Need Smac's take in the filing against the BYU player

[jpv]

@smac97

[Amulek]

I assume this is in regard to the civil suit recently filed against Jake Retzlaff. 

In Utah, for civil cases involving allegations of sexual assault the standard of proof is the "preponderance of the evidence." This means the plaintiff must demonstrate that it is more likely than not - essentially, a greater than 50% likelihood - that the defendant committed the alleged misconduct. This is a lower threshold compared to criminal cases, which require proof "beyond a reasonable doubt." 

A criminal conviction is not a prerequisite for pursuing a civil lawsuit. In fact, even if a defendant is acquitted in criminal court (or never charged), a victim can seek damages through a civil action. There have been several high-profile cases where civil suits have been successful even after criminal charges were dropped or resulted in acquittal (e.g., O.J. Simpson, Robert Blake, Michael Jackson, etc.).

There isn't enough information available at this stage for me to come to anything close to a conclusion about anything other than my strong suspicion that, at minimum, Mr. Retzlaff will be in trouble with the Honor Code office and BYU will be looking for a new starting QB this summer.

 

[webbles]

7 hours ago, Amulek said:

There isn't enough information available at this stage for me to come to anything close to a conclusion about anything other than my strong suspicion that, at minimum, Mr. Retzlaff will be in trouble with the Honor Code office and BYU will be looking for a new starting QB this summer.

Assuming it was consensual, how does the Honor Code office deal with violations that are more than 2 years old?  I know some players have been suspended but I believe those were all contemporary honor code violations.

[Amulek]

34 minutes ago, webbles said:

Assuming it was consensual, how does the Honor Code office deal with violations that are more than 2 years old?  I know some players have been suspended but I believe those were all contemporary honor code violations.

My understanding is that the university reserves the right to investigate reported or suspected Honor Code violations at its discretion, regardless of when the alleged misconduct took place. 

I don't see anything in their policy (see, e.g., here) which would preclude them from initiating an investigation so long as there is "sufficient, reasonable, and credible information that an Honor Code violation has occurred."

 

[Calm]

19 minutes ago, Amulek said:

My understanding is that the university reserves the right to investigate reported or suspected Honor Code violations at its discretion, regardless of when the alleged misconduct took place. 

I don't see anything in their policy (see, e.g., here) which would preclude them from initiating an investigation so long as there is "sufficient, reasonable, and credible information that an Honor Code violation has occurred."

 

Can they compel DNA in a civil case?

[Benjamin McGuire]

2 minutes ago, Calm said:

Can they compel DNA in a civil case?

Not generally. The main exception to this would be a paternity case, or sometimes other medical claims. The rules for compelling DNA are generally understood in civil cases as being under the purview of Federal Rules of Civil Procedure 35. And in that context, much more deference is given to the defendant than to the accuser. There has to be a substantial reason for the DNA evidence - and, if it is an attempt to try and discover evidence, you generally will only get a judge to sign off on it for the defendant looking for exculpatory evidence - that is, if there is a chance that DNA evidence would refute the claims instead of substantiating them. Accusers are generally not allowed to go on fishing expeditions for evidence.

[Amulek]

3 hours ago, Calm said:

Can they compel DNA in a civil case?

The Honor Code office? No, but the woman who filed the suit might be able to - though, technically, it would be the court doing the compelling, not her.

In a civil case, a party cannot force another to submit DNA testing on their own. Instead, they must file a motion with the court and show that the DNA evidence is relevant and reasonably necessary to the case.

The court then evaluates whether the request is appropriate and not unduly invasive or burdensome. Based on that evaluation the court may then compel the other party to provide a DNA sample.

My understanding is that in this case, the woman who is bringing suit had a rape kit performed within a few days of the alleged assault. If there is evidence of foreign DNA, it's possible she could ask the court to compel a sample from the defendant. 

If she's alleging it came from Retzlaff, the court may determine the DNA is relevant. In that case, a sample from the defendant would be necessary to compare and the intrusion (cheek swab) would be pretty minimal. Therefore a judge could very well grant a motion to compel. 

[Calm]

 

20 minutes ago, Amulek said:

If she's alleging it came from Retzlaff, the court may determine the DNA is relevant. In that case, a sample from the defendant would be necessary to compare and the intrusion (cheek swab) would be pretty minimal. Therefore a judge could very well grant a motion to compel. 

The rape kit was why I was wondering.  DNA by itself wouldn’t prove rape (I assume they took blood samples, but if it was a few days later, probably wouldn’t find much if she was drugged), but would prove violation of Honor Code.

Edited May 28, 2025 by Calm

[Benjamin McGuire]

9 hours ago, Amulek said:

My understanding is that in this case, the woman who is bringing suit had a rape kit performed within a few days of the alleged assault. If there is evidence of foreign DNA, it's possible she could ask the court to compel a sample from the defendant. 

If she's alleging it came from Retzlaff, the court may determine the DNA is relevant. In that case, a sample from the defendant would be necessary to compare and the intrusion (cheek swab) would be pretty minimal. Therefore a judge could very well grant a motion to compel. 

It likely wouldn't happen. I'll provide a different scenario. Suppose that the woman claimed that a man raped her in his home - and that in the context of the rape, there was some violence, and there was blood from the victim left on the sheets. In a civil case, the judge cannot authorize a search warrant for law enforcement to search the defendant's home for that evidence. And while DNA is not considered testimony, there are substantial privacy and harm issues associated with the collection and analysis of a DNA sample. An accusation is almost never considered an appropriate basis for this kind of harm in a civil case. It is also part of the reason why civil cases have a lower bar than a criminal case. To put it a bit differently, if there is sufficient evidence on the part of the victim to get a warrant in a criminal investigation, then there is no need for the DNA sample in the civil case - the other evidence stands in its place. Similarly, a civil case couldn't compel a DNA check from a DNA database either (to avoid the need for a court order for the defendant).

At the same time, the nature of a civil case is far different from a criminal case. The presence of DNA itself only confirms that sex occurred - and sex generally is not a criminal act or even a civil infraction. If this is going to a civil case, the likelihood is that the accused admits to having sex with the victim, but, contests the narrative - that is, claims that it was consensual. There are sometimes very fuzzy lines here - and the woman might have agreed to a date, agreed to dinner, agreed to go home with the accused, and even initially agreed to an intimate encounter, only at some point to decide to end it, and told the accused that they were no longer interested in having sex. Alcohol may have been involved. If the accused continued the intimate encounter, we likely have assault - but it becomes difficult to prove. All of these other issues add to a complexity in the case - and if law enforcement determines that whether or not consent was withdrawn that they cannot make the legal case of assault stick, they won't proceed with the investigation. That is, if they find that the woman's claims are not compelling, they won't touch it - the odds of conviction are low. The civil case then revolves largely around these narratives of what happened - and in this situation, the DNA from the rape test is irrelevant. The person who could present DNA evidence as being relevant is the defendant and not the accuser - because if he really didn't have sex with her, he can submit that DNA to exonerate himself of the accusations. The accuser would be required to provide the defendant with the results of that rape test - and the defendant could then make the determination about what to do with that information. What is more relevant is the time frame in which the rape was reported.

The courts have absolutely zero interest in proving a violation of the Honor Code - the fact that a DNA test could do this would create potential harm for the defendant, and so would actually be an argument against the judge ordering a DNA test. And if the rape test was a few days after the alleged assault, it creates a narrative that will almost certainly be employed by the defense of remorse on the victim's part leading to their efforts to re-frame the encounter. The whole BYU honor code thing is a sensitive topic at BYU. It hasn't been that long since there were claims that BYU violated Title IX rules by having their Title IX investigations given to the Honor Code Office - who then investigated assault victims for honor code violations. This wouldn't help the victim's case.

In any case, this is all completely different from paternity suits where DNA is always going to accurately identify whether a person is the father of a child or not. You can see the same sort of thing in testing for cancer linked to certain types of biological and chemical exposures, and so on. It is this level of engagement with DNA that is generally understood as meeting the burden of "the DNA is relevant". I could envision a case where this could be applied - if the case involved incest, for example, and that incest was part of the suit, then DNA could say something definitive. If the DNA cannot answer the actual question in the suit (that is, if it cannot establish that assault occurred), then it cannot generally be compelled in a civil case.

[Amulek]

2 hours ago, Benjamin McGuire said:

It likely wouldn't happen. [...]

I agree. 

 

Quote

If this is going to a civil case, the likelihood is that the accused admits to having sex with the victim, but, contests the narrative - that is, claims that it was consensual.

If that happens (and I actually agree the defense will likely argue something similar) then yes, there would be no reason for the court to order a DNA test.

However, if he claims to have never had any sexual contact with her at all, that could change the calculus.

Regardless of how that plays out, I think you're still going to end up with some kind of evidence in the public record about him having engaged in activity that could warrant investigation by the Honor Code office.*

 

*Note: I hope it goes without saying that I care more about victims of sexual assault than I do about violations of the BYU Honor Code, but I should probably go ahead and say that explicitly just in case.  

Edited May 28, 2025 by Amulek

[helix]

18 hours ago, Calm said:

Can they compel DNA in a civil case?

KUTV has been the best resource on this story. In short:

• She completed a rape kit test a few days after the alleged incident. Provo police found nothing on that rape kit actionable. "Collected evidence was examined, and it revealed no actionable investigative leads."
• The lawsuit claims a cut lip, bruises around the neck, and bruises on the legs. So the hospital may have evidence of this.
• She made a phone call to Provo PD also a few days after the alleged incident. "The complainant in that case was given several opportunities to identify her abuser. She declined to do so"
• "Our victim advocates followed up several times to offer services but received no response"
• "We hope the plaintiff chooses to make a statement to further the criminal investigation if desired"
• The lawsuit alleges police told her in a follow up phone call that victims usually don't get justice. "We have no record of any other phone calls with the victim." Further "KUTV also reached out to the plaintiff's attorneys to see if they had evidence to back up the claim that police made that comment to their client. We did not hear back."

Provo PD ultimately ends with this statement: "We can only conclude that what is drafted in the civil claim by the victim’s attorney, did not happen."

Already this lawsuit is off to a shaky and weak start. I would be surprised if it case isn't dismissed before trial starts.

 

[webbles]

56 minutes ago, helix said:

KUTV has been the best resource on this story. In short:

• She completed a rape kit test a few days after the alleged incident. Provo police found nothing on that rape kit actionable. "Collected evidence was examined, and it revealed no actionable investigative leads."
• The lawsuit claims a cut lip, bruises around the neck, and bruises on the legs. So the hospital may have evidence of this.
• She made a phone call to Provo PD also a few days after the alleged incident. "The complainant in that case was given several opportunities to identify her abuser. She declined to do so"
• "Our victim advocates followed up several times to offer services but received no response"
• "We hope the plaintiff chooses to make a statement to further the criminal investigation if desired"
• The lawsuit alleges police told her in a follow up phone call that victims usually don't get justice. "We have no record of any other phone calls with the victim." Further "KUTV also reached out to the plaintiff's attorneys to see if they had evidence to back up the claim that police made that comment to their client. We did not hear back."

Provo PD ultimately ends with this statement: "We can only conclude that what is drafted in the civil claim by the victim’s attorney, did not happen."

Already this lawsuit is off to a shaky and weak start. I would be surprised if it case isn't dismissed before trial starts.

 

I'm assuming that you are referencing this article https://kutv.com/news/local/provo-police-department-faces-scrutiny-in-civil-lawsuit-against-byus-jake-retzlaff

 

That quote about "did not happen" seems like it is about the allegation the police told her to drop the case.

[Calm]

1 hour ago, webbles said:

That quote about "did not happen" seems like it is about the allegation the police told her to drop the case.

I would not be surprised if the victim remembered it being said when it wasn’t, given how memories work, and how it’s pretty common knowledge there is a low conviction rate for sexual assault for a variety of reasons.  Perhaps she asked the question of chances of conviction and got a ‘we can’t say at this point’ response that turned in her head to ‘ain’t likely to happen’ or she could have thought the comment herself in mid conversation as she debated with herself whether or not to supply more details and then remembered it after replaying the conversation in her head—likely on repeat for hours—as being said by police, not thought of by herself.

But it also wouldn’t be the first time police had said something like that to a victim.  

I assume though telephone conversations with police might be recorded; if so, they can check those to be certain.  If not, they would go off of notes that got taken and likely assume protocol was followed and I would be surprised if that this point there isn’t something in training that says ‘do not tell victim chance of prosecution is low’.

Otoh, it could be CYA behaviour from the police and someone actually told her that.

(just listing possibilities, I have no conclusions based on the limited info given except I don’t see much chance of the lawsuit being won unless she has additional evidence…which would be in the complaint I would think)

Edited May 28, 2025 by Calm

[helix]

1 hour ago, webbles said:

That quote about "did not happen" seems like it is about the allegation the police told her to drop the case.

Yes, I should have been clearer.

Provo PD is saying the claimed second phone call (and police statement to drop the case) seems to not have happened. They have no record anywhere of such a phone call. Provo PD apparently have documented reports of many other things in this case. So if the phone call and statement did happen, then either A) Provo PD didn't document that one phone call while documenting everything else, or B) Provo PD documented the phone call but destroyed the evidence.

Options A and B are already putting the accuser in a weak legal position.

Edited May 28, 2025 by helix

[webbles]

20 minutes ago, helix said:

Yes, I should have been clearer.

Provo PD is saying the claimed second phone call (and police statement to drop the case) seems to not have happened. They have no record anywhere of such a phone call. Provo PD apparently have documented reports of many other things in this case. So if the phone call and statement did happen, then either A) Provo PD didn't document that one phone call while documenting everything else, or B) Provo PD documented the phone call but destroyed the evidence.

Options A and B are already putting the accuser in a weak legal position.

But the Provo PD isn't a party of the lawsuit.  So whether or not the victim made up that second phone call or the response, I don't see how it has an impact on the actual case.

[helix]

Provo PD are demonstrating the lack of evidence and accuser credibility in this case.

A rape kit was done, but Provo PD didn't find anything about it to be actionable (likely no DNA match, or any DNA at all). The lawsuit likely states a second phone call was made to Provo PD, but Provo PD has no record of it. The initial phone call didn't have much content either.

On the other hand, this isn't some case of an accuser making things up two years later to get athlete money (as I've seen some in the X/Twitter universe allege). But beyond that, I don't know if the accuser has any other evidence. So I surmise the lawsuit is weak.

Unfortunately, I haven't found the lawsuit's full text online. I've seen snippets from people who had paid access to see it.

Edited May 28, 2025 by helix

[rpn]

5 hours ago, helix said:

We can only conclude that what is drafted in the civil claim by the victim’s attorney,

But last I read, they didn't know whether the Jane Doe was the same person  who made a report around the same time, it being anonymous and all.   So may the difference is not having the two   Nothing actionable may just mean no dna  found (which would be true if a condom was used) correctly and the perp was careful. Seems to me that given the paucity of evidence,  no fake victim would risk claiming it.

If I were counsel, I'd surely want that other report (because if more than one football player was violating the rules they might also have been taking to each other (stupidly, of course) about it).

[bluebell]

3 hours ago, helix said:

Provo PD are demonstrating the lack of evidence and accuser credibility in this case.

A rape kit was done, but Provo PD didn't find anything about it to be actionable (likely no DNA match, or any DNA at all).

If the kit was done a few days after like the report seems to indicate, then you're probably right.  But as others have said, even the presence of DNA wouldn't necessarily be a red flag for a police department.  I've read of cases where there was DNA and injuries documented in a rape kit and the police department still declined to press charges.  Sexual assault is an uphill battle even when you do everything 'right' afterwards.