GENEVA — Was the September 2013 incident that has embroiled Hobart and William Smith Colleges in controversy a sexual assault or consensual sex?
Ontario County’s district attorney said from the evidence he’s seen and the investigations done by the Colleges and the Geneva Police Department, he believes it’s the latter.
“There has been no evidence supporting any conclusion other than it was a consensual sexual encounter,” R. Michael Tantillo said. “Frankly, it would have been unethical for me to pursue charges on the evidence presented to me.”
Tantillo spoke to the Finger Lakes Times Thursday after last weekend’s story in The New York Times about a William Smith student who said she was sexually assaulted by several Hobart football players. The student has been identified only as Anna.
In a Monday interview, Geneva Police Chief Jeff Trickler and Lt. Eric Heieck — who handled the police investigation along with Detective Brian Choffin — stood by the police department’s work in the case. The Finger Lakes Times hoped to speak with Tantillo as part of that story, but he was on vacation and wanted to wait until he returned to work before commenting.
Tantillo also wanted to review his file on the case, which he hadn’t looked at recently, before commenting on The New York Times article. He was highly critical of the story, for which he was interviewed, and its condemnation of the investigations by HWS and Geneva police.
“I would say The New York Times article was extremely unfair. The Geneva Police Department repeatedly asked the alleged victim and her attorney to become involved in this investigation. They were told [by her first attorney] not to talk to her. They asked for access to the rape kit that was collected at Thompson Hospital. That was denied by her [current] attorney,” Tantillo said. “I also back the investigation done by the panel at Hobart and William Smith. They were subject to a lot of criticism in The New York Times article, and I think that criticism was quite unfair. I read every page of that hearing and all the testimony from those involved ... and I think they did an excellent job investigating. I think The New York Times article really did a disservice to this panel and ignored all the evidence that indicated it was a consensual act.”
How police handled case
Tantillo said he learned of the case shortly after the incident.
“It was made very clear to me from the Geneva Police Department that the alleged victim and her attorney did not want to press criminal charges,” he said. “Probably on a half-dozen occasions over a two-week period, the Geneva Police Department reached out to them and inquired about starting a criminal investigation. They received a call from the [first] attorney saying ‘Don’t talk to her anymore.’”
Trickler and Heieck said in October they were contacted by the student’s current attorney — Inga Parsons — and told a sexual assault kit had been done at the hospital but wasn’t being turned over to police because of its use for civil needs. Heieck added that in a letter sent to the student and Parsons in November, police reiterated their position about filing a criminal complaint.
In February, police met with the student and Parsons and talked about having access to the kit, but it was never turned over to police. At that time, Heieck said police once again urged the student to pursue criminal charges.
During a March 11 meeting with the student and Parsons, police took a formal complaint and then started an active investigation. Heieck said he and Choffin spoke with Anna, suspects and witnesses, and subpoenaed hundreds of documents from the Colleges.
“We talked to anyone the victim in the matter had knowledge about,” Heieck said, adding that some of the suspects had attorneys. “Very little was obtained from those interviews.”
Heieck said police took their information to Tantillo, letting him know where they stood in the investigation and that they still had no sexual assault kit. They were later advised not to proceed.
“Six months later, all they could collect were statements from many witnesses and testimony from the disciplinary hearing from a number of witnesses,” said Tantillo, adding the kit was tested by a private lab, not a crime lab. “I think the Geneva PD did a very thorough review of this matter. I wouldn’t call it an actual investigation, because they were denied the opportunity to do an investigation by the alleged victim and her lawyer. Realistically, they were met with complete uncooperation despite their continued efforts to get involved.”
DA reviewed transcripts
Tantillo said before making his decision not to prosecute, he got transcripts of the HWS hearing and appeal by grand jury subpoena.
“I wanted the opportunity to review it independently,” he said. “I think it’s important that the public knows that three responsible entities — the HWS review panel, the Geneva PD and the DA’s office — all independently reviewed the evidence in this matter and all arrived at the same conclusion — namely, that the evidence does not support any conclusion other than this was a consensual sexual encounter.”
Tantillo said over the years, his office has prosecuted several sexual assault cases coming out of the Colleges. Perhaps the best known is the case of Preston Wido, a Hobart student and member of the football team who was convicted in 2008 of rape and sentenced to six years in prison.
“That was a seven-week trial, the longest trial in county history,” Tantillo said. “I think most people would tell you that my office is probably as aggressive as any in the state in pursuing these type of cases ... but I have an ethical responsibility not to charge someone unless there is probable cause to do so.”
Assistant District Attorney Jim Ritts, who has prosecuted sexual assault cases in Geneva including some out of HWS, doesn’t believe the Geneva PD would downplay a sexual assault under any circumstance.
“In every instance that I have dealt with them, they vigorously investigate these matters and make every effort to treat the young women (or men) with dignity and respect,” Ritts said. “This is oftentimes complicated by delays in disclosure, the nature of acquaintance rape cases and the ‘normal’ healing of the human body. In addition, oftentimes the offenders or accused offenders invoke their right to counsel.
“That being said, I have never found a case where GPD has ever given short shrift to the complaints. Oftentimes that dignity will involve working with the victim, her family, advocates, therapists or counselors and, if appropriate, attorneys,” Ritts added. “I have worked with GPD on a number of cases out of the college and there is no ‘downplay’ of these matters during the investigations.”
“This case absolutely was not downplayed, by anyone,” Tantillo added. “The Geneva PD repeatedly urged the complainant to pursue this case criminally, but she refused to cooperate for six months and only wanted to pursue the case that way after she lost at the disciplinary hearing and her appeal of that.”
NYT article criticized
Tantillo also criticized The New York Times for its reporting of questions and answers at the HWS hearing.
“I read the transcripts, and a lot of what the panel did was reported out of context,” he said. “That a paper with the reputation of The New York Times would so dramatically take the testimony out of context to completely alter its meaning is alarming to me. That was a pattern of unfair treatment of the panel. From my perspective, this panel held a comprehensive hearing and formed the right conclusions.”
Tantillo also took issue with a portion of the article that said Choffin, relying primarily on his reading of school records, sent the DA’s office an error-filled report. The article said Choffin mischaracterized witness statements, put the words of one student in the mouth of another and said he never saw discrepancies or alterations in what the football players told the authorities, even though they had initially lied about having sexual contact with their accuser.
The article also said while Anna’s blood-alcohol test had been done many hours after she last had a drink, Choffin stated unequivocally that her level “would not make a person impaired to the point of blacking out.” The article went on to say that Choffin defended his report, which disputed much of Anna’s account, calling it “thorough and based on facts.”
“I disagree with that portion of the article. Brian Choffin’s report was a generally accurate summary of the several hundred pages of documents, which he read in their entirety,” Tantillo said. “The football players’ descriptions of their own contact was generally consistent. Each only later added the conduct of the others to their statements.”
Tantillo added that the assessment of Anna’s blood-alcohol content was correct. He said the BAC was at .06 percent several hours after the incident, meaning she would have been legally intoxicated at the time of the alleged assaults but in the low-intoxicated range, probably in the vicinity of somewhere between .10 and .14 percent.
On the alcohol aspect, Tantillo said under New York state law, for it to be a sexual crime in which the victim is considered to be incapable of giving consent, the person has to be physically helpless by either being unconscious or unable to communicate. He said there is evidence Anna was texting at about the time of the alleged assaults and talking to other people.
“She was definitely not unconscious and definitely able to communicate,” he said.