University of Iowa News Release
April 9, 2003
Skorton Releases Report From Investigative Committee
UI President David Skorton today released the report of an ad hoc committee that investigated the University of Iowa's involvement with the resolution of the criminal case in which a member of the UI men's basketball team, Pierre Pierce, was accused of assaulting another UI student.
The committee, appointed on Dec. 16, 2002, by Interim President Willard L. "Sandy" Boyd, was charged with investigating the university's role in the resolution of the case and to make recommendations for future handling of similar situations. Members of the committee were Margaret Raymond and John Allen, UI professors of law; Madgetta Dungy, assistant dean in the UI College of Medicine; and Phillip Kutzko, UI professor of mathematics.
"The committee has prepared a thoughtful report, for which they deserve the thanks of the entire university community," Skorton said. "I will carefully consider their recommendations. At the same time, I have been studying the recommendations of a subcommittee of the Board in Control of Athletics on this issue. I will announce, in the next several weeks, a series of actions in response to these two sets of recommendations."
The full text of the report follows:
Report of the Ad Hoc Committee on the Pierce Matter
This report sets forth the findings and recommendations of the investigative committee (hereinafter "the Committee") appointed by Interim President Willard (Sandy) Boyd to investigate the university's involvement in the Pierce matter (hereinafter "the matter").
The members of the Committee were Professor John Allen, College of Law; Assistant Dean Madgetta Dungy, College of Medicine; Professor Philip Kutzko, department of mathematics, College of Liberal Arts and Sciences, and Professor Margaret Raymond, College of Law.
In performing its investigation, the committee met for more than 35 hours, reviewed voluminous documents, and interviewed numerous people, including (but not limited to):
The charge from Interim President Boyd asked our Committee to investigate the University's role in the resolution of the matter, and to make recommendations for future handling of similar situations based on our analysis of what happened here. Our report is therefore divided as the Interim President requested into factual findings regarding the handling of the matter and recommendations as to the future.
The resolution of this matter involved participation by many parties and individuals. Many of those persons are unaffiliated with the University. Consistent with our charge, we considered and addressed only the University's involvement with the matter. Accordingly, we did not investigate, and reserve judgment as to the propriety of, the behavior of any persons without any University connection who may have been involved in the matter.
II. Limitations on this Report.
An investigation of this nature has the potential to uncover information which must as a matter of law or conscience remain private. The members of the Committee agreed that any such information, should any be uncovered, would not and could not be a part of this report. In some circumstances, what follows is necessarily less than a complete description of the facts that took place. We ask the community's trust that we have disclosed everything that we could under law and in good conscience, and that what has not been disclosed does not detract from the findings or conclusions set forth here.
The Athletic Department imposed an interim suspension on the male student, which prevented him from participating in athletics pending the resolution of the matter. The Athletic Department had the authority only to suspend the male student from participation in athletics; he continued as a student during the interim suspension. The University officials imposing the interim suspension believed that the suspension from athletic participation was consistent with the practice of the Department in prior cases where student athletes had been charged with serious crimes. There are no formal rules, however, addressing how the Athletic Department should treat athletes who have been charged with crimes prior to the resolution of those charges.
Over the next few weeks, the female student consulted with a number of University offices as to how she might best proceed in this matter. She was considering the wisdom and desirability of proceeding with a criminal proceeding or with University discipline or both. It is our understanding that the student was not necessarily committed to criminal prosecution at this point, but sought advice as to her alternatives. At a minimum, her goal was to proceed with her studies and other activities without the possibility of encountering Pierce. In seeking advice on this matter, the student consulted with the ombudsperson's office, with the Rape Victim Advocacy Center, and with the Vice President for Student Services. In addition, she consulted with University employees who were close to her in her role as a student; these various advisers were not as well informed as might have been desirable about the variety of options available to a student wishing to pursue a claim of misconduct against another student. In addition, there were some delays in securing advice and consultation to the student. For example, she consulted with the ombudsperson's office on a Friday. The office advised that she decide over the weekend what she wanted to do next. The victim considered her options over the weekend. When she contacted the office on Monday and indicated that she wanted to meet with Vice President Jones, that meeting was not arranged until that Friday.
At no time was it suggested to the student that the Office of Affirmative Action and its director, Charlotte Westerhaus, could be a valuable resource to her in pursuing her concerns, nor was it made clear to her by any of the University personnel she contacted that that office could investigate allegations of sexual wrongdoing by one student against another student, even if discipline was ultimately sought under the Code of Student Life. It is clear under the University Policy on Sexual Harassment, however, that physical assault can constitute evidence of prohibited sexual harassment, that a complaint of sexual harassment could have been investigated by the Office of Affirmative Action, and that some or all of the persons to whom the victim reported her complaint were mandatory reporters under Section 4(d) of the University Policy on Sexual Harassment, required to report such allegations to the Office of Affirmative Action. The Sexual Harassment policy had recently been revised at the time of this occurrence. The University Policy on Sexual Harassment and the Policy on Violence are both incorporated by reference into the Code of Student Life, see section (A)(16) of the Code of Student Life, and violation of these policies is a violation of the Code as well. Therefore, an allegation of a violation of the Sexual Harassment policy can be investigated by the Office of Affirmative Action, and then pursued as a disciplinary matter by the Vice President for Student Services.
In addition to these formal contacts, some contacts with the female student were initiated by persons who were not University employees, but who have an informal University relationship. In particular, individuals affiliated with Athletes in Action, a religious organization, contacted the victim to seek an informal resolution of the matter by asking the victim to meet informally for prayer with the perpetrator. One of those individuals had a longstanding relationship with the basketball program and its coach, which included traveling with the basketball team and conducting voluntary chapel and Bible study activities for the team and staff.
The female student's reaction to this contact was concern that the University was improperly involving itself in trying to resolve the matter. For her, this confirmed her fears that the University would act to protect its athlete and would not effectively pursue her interests in a disciplinary matter. Her response was to pursue criminal charges against the student athlete.
A criminal prosecution is not a matter between two private parties; the State--through its lawyer, the county attorney--brings a prosecution against an individual and pursues it to its conclusion. It is not ordinarily the case that the decision to pursue a criminal prosecution is solely that of the victim of the crime. However, in some situations, the cooperation of the victim is essential to the successful conclusion of a criminal prosecution. In addition, victims of sexual assault have historically been reluctant to pursue criminal charges against their alleged assailants because of fears that they will be publicly embarrassed and that injury will be done to their reputations in the trial of such charges. In light of those factors, the County Attorney in this case assured the female student that the state would pursue criminal charges in this case only if it were acceptable to her for the State to do so, and further assured her that his office would at any point honor her decision not to proceed with the criminal case. In light of that assurance, the female student agreed to pursue criminal charges against Pierce. A formal charge was instituted, charging Pierce with Sexual Abuse in the Third Degree.
Coach Steve Alford was asked for comments by the press numerous times in the Pierce matter. He was advised by Bob Bowlsby that he should show support for his player but indicate that he was awaiting the resolution of the legal matter. The distinctions required in the direction he received were difficult to draw, however, and on at least one occasion, the Big Ten media day, he stated with regard to Pierce that "I totally believe he's innocent. I believed it from Day 1 and I still believe it."
The possibility that criminal charges would be brought caused the student athlete to consult an attorney, Alfredo Parrish of Des Moines. After the institution of criminal charges, the female student also felt the need for representation, and engaged Jerry Crawford of Des Moines.
Some time after formal charges were instituted, lawyers for the victim and the perpetrator began to consider whether a resolution of the matter could be achieved that would satisfy the wishes of the victim and would be acceptable to Pierce. Such discussions necessarily involved the County Attorney, Patrick White, since it was his agreement that the criminal charges would be dropped or reduced, rather than the female student's desire to drop or reduce them, that would make such a resolution possible.
At some point in this process, White was diagnosed with heart disease which necessitated emergency open-heart surgery. He therefore stepped out of his active involvement with the case for some time. Assistant County Attorney Anne Lahey represented the County Attorney's office in the case.
The proposed venue for resolution of the matter was a so-called "mediation" session which the two students would attend along with their lawyers, various support persons, a representative of the County Attorney's office, and a "mediator," Roxanne Conlin. This meeting was conducted over a period of several hours in Des Moines. No representative of the University attended the meeting or, it appears, was consulted about the wisdom of the process. It is unclear whether any university employee was aware of the planned meeting before it took place. Such a "mediation" was a highly unusual way to proceed in a sexual assault case.
Once it began, however, participants at the meeting contacted Mark Schantz. A conversation with Schantz was held during the meeting, and in the week following additional conversations were held between Parrish and Schantz, Bowlsby and Head Basketball Coach Steve Alford. Some of those conversations involved the participation of Crawford as well. The substance of those conversations was informational. The subject of those conversations was whether Pierce could somehow continue to play basketball as part of the resolution of the case. Several distinct issues are subsumed in the issue of whether the athlete could continue to "play," including whether he would play in games, would practice with the team, would engage in training at Carver-Hawkeye Arena, would dress in uniform or sit on the bench for games, would travel with the team to away games, or would eat at the "training table" with the other members of the team. In addition, Pierce was concerned that he retain the maximum number of years of eligibility as an athlete and that he retain his athletic scholarship. At some point, the notion that Pierce might "redshirt" was raised, and Mark Schantz, Bob Bowlsby, and Steve Alford were contacted to clarify what it would mean for him to "redshirt."
In addition, during this time Parrish had correspondence and communication with Vice President for Student Services Philip Jones. In correspondence, Jones stated to Parrish that any resolution of the criminal matter did not foreclose Jones' ability to seek disciplinary sanctions against the student for violations of the Code of Student Life.
Ultimately, Pierce and the female student and their attorneys arrived at an agreement. This Committee did not see a copy of the signed agreement, but was informed that the terms of the agreement provided that Pierce would plead guilty to a reduced misdemeanor offense, would apologize to the victim, and would observe a no-contact order requiring him to stay away from her; he would "redshirt" for a year from the basketball program, but would retain his full eligibility and would not lose his athletic scholarship during the year of the redshirt. Both students also agreed not to discuss the case further.
That agreement, as made clear above, could not alone resolve the criminal charges; the agreement of the County Attorney's office was also necessary. The County Attorney contacted Bob Bowlsby and asked if the Athletic Department could "live with" the negotiated settlement if the county attorney decided to proceed by its terms. Bowlsby asked for time to consult with Mark Schantz, did so, and responded to the county attorney that the Athletic Department could "live with" the terms of the resolution. This determination was based in part upon a conclusion by Schantz that if this negotiated resolution failed, that the matter would go to trial, which would be distressing to the victim and would result in her identity being disclosed. It was also based on the conclusion that the consequences within the Athletic Department of a conviction for a misdemeanor were not clearly outlined anywhere and depended on the circumstances, providing considerable room for the exercise of discretion on the part of the Athletic Director and his staff.
On November 1, 2002, Pierce pleaded guilty to a reduced charge of assault causing injury. The allegations to which Pierce pleaded guilty were that he, on or about September 7, 2002, "did an act or acts of physical contact meant to be insulting and/or offensive to another, and which caused injury to the other person, to-wit: the Defendant had unwanted intimate contact with another, which caused the person bruising and lacerations." The athletic department lifted its suspension, and began treating Pierce as a "redshirt," which permitted him to practice with the team and participate in team activities, but not to compete. Some collateral opportunities ordinarily made available to "redshirt" students, such as the opportunity to eat at the "training table" or to dress for home games, were also denied him.
The university's limited participation in the formation of the negotiated settlement that led to the plea agreement in this matter did not mean that the University had waived its right to bring a disciplinary proceeding against the student athlete under the Code of Student Life. Because of the unique circumstances of this case, however, there was a possibility that Pierce could have opposed such a disciplinary proceeding. The Attorney General advised the Committee that such resistance could produce litigation which might have revealed the identity of the female student.
On February 24, 2003, Interim President Sandy Boyd issued his decision that no Code of Student Life proceeding would be brought against Pierce.
The facts of this situation give rise to numerous concerns on the part of the Committee.
(A) The needs of victims who come forward under such circumstances must be attended to better than they were here. The victim was not always offered timely referral to appropriate persons; she was apparently not advised by University personnel that she had the option of having her complaint investigated by the Office of Affirmative Action even if discipline was later sought in a complaint brought to the Vice President for Student Services; and she was approached by persons with an informal relationship to the University in a way that caused her to perceive the University as adverse to her interests. Moreover, it appeared that the many dedicated and committed persons with whom she spoke were not adequately informed about the resources available to her in her situation. Even central administrators with whom she spoke were unaware of all the potential avenues for seeking University redress in sexual assault cases. And some took what might be described as a "legalistic" rather than victim-sensitive approach to the victim in this case. This is partly a function of the somewhat confusing and overlapping jurisdiction of different University offices and personnel in responding to such complaints.
The Committee recommends that further training be provided to ensure that all those to whom students in this situation report are fully able to guide such students to appropriate services. It further recommends that, to facilitate and streamline the investigation of complaints of sexual assault or violence, those functions be centralized in and coordinated by the Office of Affirmative Action, as part of its responsibilities under the campus Sexual Harassment policy. The Vice President for Student Services should remain as the sole authority to impose discipline against students arising from founded complaints of harassment, as well as the authority to impose interim sanctions in furtherance of the public safety. Such coordination and clear apportionment of functions will better serve to meet the needs of victims and will clarify for University personnel where to refer their students should such a situation arise.
(B) The University was only peripherally involved in the agreement that led to the resolution of the criminal charges. Because the University was a passive, responsive participant in a proceeding dominated by the lawyers for the victim and the perpetrator, their concerns, rather than the University's, became paramount. This led to a discussion with the Athletic Department, which focused on Pierce's participation as an athlete rather than his well-being as a student.
This procedure created a risk that it might commit the University to abide by the terms of an agreement to which it was not a party, short-circuiting appropriate University procedures. A promise to permit a student to continue to participate in a varsity sport could be viewed by some to include an implicit promise to permit the student to continue as a student, a condition necessary to participation in a varsity sport. While there might be a difference of opinion as to whether that was the case here, any participation by the University in such processes runs the risk of interfering with the University's ability to pursue its ordinary and established procedures in addressing its students.
The Committee's response to these two concerns is that the University, in future, should simply not participate in the resolution of criminal matters. Any procedure that commits the University to treating a student in a particular way to facilitate the resolution of a criminal proceeding involving a student should be off limits. We recommend, instead, that a firewall be instituted, in which the University awaits the conclusion of criminal charges before deciding what the consequences of the resolution of those charges will be in any aspect of the University. The University's representatives should and in our view must decline the opportunity to participate in procedures like that utilized here.
All students, regardless of their academic concentrations or their extracurricular involvements, should face the same possibility of uniformly considered and imposed University discipline when convicted of wrongdoing, and should be able to anticipate that such proceedings will go forward in a predictable and reproducible way. The University should impose a firewall to make it impossible to circumvent those procedures.
It is of course understandable that students or their representatives would like information from the University about the likely University consequences to them of entering a guilty plea to a specific criminal charge. Such information should be provided only in the form of a set of published rules or a description of past cases, not promises or assurances of likely future treatment in the case under consideration. This will emphasize the need for transparency and accountability in University procedures. In order to prevent variability or miscommunication in the process, the Committee recommends that any entity imposing discipline create a system of published rules and/or a compilation of cases of misconduct and resulting discipline that is available for review. It should be made clear, however, that information about how previous cases have been handled is not a commitment to similar prospective treatment in any individual case.
The Committee recognizes that in any given case there may be costs to such
a firewall. Most participants in the mediated agreement in this case were
of the opinion that the resolution of the case was the best possible outcome
under the circumstances, protecting as it did the victim's privacy while
imposing some sanction on Pierce. The Committee's view is that, in the long
run, preserving the integrity, autonomy and predictability of University
decision-making will do more justice than facilitating tailored resolutions
of individual criminal matters.
The Committee concurs in the recommendation of the BICOA subcommittee that these functions in future be and remain divided.
(D) While Coach Alford believed he was acting as he had been directed in making the statements he made to the media, one set of those statements--confirming his certainty in Pierce's innocence--implied that he disbelieved and discredited the claims of the student victim, and his words were perceived as reflecting insensitivity to issues of sexual assault and sexual violence. In future, faculty, coaches and other personnel should be given adequate instruction in media discourse. Furthermore, the Committee recommends that in future such situations, all comments with the media regarding the situation should be directed to a designated media spokesperson.
(E) The involvement of the persons affiliated with Athletes in Action in attempting to resolve this matter, while perhaps well-meaning, had unintended consequences for the University community. The desire to facilitate an informal resolution of the matter may have had the opposite result. The Committee recommends that the Athletic Department take steps to limit the involvement of outside advisers, religious or otherwise, in University matters and to maintain the confidentiality of departmental information.
(F) The Athletic Department's lack of clear rules created the opportunity for a significant exercise of discretion in this case. First, there was no clearly articulated policy regarding the interim suspension of an athlete charged with a felony. Second, the Committee was told that had Pierce been convicted of a felony, he would definitely have been removed from the basketball team; had he been acquitted of all charges, he would return as a player in good standing; but that since he pled guilty to a serious misdemeanor, there was no policy in place that made clear or predictable what sanction within the Athletic Department might apply to such behavior. While this level of discretion maximizes the flexibility available to the Department to deal with such cases as they arise, it opens the door to complaints that the Department is not dealing evenhandedly with all of its students and makes it difficult for students or their advisers to predict the likely consequences of a conviction for the students‚ futures as University of Iowa athletes. This is particularly the case should the University impose the firewall advised in recommendation (B); in that case, such a protocol would provide clear guidance to students and their advisers as they contemplated their responses to criminal charges.
The Committee accordingly recommends that the Athletic Department establish a policy regarding interim suspension and a clearly articulated protocol indicating the likely disposition of a student convicted of a crime of sexual or other violence. The Committee notes with approval that the Athletic Department has a clearly stated three-step protocol for alcohol or drug offenses, which provides much-needed clarity and predictability for students and others. While the Committee hopes that incidents of student-on-student violence will be extremely rare, a protocol advising students, University personnel, and the University community how such situations will be dealt with in the future would be advisable.
In establishing its protocol, the Athletic Department should consider the community's sentiments regarding whether persons convicted of assaultive behavior towards others in the University community should continue to be the recipients of University privileges and scholarships. The Committee recommends that the President devise a suitable vehicle for structuring input by the University community into the protocol.
(G) The many discussions and conversations we have had about this incident and its aftermath suggests that our community must face and deal with issues of sexual assault and violence as an educational matter. The many intense responses this incident inspired in our community suggest that it has produced a "teachable moment"--a time when the doors are open to more profound consideration of how members of our community can treat each other with mutual respect and compassion. To their credit, many persons with whom we spoke expressed willingness, indeed, eagerness, to participate in this "teachable moment" by expanding the training that is offered on such matters and by building relationships with members of our community who can guide us and our students to a fuller understanding of these concerns. These are not simply matters for the Athletic Department, but pervade our community. We invite and encourage further movement in that direction. More specific training within the Athletic Department on sexual harassment and violence for both personnel and students on at least a yearly basis, preferably separated from the initial orientation training, would be beneficial to all concerned. The resources of the Rape Victim Advocacy Program would, the Committee believes, be available to the Athletic Department in developing and presenting this training.
April 2, 2003
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