been impaired."

According to the National Institute on Alcohol Abuse and Alcoholism, "Outside observers typically are unaware that an individual is in a blackout. Depending on how much alcohol the person drank and how impaired other brain functions are, a person in the midst of a blackout could appear incredibly drunk -- or not overly intoxicated at all."

Little said she assigned less weight to the testimony of Giddens' roommates, because Giddens told them some of the details months after the incident.

"That is less reliable than having a fresh recollection," Little wrote.

Little wrote she assigned more weight to the alleged assailant's story "because he made statements against his own interest during the investigation," such as admitting to kissing and dancing with Giddens.

While kissing without consent could be construed as "unwelcome touching," a form of sexual violence as defined by the CSU, he denied penetrating Giddens in any way, a more serious allegation.

"Any sexual penetration, no matter how slight, is sufficient to constitute rape," according to CSU policy.

The ruling

On June 14 of this year, Gnandt issued a letter ruling that there was insufficient evidence to move forward with the case. On June 26, Giddens appealed to the Chancellor's Office.

"I came to them, told them straight up (that) I did not consent to this activity. And they just didn't acknowledge that it even happened," she said. "I knew there was a chance that they wouldn't find enough evidence, but they just didn't even acknowledge that it happened."

Giddens argued in her appeal that Little's report was unsupported by the evidence, and that Little made several "prejudicial procedural errors," including multiple typos.

"And then (the Chancellor's Office) gave me an even more half-assed report back. Which seemed like they skimmed the initial report, skimmed my appeal and just kind of blurted something out," she told The Tribune.

The July 31, 2017, report reiterated Little's findings and wrote that "the investigator's conclusions are entitled to deference, as she was the person who was in the position to personally observe you, (the alleged assailant) and all witnesses during the interviews," wrote Bridget Pinelli, manager of the Chancellor's Office of Investigations, Appeals and Compliance.

The matter was closed; there would be no further consideration.

"It felt like they automatically sided with him, and then it was like I was on trial," Giddens said.

Lazier said he couldn't comment on Giddens' case but said, "sexual misconduct has no place on Cal Poly's campus, and the university takes all reports of sexual misconduct very seriously. ... Cal Poly and the CSU's Title IX processes and procedures are robust and designed specifically to provide fair and thorough review of all claims of sexual misconduct or discrimination."

The last straw

Weeks passed. Giddens, who graduated in June of this year, was working to gain acceptance into a master's program at Cal Poly.

Then, on Sept. 27, Cal Poly'sMustang News published a report stating Cal Poly's Title IX office was investigating at least seven sexual assault complaints against a single student. (That investigation is unrelated to Giddens' complaint.)

Giddens, who lives in Santa Maria, said, "So I have long trips where I get to think about things. And so I got home and just typed it out."

On Sept. 28, she posted her letter in the Facebook group "Cal Poly Ride Share." Giddens, who signed the letter with her name, gave The Tribune permission to share it.

In the letter, she called her alleged assailant a coward for not accepting responsibility, and chastised Cal Poly's Title IX office for making her feel "like a liar and a slut."

"The reason that I even posted (the letter) was because I was tired of people not talking about (sexual assault). That's part of the reason it keeps happening, is no one's talking about it," she said. "I didn't necessarily want to be the person to (come forward), but I felt I was at a point where I could. And it just seemed like the right time to do it."

Since publishing the letter, Giddens said she's heard from 10 women "saying the same exact thing happened to them, or very similar" with the Title IX office.

Giddens said Cal Poly's efforts to teach about consent, including workshops during the annual Week of Welcome, are undermined by the Title IX office's actions.

"They're constantly telling us what consent means," she said. "They're constantly telling us what to do if you think your consent was violated, but they don't actually believe it, it feels like."

Giddens said she has no reason to lie about what happened, explaining that speaking out only intensifies her trauma.

"It's sad, because I love our school. And doing this almost feels like I'm attacking it," she said. "But it's wrong, and I can't ignore that. And I'm not going to stop just because I like the school."

Andrew Sheeler: 805-781-7934, @andrewsheeler

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