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Trial brings out criticism of University’s disciplinary process

Scott Brodfuehrer | Monday, September 1, 2003

SOUTH BEND – The University’s disciplinary process came under harsh review from both the victim and the prosecuting attorney during the trial of Abram Elam.

During her testimony, the victim said she was told by associate vice president of residence life Bill Kirk not to report the rape to the police, an account Kirk disputed Friday when he was recalled to the stand by the defense. Kirk said he “absolutely did not” tell the alleged victim not to contact the police with her story.

“I know I did not dissuade her from reporting the incident to the police. That is not my practice or policy. I did not do that; it would have unethical and inappropriate,” said Kirk.

During Devlin’s cross-examination, Kirk said it was possible that he told the victim it might be easier if she solely went through the University’s disciplinary process.

“I think dealing with [the incident] in the University forum is easier than in this public forum … this is a stressful setting for me and everyone involved. But I would not say that to her in an effort for her not to pursue [legal action],” Kirk said.

Devlin asked Kirk if he had taken notes during his conversation with the victim that would prove this statement. Kirk said that he did not, prompting the prosecutor to ask why he would not take notes, given his training as an attorney.

“I would not normally take notes in the presence of a student … I am trained as an attorney, but my role as a support person is to get her the resources she needs,” Kirk said.

Kirk said it was possible he could have other notes from the case, but these would have been turned over to the General Counsel’s office. Devlin then asked Kirk to provide her with any notes that he turned over to the General Counsel, a request Kirk said he would fulfill.

However, following the end of the trial Saturday, Devlin said she did not receive these notes.

“I haven’t heard a word from [Notre Dame],” Devlin said.

Defense attorney Mark Lenyo capitalized on the disagreement between Kirk and the victim over the advice that was given regarding contacting the police when he asked the jury who was more credible.

“The victim said Bill Kirk told her, ‘Don’t go to the cops, don’t go to the police.’ But Bill Kirk said he directed her to a portion of du Lac [dealing with support services for sex offense victims],” Lenyo said in his closing argument.

Thursday, lead investigator Detective Steve Metcalfe of the St. Joseph County Police Department also testified that a search warrant uncovered a copy of the woman’s statement to Notre Dame officials at Smith’s house.

Devlin said advance knowledge of the victim’s claims could have allowed Smith to destroy physical evidence mentioned in the account.

But University spokesman Matt Storin said giving the alleged victim’s statement to the accused parties is a normal part of the campus disciplinary process.

“We only give the statement to law enforcement if a subpoena is issued, although the victim could give the statement to law enforcement,” Storin said. “Our process is our process. If there had been indictments made during that time, the process would have been halted.”

In an April 8, 2002 interview of the victim by the St. Joseph County Police, she said she felt betrayed by the way she was treated by the University.

“It makes me feel like they say, ‘We will help you out,’ but they don’t care about me,” the victim said.