Marshall settles lawsuit for $55K

March 19, 2019

HUNTINGTON - Marshall University will pay a former student $55,000 in a settlement of a lawsuit alleging the university mishandled her sexual assault case.

The original complaint, filed in the U.S. Southern District of West Virginia against Marshall’s board of governors last year, said the student felt compelled to drop out of the school because of the alleged assault and aftermath. The lawsuit said Marshall violated the federal Title IX law and corresponding university policies after she reported her rape.

The Herald-Dispatch does not typically identify sexual assault victims.

The case was settled March 5. The university released a copy of the settlement, which included the settlement amount, after The Herald-Dispatch filed a Freedom of Information Act request on Monday.

The settlement is not an admission of guilt from the university.

In a statement to the paper last week, Leah Payne, director of communications for Marshall, declined to comment further on the subject of the litigation. In a story published Thursday, The Herald-Dispatch reported incorrectly that Payne said the university would not disclose the settlement amount.

“The university remains vigilant in maintaining a safe and secure campus,” she said in last week’s statement. “In accordance with our policies and procedures, we encourage individuals to report all matters of sexual misconduct to the appropriate authorities and our Title IX coordinator.”

The student’s lawsuit said she was sexually assaulted in her room in the First-Year Residence Hall, South during the first week of classes her freshman year Aug. 28, 2016. A male and female witness were in the room separately having sex during her assault and the male witness told Marshall’s director of student conduct that, amid the assault, he offered to “switch” with the student accused of sexually assaulting the former student, the lawsuit said.

The student said she “repeatedly told her assailant to stop assaulting her, and a female witness to the assault corroborated Plaintiff’s verbal and express withdrawals of consent.”

The accused left the room and the victim was treated at Cabell Huntington Hospital within the hour after consulting with the female witness’s mother, according to the lawsuit.

Marshall’s Student Sexual Misconduct Policy says consent to sexual activity may be withdrawn at any time and can never be given by a person who is incapacitated as a result of alcohol or drugs. Alcohol was found in the victim’s system at the time of her hospital examination.

After the attack, Marshall moved the accused student from the former student’s dorm building, where he had lived, to an adjacent dorm, leaving the victim to spot her attacker several times. She also came into contact with him several times throughout campus, the suit said.

On Sept. 6, the victim reported to the university’s director of Student Conduct she was unable to sleep or eat and did not even want to leave her dorm.

The lawsuit said the Office of Student Conduct began its investigation two days after the incident, and based on evidence Marshall provided to the attorney, all evidence appeared to have been collected within 30 days.

However, it took months before a letter dated Dec. 16, 2016, the last day of final exams for the semester, was sent to the student stating the accused had been found “not responsible” and he faced no sanctions from the school. There had been no hearing despite requirements for one under Title IX, the lawsuit said.

He was exonerated because the school found he didn’t have a reasonable expectation of knowing the former student was intoxicated, he was invited into her room and they had agreed to have sex.

The attorney wrote his client “was not afforded the opportunity to present evidence and, perhaps most importantly, to question other witnesses or submit questions to the hearing officer to be asked to” the accused.

Its finding was appealed, but Marshall denied the appeal on May 16, 2017, nearly nine months after the attack.

Reporter Courtney Hessler contributed to this report. Follow reporter Taylor Stuck on Twitter and Facebook @TaylorStuckHD.