Why a judge ruled that Utah Valley University didn’t have to help a sex assault victim

Editor’s note: This story discusses sexual assault. If you need to report or discuss a sexual assault, you can call the Utah Rape and Sexual Assault Crisis Line at 801-736-4356.

Utah Valley University had no obligation to provide resources to its own student after she was raped because the alleged attacker did not go to the school and the assault did not happen on campus, according to a judge.

In his decision issued last week, U.S. District Court Judge David Barlow dismissed all claims against UVU in the high-profile lawsuit brought by student Marissa Root. Her December 2021 filing had drawn widespread attention and criticism of the school for allegedly declining to help Root and instructing her to instead go to the University of Utah, where the student who she said raped her attended, for any assistance.

Root had argued that was deliberate indifference and left her to deal with the assault alone.

But the judge said while UVU could have offered help or tried to investigate, it had no responsibility to do so under Title IX. That’s the federal law that charges universities with ensuring students receive education without sex-based discrimination and running offices that provide support services to students who have been sexually assaulted.

The claims against the Utah System of Higher Education, which oversees all public universities in the state and was also named in the case, were also dismissed on the same grounds.

Neither UVU nor the system had “substantial control over the assailant or the context of the assault,” meaning the location, the judge said, citing a U.S. Supreme Court decision on Title IX.

So neither can be held liable for not helping Root.

Root can amend and refile if her attorneys find reason to disagree, according to the ruling. The law firm representing Root declined to comment; The Salt Lake Tribune generally does not identify sexual assault victims, but Root agreed to the use of her name.

Spokespersons for UVU and the Utah System of Higher Education also declined to comment.

However, Root’s claims against the University of Utah will still move forward — as will the criminal case against the U. football player Root has alleged raped her, Sione Lund.

Earlier this year, Lund accepted a deal with prosecutors that came shortly after a judge had ruled there was enough evidence for Lund to stand trial. He has now pleaded guilty to attempted forcible sexual assault, a third-degree felony. That is punishable by up to five years in prison. The dismissed linebacker will also have to register as a sex offender.

Lund, now 24, had originally been charged with rape and forcible sodomy, both first-degree felonies, for the alleged September 2019 assault. He will be sentenced on March 20.

Unlike UVU and the Utah System of Higher Education, the University of Utah did not file a motion to have the claims against it dismissed. But it wrote a response to Root’s lawsuit denying the claims.

The U. says in its filing that it explained available options to Root and referred her to resources when she turned to the school for help after she said UVU declined to provide support. The U. also notes that it swiftly removed Lund from the team when it learned about the allegations.

In a statement Monday, the U. added: “We will speak to the facts of the case as the lawsuit progresses through the court process. The university strives every day to be a victim-centric and trauma-informed place where students, faculty, staff and the larger public feel safe and able to have their voices heard and responded to if they have been the victims of sexual, interpersonal or other violence.”

UVU referred to a previous statement saying, “We take reports of sexual assault seriously and offer support services and resources to victims of sexual violence, regardless of where, when, or how such violence may have occurred.”

What the ruling means

Under the ruling’s reasoning, a college does not have to provide help to victims or survivors of sex assault — even if they are students there — if the assault both did not happen on campus or at a school-sponsored event and wasn’t perpetrated by someone connected to the university, such as another student or staff member.

That goes against what most advocates had thought Title IX ensured.

S. Daniel Carter, president of SAFE Campuses, LLC, previously said Title IX does not instruct schools to send their own students to the school of an alleged perpetrator for help.

“Legal requirements aside, a ‘pass the buck’ system can be deadly,” Carter said.

The U.S. Supreme Court ruling relied on by Judge Barlow states that, in order to be held accountable for an assault, a school must have some kind of “disciplinary authority” over the attacker. That can include invited guests.

As for location, the assault also has to have occurred on school property or at an event hosted by the school. Off-campus fraternities do count under that.

The University of Utah had originally relied on those arguments when it denied responsibility for the death of student athlete Lauren McCluskey in October 2018, saying her attacker was not a student so the school didn’t have any authority over him.

That immediately prompted concerns among students about the implications, including when their university would be obligated to protect them. The U. ultimately settled the case with McCluskey’s parents, acknowledging it was aware of McCluskey’s concerns reported to the campus police department and housing officials and failed to take them seriously before she was killed outside her dorm.

But in Root’s case, she was a UVU student at the time of the attack and was assaulted by a U. football player, which complicated her requests for help. In her lawsuit, Root details that she had just started her sophomore year at Utah Valley University when she went with a group of friends to a party at Lund’s house in Holladay.

Root’s attorneys had pointed to recent guidance from the Department of Education that suggested schools should still provide resources to all student victims, regardless of where an attack occurred or who perpetrated it. But the judge ruled that guidance on Title IX was not a court precedent. Title IX regulations regularly change with new U.S. presidential administrations, and that guidance has already been declared void, the judge noted.

She later told police that at some point he isolated her in his room. Root told him, “No” several times, according to the charging documents, and repeated that she did not want to have sex with him. The police documents state that he then forced himself on her, as well as forcing her to perform a sex act on him.

She went to a hospital after that with two friends and reported the case to police.

Root said in her lawsuit that the U. declined to help her and instead said it had to support the athlete because he was their student; she said the advocate there never asked for his name.

The university says Root did not want to name her attacker, according to its previous statement.

Other criminal cases with U. football players

Root said the U. reached back out to her after another football player was accused of assault, trying to determine if the person she has alleged raped her was also the person in that case. It was not.

The U. has now seen at least three felony-level criminal cases involving football players allegedly assaulting or threatening women in the past three years.

Lund was dismissed from the team at the same time that another player, Donte Banton, was also suspended. He is no longer on the team roster. Banton was later charged with rape, after police allege he admitted to them that a woman he was with had told him she wasn’t interested in sex but he went ahead anyway.

Banton has since pleaded guilty to sexual battery in a plea deal. The charge was amended from a first-degree felony to a misdemeanor. He was given credit for the 34 days he had served in jail and sentenced to two years of probation.

Banton was football player Terrell Perriman’s roommate. Shortly after Banton was arrested, Perriman was charged with allegedly kidnapping and raping a 17-year-old girl, and then had additional charges added by prosecutors for allegedly raping two other women.

Perriman is facing eight felony counts, and his case is still pending in court.