Last fall, 20-year-old SMU junior Donald Cuba was indicted on charges of raping a fellow student in a dorm room. He was one of two SMU students charged with sexual assault that year (both in the same month, in fact). The other student, J.D. Mahaffey, saw his charges dropped by the state back in March. But Cuba's case went to trial Monday morning.
His accuser, who's being referred to as Jan Doe, was one of the first to take the stand. The Dallas Morning News reported that she testified that Cuba pushed her down on a bed, pinned her arms, pushed her shorts and underwear to the side and raped her. Although she didn't physically fight back, she said, "I've since gone back and wished I had."
As it continued through Tuesday, the trial offered a few more glimpses into how SMU handles allegations of sexual assault: through a firmly opaque system of on-campus hearings known as "student conduct panels." The News reported in September that Cuba was originally convicted of sexual assault during a panel hearing, then cleared of those charges during an appeal.
It's still not clear to the outside world how Cuba's case slipped free of the bonds of SMU and made it into an actual courtroom in Dallas County. Last week, one of the assistant district attorneys in the case, Cresta Garland, signed a motion to the court, promising, among other things, that neither side would mention the SMU hearings or any of their findings. Yet a few pieces of information still squeaked through.
See also: - SMU Student Indicted for Raping a Classmate in a Dorm Room
According to the prosecution, the rape took place in the wee hours of February 10, 2012, sometime between midnight and 2 a.m. Doe lived in Smith Hall, along with a bunch of other Hilltop Scholars — "well-rounded" kids, in the words of one student witness, with good test scores from high school, high GPAs and lots of involvement in extracurricular activities.
Cuba, who was slightly older, didn't live in the hall but at the Lambda Chi fraternity house. Both sides agreed that the night seemed to have been characterized by a lot drinking and a lot of making out for much of Smith Hall. They disagreed on whether Doe herself was drunk.
Testifying for the prosecution, another then-Smith Hall resident, Eric Trexel, said he saw Doe very late that night "running around frantically." "She seemed really distressed," he said. "Like, frantic, very edgy."
She told him she was trying to avoid someone, although she wouldn't say whom. He told her she was welcome to wait in his room. As they headed inside, they saw two guys approaching down the hall. They went in and shut the door, Trexel said, and the two men immediately started pounding on it.
Jan Doe, Trexel said, was "shuddering" every time they hit the door. But she didn't want to tell Trexel what had happened. "She didn't want to talk about it," he said. "But she was rocking back and forth, saying, 'It should be my choice.'" Trexel gave the girl a pillow and a blanket and let her sleep on his futon. When he woke up in the morning, she was gone.
The first authority figure Doe told about the attack was her RA, an SMU junior named Amanda Thornton, on February 13. According to Thornton's testimony, after Doe spent 20 or 30 minutes telling her what had happened, Thornton didn't call the police, either the SMU force or the University Park police. Instead, as they do in "sexual assault situations," she said, she documented the incident "in paperwork, in case the head of school needs to take it farther." Then, she referred Doe to the counseling office, known as CAPS. By that point, Doe had already named Cuba as the person who attacked her.
Yet nobody seems to have spoken to Cuba for at least two months, when SMU police apparently began investigating the matter. In the meantime, on February 14, Doe started seeing a counselor, Dr. Cathey Soutter, the head of CAPS. Soutter also didn't notify the police. She told Doe that she should go to the school's medical office and have a SANE exam (the acronym stands for "sexual assault nurse examiner"). Doe declined, although she did agree to see a doctor and get any prescriptions she may have needed, for STDS or pregnancy (we don't know if she needed either of those things).
The defense asked that Soutter not be allowed to testify in front of the jury that she believed the assault had occurred. But Udashen, one of Cuba's two attorneys, did question why Soutter didn't investigate the matter herself or talk to any other students to corroborate the girl's account.
"I'm not an investigator," Soutter said. She saw Doe at least 13 or 14 times over that spring, the fall, and the following spring, she said. "Our treatment was to help her manage her anxiety and give her a place to vent." She said that Doe had been suffering from nightmares, intrusive thoughts, trouble sleeping and difficulty concentrating on her schoolwork. After a month, Soutter diagnosed her with PTSD.
"It was difficult for her to be in the residence hall, sleeping in the room where the assault occurred," Soutter said. At the defense table, Cuba whispered to his attorneys and shook his head several times. Soutter added that the girl was surrounded by "friends and not-friends" at Smith Hall. "These kinds of things tend to polarize a community."
Doe had come to SMU on several scholarships; her grades slipped in the months after February 10, and she lost two of them. Soutter wrote letters on her behalf to try to help her get them back. Soutter was also there when Doe testified in the first student conduct panel hearing. Doe's testimony seems to have taken place entirely by phone, sitting in Soutter's office.
Seven students testified in Cuba's defense; several of them had apparently also testified in the SMU hearings (we have to say "apparently" about all of this, because those records are not open to the public). Watching them were a couple dozen more students — boys in khakis, girls in dresses and gladiator sandals or very high heels. A couple people wore shorts and sneakers to court. It was virtually impossible to tell who they were there to support. During breaks, though, Cuba sipped sodas and chatted, always surrounded by a crowd.
Cuba's defense painted a portrait of a confused, blurry, drunken night, and of Doe as a girl who'd already been struggling with depression and anxiety for several months. Kristen Ogden, Doe's roommate at the time, testified that Doe had gone through a breakup that fall, followed by the death of her dog. During the rush process in January, she didn't get invited to join any of the sororities she wanted. Then, the week before the alleged attack, her uncle died.
"She was very upset by a bunch of events happening in a short amount of time," Ogden said. That behavior "only intensified" after that night, she added. The defense suggested that Doe's PTSD, if it was real (which they also questioned), was the result of these incidents.
The defense also didn't exactly try to present their own projection of what happened in the dorm. They didn't say definitively, for example, that Doe and Cuba had a consensual sexual encounter, or that they'd never hooked up at all. Instead, they introduced a host of details, with witnesses testifying that Doe had been drinking wine all evening with another boy after going out to dinner with friends earlier and having margaritas.
That young man testified that he and Doe had drunk wine together and made out in his room for a bit, before retiring to Doe's room after someone informed them that his roommate had been in the room the whole time and was not happy. He admitted that much of the night was blurry for him, but he said that he'd later been the person who pounded on Trexel's door, looking for Doe, who'd left him at some point. Cuba had been with him, he said, but was only trying to get him to quiet down and stop making a scene.
Another boy, Erik Buchel, testified that he'd talked to Cuba relatively early in the night at Smith Hall, and that Cuba told him he was there to see Doe. He later reported having seen them walking down the hall together, Cuba's arm around her shoulder, her arm around his waist. He heard them go into the laundry room, where he overheard "what sounded like making out," he said. Later, he said he saw Doe and Cuba getting ready to leave together to go to a frat house.
The defense also made it clear that they believed Doe had sex with someone on another student's bed in Smith Hall that night, although they didn't exactly argue that it was Cuba or someone else. The encounter, whatever it was, happened on the bed of a student named Rich Burkhardt. Burkhardt heard that Doe had sex with someone on his sheets, he testified, and called or texted her, demanding that she wash them. She didn't. Another girl eventually did that job for him. All of them said they hadn't seen blood on the sheets, or on Doe's clothing, which Doe seems to have mentioned during the SMU police investigation.
Burkhardt, who's also Cuba's "little brother" at Lambda Chi, said that he'd been contacted by SMU police on Wednesday, April 4. But after coming to the dorm to interview him, he said, "they asked questions and determined I was biased" because of his relationship with both people in the case. Then, apparently, they left. About five months later, Cuba was indicted in Dallas County.
The witnesses for the defense seemed to have trouble using the pseudonym Jan Doe. More than once, a witness used the girl's real name, despite being corrected many times by the judge and the prosecution. A couple of them also seemed not to quite grasp the seriousness of where they were. After his testimony, Erik Buchel looked over at the judge, apparently troubled.
"Quick question," he said. "Do you guys validate for parking?" He seemed baffled when the entire courtroom howled with laughter.
The trial resumes today. Cuba is expected to take the stand, and the jury will likely begin deliberating this afternoon. In the meantime, we can all wonder how cases like this might be handled in the future. An SMU sexual assault task force recently released series of recommendations on how to make the university's handling of rape and sexual assault a little better. They recommended keeping those on-campus hearings in place.
