ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, February 24, 1996 TAG: 9602260094
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
MEMO: ***CORRECTION***
Published correction ran on February 25, 1996.
A headline in Saturday's paper said that a judge forced Virginia Tech
to turn over transcripts from football player Tony Morrison's campus
judicial hearings in the Christy Brzonkala case was inaccurate.
Tech had agreed to provide the transcripts to Brzonkala's attorney
but joined with her in seeking a court order because universities are
normally required to keep such records secret under student privacy
laws.
AS THE LEGAL PROCESS moves along in a Virginia Tech student's lawsuit against two football players she says raped her, the attorney general's office explains the unusual decision to ask for a state police investigation.
A state police investigation requested by the attorney general into rape allegations by former Virginia Tech student Christy Brzonkala began this week.
Meanwhile, a judge on Friday ordered Tech to turn over audiotapes and transcripts of campus judicial hearings to Brzonkala's attorney by Monday. Brzonkala is suing Tech and two football players she says raped her.
The transcripts are of hearings held last year by Tech administrative officers to decide whether football players Tony Morrison and James Crawford raped Brzonkala in the fall of 1994.
A Tech judicial panel found insufficient evidence against Crawford but found Morrison guilty of sexual misconduct and suspended him for two semesters. A second hearing found him guilty of using abusive language and imposed the same suspension. The provost then reduced his punishment to probation and Brzonkala sued.
Morrison has said that anything that happened between him and Brzonkala was consensual.
Morrison's attorney, David Paxton of Roanoke, said Friday he was not aware of the order about the audiotapes until after it was entered. He said he planned to ask Monday that the recordings be restricted to use in Brzonkala's civil case and not be released to the media or others.
Chief U.S. District Judge Jackson Kiser also gave Brzonkala's attorney, Eileen Wagner, until March 1 to file an amended lawsuit that she indicated might include new parties and change the nature of her claims against Tech. A hearing on Tech's motion to dismiss the suit, set for Wednesday, was continued until March 6.
Brzonkala's claims against Tech and the football players hinge on allegations that they acted toward her in a discriminatory way because she is female. She would not have been raped, feared for her safety or lost three semesters of schooling if she were not a woman, the suit says. Part of her suit is based on the Violence Against Women Act of 1994, which has never been tested in court.
In his own motion to dismiss the suit, Paxton asked Kiser to find the act unconstitutional because it is too broad. Paxton has filed motions in the case even though his client is not yet officially part of the suit.
"The case is in a very unusual procedural posture" because Wagner has not had legal papers served on Morrison to officially notify him and make him part of the suit, Paxton said. "This is a very unusual situation."
In another odd twist in the case, Attorney General Jim Gilmore volunteered to request a state police investigation into the alleged rape. Brzonkala didn't pursue criminal charges, choosing instead to use Tech's internal judicial process to resolve the case. Because she had waited months to come forward with her allegation, she has explained, there was no physical evidence and she feared police wouldn't believe her.
Gilmore's spokesman said punishing sexual assault has long been a priority for the attorney general. He conducted two tours of college campuses to hear from students last year and used information learned there to propose legislation in the General Assembly, Mark Miner said.
"He's made this a priority of his administration to crack down on sexual assault," Miner said. "It's an issue he wants looked into."
Because Tech is a state institution, Gilmore technically is an attorney for the university, giving him an interest on both sides of the issue. But the attorney general's office has the authority to deal with issues that conflict, as happens in many cases, Miner said.
Thomas Morris, a political analyst and president of Emory & Henry College, agreed, although he said it's unusual. He has written several studies on the powers of attorneys general.
"It's not the norm; it's clearly the exception. His normal responsibility is to represent the state," Morris said. "First and foremost, he's the attorney for the state, but he's also the legal protector of the citizenry. Occasionally, the attorney general may have to choose."
Paxton, representing Morrison, said he questions the move.
"I have a lot of questions why that happened the way it happened," he said. "But I have to refrain from speculating because it isn't particularly beneficial" to Morrison.
Tech spokesman Larry Hincker agreed it's an "oddity" that state police are investigating what is normally a function of local police after a victim makes an immediate complaint.
But, he said, "we welcome anything that clears the air.
"We tried to be as fair as we possibly could to two students," he said, but it was "an extremely difficult, very murky" case. With what he has learned about date rape, "this is probably more typical than not" of such cases.
The state police investigation is specifically focused on gathering evidence about whether a rape occurred, and not on Tech's actions afterward.
The state police interviewed Brzonkala this week, but Assistant Special Agent in Charge Bob Perry said it's too early to know what the investigation will entail. "You never know where an investigation will go."
Although Gilmore launched the investigation, the attorney general has no authority to bring rape charges under Virginia law. The decision to prosecute will be Montgomery County Commonwealth Attorney Phil Keith's.
"It's a very fascinating commentary that the attorney general's office is a legal-slash-political office" and has to make judgments on both bases, Morris said. "It doesn't come up very often."
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