WACO—Baylor University hired a Philadelphia law firm to conduct an independent external investigation of how the school handled a football player’s sexual assault of a female student-athlete.
Baylor’s board of regents retained the Pepper Hamilton firm’s services to investigate the university’s response when a then-18-year-old soccer player reported a Baylor Bears football player raped her. Sam Ukwuachu was convicted and received a 180-day jail sentence and 10 years’ probation for sexual assault.
Attorneys Gina Maisto Smith and Leslie GomezThe assault occurred in October 2013, about five months after Ukwuachu transferred to Baylor from Boise State, where he had been dismissed from the football team after an earlier act of violence involving a female student. Questions remains about how much Baylor Head Football Coach Art Briles and others at the university knew about Ukwuachu’s history of violence against women and when they learned about it.
Gina Maisto Smith and Leslie Gomez, partners at Pepper Hamilton with expertise in the institutional response to all aspects of sexual misconduct, will lead the investigation. They will report their finding to a special committee of the board of regents.
Action to ‘protect the safety and welfare of all our students’
“I am pleased with our board’s swift and astute decision to retain the services of Gina Smith and Leslie Gomez to examine our processes and policies,” Baylor President Ken Starr said. “Ms. Smith and Ms. Gomez are skilled and experienced investigators who will help us pinpoint where we are strong and where we need to make improvements to ensure the highest degree of integrity to protect the safety and welfare of all our students.”
Smith and Gomez advise colleges and universities on federal, state and local regulations. They include Title IX, the Violence Against Women Reauthorization Act of 2013 and the Clery Act, which deals with crimes that occur on a college campus, adjacent to a campus or off-campus when associated with the school.
Smith and Gomez also offer counsel on changes in the laws and investigations into allegations of sexual misconduct, including sexual violence. They regularly conduct policy audits and assist in policy development, design and implementation of internal and external operating procedures, Baylor officials noted.
The University of Virginia recently hired Smith and Gomez to consult with the school regarding its response to rape and sexual assault claims, as well as claims of sexual harassment. Last year, the two attorneys issued a report to Los Angeles’ Occidental College, which critics say blamed campus turmoil on a sexual assault activist group.
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About one week before retaining the law firm’s services, Baylor announced it would hire “outside counsel to investigate thoroughly” its handling of reported sexual abuse and would create a staff position to provide oversight of all student-athlete behavior.
Baylor Head Football Coach Art Briles answers questions at his weekly press conference Aug. 31. (www.baylorbears.com image)“This officer-level position will report directly to the president and ensure our student-athletes maintain a high level of personal ethics and integrity. … We must have zero tolerance for sexual violence on our athletic teams and our campus,” Starr said.
The day after the regents hired the law firm, Starr issued a public statement, “Keeping Baylor Nation Informed,” in which he talked about how Ukwuachu’s conviction “brought deep anguish to our campus” and how trial testimony “made us aware of the painful details of a brave survivor—and Baylor student-athlete at the time—who deserves our compassion and understanding.”
Starr acknowledged the “intense scrutiny” of Baylor triggered by news reports about the sexual assault and the university’s handling of it.
“Some have concluded that we could have done more. Perhaps so,” Starr said. “Our independent investigation will soon reveal if opportunities exist for improvements in the way we respond to allegations of sexual violence. But I retain full confidence in our student life professionals.”
Universities ‘lack subpoena power’
When dealing with allegations of sexual violence, university processes “differ dramatically from the standards employed in a criminal investigation,” he noted. Universities lack subpoena power, cannot compel witnesses to testify under oath and cannot require mental health professionals, counselors or medical doctors to disclose information, he added.
“Under governing law, universities typically must complete their investigations in 60 calendar days from the day of the initial report,” Starr explained. “In addition, universities are severely limited in their opportunity to review SANE (Sexual Assault Nurse Examiner) exams, which often prove to be critical evidence in criminal trials of sexual assault. In fact, such exams are entirely under the control of the local district attorney or local law enforcement. They are not the property of the victim, much less the university.
“Nevertheless, we must always be vigilant to ensure that our processes—particularly those associated with the safety and well-being of our students—are not only robust and comprehensive, but entirely beyond reproach. That is why I took immediate action to ascertain the quality of our entire university-wide approach to both the prevention of and response to sexual violence.”
Starr expressed appreciation to Jeremy Counsellor, professor at Baylor Law School and faculty representative to the Big 12 Conference, for his work conducting an initial internal inquiry.
Recommendation to retain outside counsel
“Professor Counseller’s inquiry, wise judgment and thoughtful guidance led promptly to our second action—a recommendation to our board of regents to retain outside counsel both to investigate these matters thoroughly and to review comprehensively our internal processes,” he wrote.
Starr noted outside counsel from Pepper Hamilton will report directly to a special committee of the regents, not to administration.
“Their guidance will help us pinpoint where we are strong and where we may need to improve,” he said.
Starr also responded to allegations Briles knowingly recruited a student-athlete with a history of criminal violence.
“Our coach vehemently denied these allegations, and the sports media eventually got the story right,” Starr wrote. “The player’s former coach at Boise State initiated contact with us. At no time did any Boise State official ever disclose any record of physical violence toward women.”
At an Aug. 31 news conference, reporters asked Briles about the external investigation and the new staff position, but he offered little response.
“I think it’s good. I honestly haven’t read the report on anything along those lines,” he said, noting Athletic Director Ian McCaw is “certainly a lot more involved in that than I am.”
After Briles’ news conference, reporters asked McCaw about the investigation.
“We’re fully supportive of President Starr’s announcement that he was going to bring in an external investigator,” McCaw said. “Baylor athletics will cooperate fully with the investigator as they go through this review process.”
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