At A&M, a family's outrage and questions about school's handling of indecent exposure incidents

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COLLEGE STATION - The alarmed mother at first had trouble figuring out what her daughter was saying through the sobs on the phone that late October day. What on earth could have gone wrong with her daughter while tutoring fellow students at Texas A&M?

"She's an honors student, and she was doing what she loved, which is helping others," recalled the mother, herself an A&M former student with longtime ties to the university. "When I received that phone call, she was sitting on a curb at the Memorial Student Center, facing Kyle Field. She was born and raised an Aggie, and she was raised to respect the honor code.

"And she was bawling her eyes out because of this."

"This" was A&M football player Kirk Merritt's exposing his genitals to the daughter, whose name is withheld to protect her identity, during a private tutoring session in A&M's Bright Football Complex. Merritt has pleaded not guilty to two counts of indecent exposure following his arrest last fall.

"It was almost like I wasn't there, until I got nervous and started to pack up and leave," the victim told the Chronicle. "Then (Merritt) just stared at me, which was disconcerting, and made me want to leave even more."

JOCK ITCH DEFENSE: Attorney's excuse for his client's indecent exposure charge

PHOTOS: Texas A&M football players arrested since 2010

Texas A&M receiver Kirk Merritt is facing two charges of indecent exposure in separate incidents with school tutors.

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Texas A&M receiver Kirk Merritt is facing two charges of indecent exposure in separate incidents with school tutors.

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Merritt, a sophomore receiver, has since admitted to exposing himself during two tutorials, and his attorney cited a reason prompting guffaws for why Merritt did so to two different tutors in about a 24-hour span.

"While Kirk is very embarrassed about this situation, and has apologized to the two tutors that he offended, he did not intend to gratify anyone by exposing himself," attorney Rick Davis said. "The fact is that Kirk had a bad case of jock itch."

That defense prompted incredulity from the first victim. The second victim declined an interview for this story.

"It could not have been jock itch, that doesn't fit the situation at all," the first victim said of Merritt's overall actions in their time together during the session. "That's just absurd."

A&M responded last Friday by offering a timeline concerning Merritt's arrest, subsequent suspension and reinstatement on Feb. 1 following the conclusion of an A&M "Student Life Conduct Conference" that is separate from the athletics department.

Merritt, who practiced with the Aggies during spring drills that wrapped up last week, is awaiting an arraignment date in the Brazos County Courthouse that was delayed last week, per Davis's request. The attorney is arguing that Merritt's actions in front of the two young women in separate tutoring sessions don't meet the requirements for indecent exposure.

"We think that Kirk's conduct falls squarely under the 'Disorderly Conduct' statute," said Davis, meaning Merritt's actions did not fit the description of the current charges, which include the intent to arouse or gratify sexual desire of any person present. Instead, disorderly conduct requires only that a defendant is "reckless" about others who might be present who will be offended or alarmed by the act.

Merritt's side is contending "vigorous scratching" led to "the exposure of his penis" in both instances, according to documents obtained from the in-house, private conduct conference concerning Merritt last winter on the A&M campus.

The A&M hearing has nothing to do with the criminal case, although its outcome allowed Merritt to rejoin the football team for spring drills based on what the parents of the first victim describe as a "shocking" resolution, considering the in-house panel's constricted opinion of what exactly comprises "sexual exploitation."

Two A&M officials familiar with the process said Merritt has been a model student since his transfer from Oregon nearly a year ago, and that nothing in his past would indicate he was capable of purposely exposing himself to females for sexual gratification.

The father of the first victim believes Merritt's attorney will try and drag the case through the court system so Merritt can play football for the Aggies along the way.

The father, himself an Aggie and a longtime A&M football season-ticket holder and donor, finds the "jock itch" defense unfathomable concerning his daughter, who along with the other victim quit their jobs as tutors to A&M athletes not long after the incidents. Both victims are still students at A&M, including one who's a wife and mother and closing in on a doctorate degree.

"You see something like this happen in the news and you're sad, you shake your head and say, 'This is crazy,'" the father said. "But when it happens to your own daughter …. I would love for (A&M coach) Kevin Sumlin to answer this: What if this was your two daughters? What would you do?

"Would you expect the player to just go play football again? I think I know the answer. But Kevin Sumlin isn't in my shoes. He's in the shoes of trying to win a championship. That's the least of my concerns."

After news of Merritt's indecent exposure charges broke last Friday, Sumlin bypassed his typical post-spring game press conference on Saturday following the annual Maroon & White game, citing through a spokesman that the coach all along had planned to spend that time with recruits on campus.

It was the first time in six Maroon & White games at A&M that the coach failed to offer a post-spring game analysis and field questions from the media. The first victim's family had hoped to hear the coach's response to the charges concerning Merritt, a once touted recruit from Destrehan, La., who transferred to A&M following his freshman season at Oregon in 2015.

A&M has pointed toward the secretive conduct conference held before an on-campus panel comprised of A&M staff members as the primary reason for Merritt's return to the football team. Private documents obtained by the Chronicle concerning the hearing claim Merritt's actions do "not fit the rule of sexual exploitation."

According to one of the documents the panel concluded, "We believe the vigorous scratching, which is a biological response to a skin condition, led to the exposure of his penis."

According to a person with knowledge of the private hearing, Merritt said he likes to completely shave his genitals, and that his girlfriend helped him do so two days before the first tutorial. Merritt claimed he failed to use powder following this particular shaving, causing ongoing discomfort, according to the person.

Nowhere is it explained why Merritt didn't simply excuse himself to a Bright bathroom in either instance to try and take care of his itching, instead of exposing his genitals to two tutors in two different sessions.

"I'm sickened," the first victim said of the timeline since she first reported the exposure. "I've taken to boycotting Texas A&M athletic events because of this. It's just wrong. I grew up an Aggie and am a third-generation Aggie. This was not something I expected."

The victim added, her voice cracking with emotion, "A&M football has been a part of my life, and a part of my experience as an Aggie. It's almost disillusionment at this point, that A&M is not any better than Baylor or any other school that does this kind of stuff."

Baylor has been submerged in a sexual-assault scandal the past year that cost football coach Art Briles, athletic director Ian McCaw and chancellor Kenneth Starr their jobs.

According to A&M police probable cause statements obtained by the Chronicle through an open records request, the first victim claimed Merritt put his hands in his shorts and followed with a "rhythmic up and down motion" until his penis was "exposed over the top of his elastic banded athletic shorts."

Merritt then rubbed himself, according to the probable cause statement, while the victim grew nervous and rambled. She immediately ended the tutorial session because of, as she told police, the "need to get out of here."

Not long after, the victim called her mother in tears, and the mother said the victim's superiors were slow to respond to the victim's initial claims. That slowness in returning text messages and calls likely led to the exploitation of another victim by Merritt less than a day later, the mother claimed.

The victim's superior in the tutoring program agreed to meet with the victim about 24 hours after the first incident, the mother said, what turned out to be only about an hour after Merritt exposed himself to a second victim.

"My daughter was mortified, saying, 'Mom, they're not going to believe me, they're not going to believe me,'" the mother recalled this week of her daughter going to her bosses with the account of Merritt's exposure. "I told her, you have to do what is right."

According to a second probable cause statement concerning the second victim, "The victim noticed the defendant's shorts were pulled down and his penis was in his left hand in plain sight." The second victim then saw movement in Merritt's groin area as she looked away, according to the statement, and she did not look directly at him again as she grabbed her belongings and ended the tutorial session.

The tutors then both went to university police concerning the exposures. A&M said last week Merritt was suspended once Sumlin found out about the claims from the victims. (Merritt was already sitting out the season under NCAA rules after his transfer from Oregon last summer.)

Once the student conduct conference panel ruled in December that "we do not believe the accused took sexual advantage of the women that were involved" - but that what he did still amounted to disorderly conduct - Merritt returned to the team in time for spring drills, per the athletic department's approval, and he's scheduled to play this fall.

He is on "conduct probation" this semester from A&M, why he didn't play in two public scrimmages for the Aggies this spring, multiple insiders with knowledge of the case said.

The revelation that a college football player who exposed himself to two tutors in a day's span is still part of the team didn't surprise Brenda Tracy, a rape survivor and advocate for sexual assault victims who speaks at college campuses across the country (including to Texas A&M athletes in January). Tracy in 1998 was raped by four men, including three Oregon State football players.

"This is disturbing behavior, it wasn't an accident, and it wasn't because of jock itch," Tracy said of the Merritt case. "He exposed himself to two different people. Even if he had jock itch, you would make sure you wouldn't expose your penis to women. (A&M is) minimizing this behavior, and it's the type of behavior that leads to other types of sexual violence.

"We have to start taking these cases more seriously. We have to start intervening sooner, and not say, 'Boys will be boys,' rather than waiting for an act of sexual assault to happen."

A&M's dean of student life, Anne Reber, said this week that the student life conduct hearing is a thorough inquiry comprised of only A&M staff members. She declined to address the specifics of the Merritt conference citing privacy laws.

"There are no students involved in our student conduct process, outside of the complainants or respondents," Reber said.

A&M president Michael Young's office declined comment on the Merritt case, instead referring the Chronicle to Reber. Young has championed "Step In. Stand Up" this month, A&M's sexual assault awareness and prevention campaign during the national Sexual Assault Awareness Month. The first victim's father said A&M's response to the Merritt case while publicly promoting sexual assault awareness makes university administrators "hypocrites."

Meanwhile Merritt awaits a date in an actual court of law, and the Aggies won't officially practice again as a team until early August. A&M opens its sixth season under Sumlin at UCLA on Sept. 3, and the coach is under swelling pressure to compete for a Southeastern Conference title following three consecutive 8-5 finishes.

The initial victim said she doesn't care what kind of pressure the coach is under to win.

"I want to see justice served, and soon," she said. "Not just for me, but for (potential) future victims. Our athletes need to be held to the same standard as every other Aggie. I guarantee you that if allegations like this had been brought against a normal student, he would have been kicked out of the university.

"As an athlete, he's getting special treatment, and the fact that A&M is ignoring it makes it worse. I'm worried for the next girl."