Two lawsuits filed over alleged sexual assault at fraternity party

Wednesday, September 21, 2016 - 3:32pm

Two lawsuits have been filed in the past month over an alleged sexual assault at a University of Michigan fraternity party in January 2016.

The first lawsuit, from a now-former male University student, was filed against several employees of the University of Michigan for wrongfully causing the student leave the University following the alleged assault, according to court documents.

“The Appeals Board applied an unconstitutionally vague or legally incorrect definition of the term ‘incapacitated,’ applied incorrect standards of review, and arbitrarily and capriciously set aside the investigator’s findings and conclusions, thus denying Plaintiff due process,” the complaint reads.

The second lawsuit, filed Wednesday by the female University student who filed the claims of sexual assault against the male student, seeks to block the male student from gaining readmission to the University. It charges that he is not respecting the terms of an agreement reached during UM’s investigation of the female student’s complaint for him to voluntarily separate from the University.

The original case was investigated under UM’s previous sexual misconduct policy, which was modified in July 2016 to clarify several definitions, including on what constitutes consent and incapacitation, as well as change the sanctioning process.

The male student’s lawyer, Deborah Gordon, said Tuesday that she thinks the University’s choice to update the UM sexual misconduct policy acknowledges that the previous policy was unclear about the definition of incapacitation and intoxication. Because of that lack of clarity, she said, the original case against her client was unfair, because her client could not tell whether the female student was incapacitated.

“I believe I am going to prove the University of Michigan violated my client’s constitutional rights,” she said. “I cannot emphasize enough the University has admitted the [previous] policies are not viable under the law.”

In an email interview with The Michigan Daily, the female student’s lawyer, Jennifer Salvatore, an attorney from Salvatore, Prescott and Porter, said she believes the definition of incapacitation did not have to do with the appeals board’s decision, and suggested that witness testimony was sufficient to determine the female student was incapacitated.

Salvatore added that the original investigator did not focus fairly on all witnesses and the appeals board recognized this in their decision.

I think the investigator focused more on the observation of witnesses who were his fraternity brothers and who saw claimant at a distance prior to the sexual encounter as opposed to unbiased neutral witnesses,” Salvatore wrote. “The appeals board recognized that and reversed, which is their prerogative.”

According to the female student’s lawsuit, the male student agreed to a voluntary separation from the University during UM’s investigation of the female student’s complaint. Under a voluntary separation, an individual leaves the University but it is not considered an expulsion, and it does not show up as a disciplinary action on a transcript.

The female student’s complaint alleges that during the January 2016 fraternity party, the male student took the plaintiff to his bedroom, where he removed all of her clothing. The female student states she told him, “No sex,” but that he both vaginally and orally assaulted her.

The female student’s victim statement, provided by her lawyers, says a female witness and her friends who walked into the male student’s room helped her home after the incident, and that later that night she went to the hospital, where doctors performed a rape kit.

In response to the female student’s lawsuit, Gordon said she thinks the female student’s claims have no value and are based on threats.

University spokesperson Rick Fitzgerald said he has nothing to add on the lawsuit filed Wednesday morning by the female student.

Employees named in the male student’s case include David Baum, assistant dean of the University Law School, Rackham student Tabitha Bentley, Nadia Bazzy, assistant director of the Office of Student Resolution and E. Royster Harper, vice president for student life, who all were on the appeals board during the investigation.

Under the University’s new policy, the individuals that makeup the appeals board and the overall review process have changed in several ways.

In particular, the appeals process has moved from a sole representative responsible for determining the sanction to a separate board, composed of two faculty or staff and a student. Under both policies, the sanctioning occurs after a review board looked at the case.

The previous policy also stated that if the respondent and complainant agreed to a sanction without appealing, the agreement would be binding and the respondent would be required to fulfill the sanctions or interventions included. Neither complainant nor respondent would be permitted to appeal the sanction if the parties agree to the sanctioning.

Under the new policy, if either the respondent or claimant takes issue with the sanctions, they can appeal to an external, third-party reviewer, chosen by the office of the general counsel and the vice president for student life.

This story has been updated with responses from representatives for the University and the female student. This is a developing story, check back for more updates.