Videos in alleged San Diego State gang rape case to be unsealed, but not made public

SAN DIEGO —  A judge on Thursday agreed to unseal sexually graphic video clips recorded during what a young woman said was a gang rape by college football players at a house party near San Diego State University.

It’s a narrow order, one that would allow news reporters to request to view the clips but not receive copies. The videos will not be released to the public.

The request to unseal the videos was made by attorneys for former Aztec star punter Matt Araiza. Araiza is one of three former players the young woman is suing in civil court, alleging that they raped her in a bedroom in October 2021.

Media outlets had not asked the judge to unseal the videos. However, San Diego County Superior Court Judge Jeffrey Fraser said he viewed the request to unseal the videos “primarily as a 1st Amendment issue.”

Fraser’s order will not go into effect for two weeks, to give San Diego police and city attorneys time to file an appeal to prevent anyone from viewing the recordings.

The series of short videos at issue — about nine of them, less than 10 seconds each — are said to capture the young woman, who was a minor at the time of the incident, involved in various sex acts. Araiza is not in the videos, and he sought to have them unsealed to use in his defense in the civil case.

Araiza attended Thursday’s hearing, but declined to comment about the case afterward.

Police have custody of the recordings, which were uncovered during a monthslong investigation into the allegations from a then-17-year-old girl who told police she was raped at a Halloween party held at a College Area home early on Oct. 17, 2021.

Prosecutors later declined to file criminal charges against anyone, saying they had no path to conviction.

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Hearing slated Thursday for battle over release of videos to civil attorneys for Matt Araiza, former SDSU punter accused of assaulting teen. He and two other former Aztec players say they are innocent.

April 26, 2023

Thursday’s hearing was in front of Fraser because he was the judge who initially ordered the videos and other evidence sealed. In February, he granted the request of several media outlets, including the San Diego Union-Tribune, to unseal sworn affidavits police filed to obtain search warrants.

Attorneys for the media outlets were not at the Thursday hearing, but Fraser said the media had an interest in the matter.

“The media should be able to go in, view it, describe it,” he said.

The judge said allowing the media to look at the videos was akin to police allowing reporters to view a confiscated machine gun or 10 pounds of fentanyl. “You can come look at it, but you can’t take it with you,” Fraser said. ”That’s about as clear as I can be on this particular order.”

No one is asking for the videos to be made public. And whether they will ever be seen by members of the media or shared with Araiza’s team remains unknown. Winning the order to unseal them was the first step for his team. It will be up to the judge overseeing the civil case to determine if the videos can be provided to the defense.

Deputy City Atty. Jill Cristech, representing San Diego police, fought the request to unseal, arguing that legally the videos are considered child pornography, and police are barred from sharing them outside of criminal prosecutions.

“You are in a really precarious situation,” Fraser said to Cristech. “I acknowledge that. But do you also see the situation where there is a public right to know about this. ... This is of public interest, right?

“I think the case as a whole is of public interest,” Cristech said. “I don’t think viewing pornographic or sexual acts — what public interest does that serve? I don’t know.”

“It tells you whether or not a crime took place — rape,” the judge said. “It tells you whether or not it was consensual. Tells you a whole bunch of different things, if you actually can view it.”

He said later that video evidence is “important to the modern world,” and it’s what people look for and trust.

“It’s a tough call,” the judge said. “I want to do the right thing.”

He told the attorneys repeatedly to file an appeal challenging his ruling. It was unclear whether the city attorney’s office will do so.

Araiza’s attorney, Kristen Bush, said her client wants to move through the civil case quickly, because the punting phenom wants to resume his nascent career.

The Buffalo Bills drafted him last year, but dropped him months later, preseason, after the young woman filed her civil suit. Thursday’s ruling came hours before this year’s NFL draft kicked off.

Araiza and co-defendants Nowlin “Pa’a” Ewaliko and Zavier Leonard maintain through their attorneys that they are not guilty, and said encounters with the young woman were consensual.

A prosecutor and district attorney investigator described the videos to the young woman last year, during a nearly two-hour meeting on Dec. 7 to explain why the office was not filing criminal charges. The Union-Tribune obtained an audio recording of the meeting.

They told the teen that the clips were “point of view” shots, taken from the perspective of the person engaging in the act with the teen.

The first was recorded around 12:55 a.m. in the living room of the home. That time is about 30 minutes after a witness said they saw Araiza leave the party.

Other videos appear to capture several people engaging in sex acts with the teen in a bedroom of the home around 1:30 a.m. Some of the videos were in a Snapchat format.

Dan Gilleon, the attorney representing the young woman in her civil suit, opposed the release of the videos. After the hearing, Gilleon said he believes that the defense ultimately will not be given access to the video clips.

“The bottom line is if they get access to these videos, they’re violating child pornography laws,” Gilleon said.

Araiza’s attorneys have previously acknowledged he had sex with the teen in a side yard, but said he never entered the home and that he left before the videotaped encounter in a bedroom.

Bush said after the hearing that the videos are “key evidence.”

“We’ve had descriptions of the videos, however, a picture is a thousand words,” Bush said. “I just really find it beyond frustrating that Matt Araiza is still in this case.”

In court Thursday, Fraser also agreed to order that police release Araiza’s cellphone tracking data. Bush said the data will show that her client was not at the party when the acts occurred in the bedroom.