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Lane County District Attorney details why 

Oregon basketball players were not charged in 

rape accusations

Updated on May 06, 2014 at 05:22 PM PDT 

MILWAUKEE, WISCONSIN, - Mar 19, 2014 - Damyean Dotson answers questions before open practice at the BMO Harris 

Bradley Center, Wed, Mar 19, 2014, in Milwaukee, Wis. 

Lane County District Attorney details why Oregon basketball players were not charged in... Page 1 of 6

http://www.oregonlive.com/articles/12851522/lane_county_district_attorney.amp 11/30/2016

Exhibit B - Page 1 of 6 

Declaration of Michelle Barton Smigel 

in Support of Defendants' Motion to Dismiss

Case 6:16-cv-00647-MC Document 52-2 Filed 12/02/16 Page 1 of 6
By Andrew Greif | The Oregonian/OregonLive 

EUGENE -- Lane County District Attorney Alex Gardner just released this 

statement as to why Oregon basketball players Brandon Austin, Dominic Artis 

and Damyean Dotson were not charged despite accusations of rape from an 

incident on March 8. This story will be updated, but here is the statement in its 

entirety: 

The DAs office no-filed charges in a sexual assault case in which 

several University of Oregon basketball players allegedly forced a 

female University of Oregon student to have sex. The no-file decision 

is based entirely upon analysis of the available evidence and its 

insufficiency to prove the allegations beyond a reasonable doubt. 

A no file decision is not a statement about who we believe or dont 

believe. It is simply an analysis of the available evidence and its 

sufficiency to meet the States burden of proof. From time to time, 

additional evidence becomes available after an initial no-file. When 

that happens, the evidence is reviewed and, if sufficient, a case may 

be revived and prosecuted. 

Recent investigation of sexual assault involving UO basketball 

players: All three suspects report having consensual sex with the 

alleged victim. The alleged victim, claims that some or all of the 

sexual contact was involuntary. In such cases our analysis centers 

on any evidence of force, the absence of consent, or victim inability 

to consent. In this case, its important to note that the alleged victim 

and the alleged assailants describe substantially similar sexual 

activity, timing and order of events. The principal differences 

between the versions of events told by the alleged victim and the 

alleged assailants centers on the apparent level of victim 

intoxication and whether and at what point the victim expressed a 

desire to either not have sex, or stop having sex. For purposes of this 

investigation, we are equally concerned with evidence that the 

i

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Exhibit B - Page 2 of 6 

Declaration of Michelle Barton Smigel 

in Support of Defendants' Motion to Dismiss

Case 6:16-cv-00647-MC Document 52-2 Filed 12/02/16 Page 2 of 6
victim was forcibly compelled, or unable to consent by reason of 

intoxication. 

The alleged sexual assaults took place at different locations over a 

period of many hours. According to the victim, the first sexual 

assault took place at the hands of two of the three suspects in the 

bathroom of a house where a party involving about thirty people was 

taking place. She reports the assault being comparatively brief and 

interrupted when she asked to get a drink of water. The assault 

allegedly ended after which the victim reports resting on a couch 

with a drink of water, mingling briefly with other partygoers, and 

then returning to the bathroom with the same two assailants and a 

third individual who, she reports, all resumed a sexual assault similar 

to the assault the first two assailants had initiated earlier. 

During the second sexual assault episode, the victim reports getting 

a text from a friend telling her that it was time to go. This assault 

reportedly ended promptly when the victim told her assailants I 

need to go. At that point, all four people reportedly left the bathroom 

and the victim went outside where one of her friends was waiting 

with her ride home. The friend reports waiting for the victim, 

repeatedly warning her that the man/men just want you for sex, and 

encouraging the victim to leave the party with her. According to the 

alleged victim, this is the point at which one of the assailants 

grabbed her and pulled her back towards the house. (At this point 

the victims friend and others describe a playful, flirtatious 

interaction between the victim and her alleged assailants, with no 

element of force, no indication of victim fear or apprehension, and 

no indication that the alleged victim was physically or mentally 

impaired by alcohol.) The alleged victim then went back towards the 

party-house and, shortly thereafter, got into a taxi with the same 

men who had allegedly assaulted her (now twice). The taxi took the 

group back to a residence shared by two of the alleged assailants. 

Shortly thereafter, the victim and the three men from the second 

bathroom assault went into one of the bedrooms and resumed 

various sex acts similar to those that had taken place in the 

bathroom at the party house. A fourth man was allegedly present 

and watching the sex acts, but did not participate. 

Lane County District Attorney details why Oregon basketball players were not charged in... Page 3 of 6

http://www.oregonlive.com/articles/12851522/lane_county_district_attorney.amp 11/30/2016

Exhibit B - Page 3 of 6 

Declaration of Michelle Barton Smigel 

in Support of Defendants' Motion to Dismiss

Case 6:16-cv-00647-MC Document 52-2 Filed 12/02/16 Page 3 of 6
According to the alleged victim, she started crying during the third 

sexual assault and the assault promptly stopped. She then spent the 

rest of the night sleeping with one of the three men who had 

reportedly assaulted her, but she reports no further sex between 

them. (This is an area of material disagreement concerning the sex 

acts themselves. The man who slept with the alleged victim reports 

having consensual vaginal sex one more time in the morning. When 

reminded of this, the alleged victim confirms that they had oral sex 

the following day, but cant remember whether they also had 

intercourse.) 

The following day the alleged victim reports being tired and upset. 

When she goes to visit friends she finds two of her alleged assailants 

in the residence playing video games, so she withdraws outside. 

While waiting there another friends walks up, consoles her, and they 

end up having sexual intercourse. There are multiple sources of 

information in this case. Since consent is the issue, not whether the 

sex acts took place, DNA is of little value. The focus was on evidence 

of consent or the inability to consent. In making the initial 

determination we evaluated the presumption of innocence and the 

States burden of proof in light of the following: 

1) Several interviews with the alleged victim, 

2) Interviews with victims friends and associates who saw her before 

and after various critical 

points during the time in question 

3) Surreptitious recorded phone calls with the alleged suspects 

4) Police interviews with the suspects and others. 

A) Although the alleged victim reports being impaired by alcohol 

prior to any sexual contact, there is no evidence, from her or from 

others, that suggests she had enough to drink to become 

substantially impaired prior to the first two sexual encounters in the 

bathroom. There is also no independent behavioral evidence that 

the victim appeared significantly impaired: nobody reports her 

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Exhibit B - Page 4 of 6 

Declaration of Michelle Barton Smigel 

in Support of Defendants' Motion to Dismiss

Case 6:16-cv-00647-MC Document 52-2 Filed 12/02/16 Page 4 of 6
having slurred speech, difficulty walking or any other symptom of 

impairment from intoxication at any point in the evening. 

B) Friends and associates of the alleged victim describe her as 

friendly and flirtations, both before and after the first and second 

alleged assaults in the party-house bathroom. Moreover, all 

witnesses agree the alleged victim had the opportunity to leave the 

party, or at least ask for help, after the first series of sexual assaults. 

Friends and others report her walking and talking fine both before 

and after both sex-in-the-bathroom events. 

C) The alleged victim recalls extensive detail about all aspects of the 

evening, including the timing, order of events even the exact amount 

of the cab fare and her decision to have another drink of alcohol 

during the ride to the alleged assailants residents, and most of the 

detail is consistent with the events reported by others (so she does 

not appear to have been affected to the point of perception or 

memory impairment. Similarly, theres no evidence she was ever 

unconscious during the sex acts, nor is there any evidence she was 

ever impaired to the point where it adversely effected her balance or 

stability.) 

D) The alleged assailants stopped the sex acts several times first 

when the alleged victim asked for a drink of water, next when the 

alleged victim said she had to go and, finally, at the second 

residence, when the alleged victim started crying (the first point at 

which suspects claim they realized she wasnt in to it). 

E) Victim returned to isolated locations with her alleged assailants 

repeatedly, although she had friends nearby and she was in a 

crowded party. 

F) Telephone calls between the alleged victim and alleged assailants 

were recorded surreptitiously. The contents of those conversations 

are consistent with suspects version of consensual sex, or at least 

their belief it was consensual sex.) 

G) Friends of the alleged victim say she did not appear to be 

impaired by alcohol at any time during the evening. 

Lane County District Attorney details why Oregon basketball players were not charged in... Page 5 of 6

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Exhibit B - Page 5 of 6 

Declaration of Michelle Barton Smigel 

in Support of Defendants' Motion to Dismiss

Case 6:16-cv-00647-MC Document 52-2 Filed 12/02/16 Page 5 of 6
H) Alleged victim had consensual sex with one of the suspects the 

morning after the alleged assaults and, later the same day, she had 

sex with another friend. 

I) The crimes are reported by victims father days after the alleged 

assaults took place and alleged victim is angered by the reporting 

(because of timing). 

J) Alleged victim indicated a desire to only have her assailants wrists 

slapped, not ruin their lives. 

K) Assailant interviews with police are consistent with recording 

made without their knowledge and the statements of other 

witnesses None of the above would be individually inexplicable, but 

collectively, and in the absence of additional evidence, they provide 

an insurmountable barrier to prosecution. 

­­ Alex Gardner 

­­ Andrew Greif 

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Lane County District Attorney details why Oregon basketball players were not charged in... Page 6 of 6

http://www.oregonlive.com/articles/12851522/lane_county_district_attorney.amp 11/30/2016

Exhibit B - Page 6 of 6 

Declaration of Michelle Barton Smigel 

in Support of Defendants' Motion to Dismiss

Case 6:16-cv-00647-MC Document 52-2 Filed 12/02/16 Page 6 of 6