SAN JOSE – San Jose State’s former head athletic trainer might have touched female athletes in a way that made them so uncomfortable, and did so little to explain his methods or secure their consent, that jurors might conclude that Scott Shaw should have been fired from his job, a defense lawyer conceded during closing arguments in the federal trial Monday.
However, Shaw’s lawyer Dave Callaway told jurors, “Your job is to decide whether Mr. Shaw is a criminal.”
“If there was a failure to communicate, that’s on Mr. Shaw. He was the adult in the room,” Callaway said. “But that, folks, is not a crime.”
Callaway’s argument came after federal prosecutor MarLa Duncan told jurors just the opposite: that Shaw was “so sinister and manipulative” that “instead of doing his job, the defendant preyed on that trust to cop a feel of their breasts and buttocks, to grope them under the guise of legitimate treatment, treatment he knew had no legitimate purpose.”
The showdown in a San Jose federal courtroom Monday set the stage for an eight-woman, four-man jury to begin deliberating the case – culminating a two-week trial and closing a more-than-decade-long saga that has rocked the university.
The federal trial comes 14 years after a group of 17 San Jose State swimmers first accused Shaw of groping them under their bras and underwear. An internal university investigation in 2010 cleared Shaw, accepting that his “trigger point therapy” to treat injuries on other parts of the body by touching female athletes’ private parts was legitimate treatment. Shaw was allowed to keep working at the school until he resigned in 2020, shortly after swim coach Sage Hopkins took his ongoing complaints about Shaw outside the university.
Subsequent investigations by law firms hired by San Jose State and the Cal State system, along with the U.S. Department of Justice, all concluded that Shaw sexually abused numerous female athletes during his 14 years at the school, where he became director of Sports Medicine. Shaw was put on criminal trial when he was charged with six federal civil rights charges involving four women who came forward with allegations since 2017, within the statute of limitations. Shaw is charged with violating their 14th Amendment constitutional right “to bodily integrity when he sexually assaulted them.”
The charges are misdemeanors and if Shaw is convicted, he faces up to six years in prison. The allegations surrounding the six charges involve what victims describe as several instances of “grazing” their breasts or touching their nipples or areola to relieve shoulder pain, grabbing one of the athlete’s buttocks to help crack her back and “cupping” an athlete’s buttocks with his bare hands while placing an adhesive stimulation pad.
In general, felony sexual assault charges are handled in state court. Felony sexual assault in federal court more often involve children or force, threats or coercion.
Shaw, 56, who sat taking notes on a legal pad during the trial declined to testify. Hopkins, the swim coach, sat through testimony for much of the trial until he was forced to leave the courtroom after the defense suggested they would call him as a witness. They never asked him to take the stand afterall.
Although Callaway said during opening statements two weeks ago he would not attempt to contradict some of the former athletes’ testimony against Shaw, on Monday he did just that. During his closing argument, he suggested that some of the women were exaggerating or had changed their stories, that their memories had faded or that they were motivated by legal settlements that reaped between $125,000 and $225,000 each.
“There’s this bandwagon effect,” Callaway said. “It’s easier to believe something bad happened to you if you believe it happened to other people.”
With the woman who was upset that Shaw touched her buttocks while cracking her back, Callaway said it was necessary – “not a bad or evil purpose” – for Shaw to get proper position to torque her body.
For the athlete who complained that Shaw slipped three fingers into her sports bra for her shoulder injury, Callaway said that in that case, although Shaw tried to describe how the region connected to her back muscles, “she didn’t like what she was hearing and she got up and walked away.”
Shaw’s lawyers also supported the testimony of their expert witness, a sports medicine doctor from Moses Lake, Washington, who said that like Shaw, he often touched the breasts of athletes to treat shoulder injuries, although with permission. Although Dr. Brett DeGooyer doesn’t have the reputation and experience in Division I training rooms like the prosecution’s witness, Callaway said, he worked daily on treating the kinds of injuries Shaw did and should have left the jury with reasonable doubt.
During the prosecution’s closing arguments, Duncan recited some of the athlete’s reactions when Shaw touched them in their private areas: one was “internally freaking out,” another was “frozen, “every alarm in my body going off.”
She recounted the prosecution’s witnesses, including other athletic trainers who said they never touched athletes the way Shaw did, and male athletes from San Jose State who said Shaw never touched them in sensitive areas for similar injuries. The prosecution’s expert witness, Dr. Cindy Chang, who is the chief medical officer for the U.S. Women’s Soccer League and former head team physician for UC Berkeley’s athletic program, said the way Shaw touched the women was “never” appropriate.
“It’s not a she-said-he-said case,” Duncan told the jury. “They all said.”
Jury deliberations continue Tuesday.