Suit filed against MU in alleged sex assault

August 30, 2018

HUNTINGTON — A former Marshall University student is alleging that Marshall only moved from her dorm to an adjacent dorm the student she said sexually assaulted her and that the school waited a semester before ruling on her report.

The former student, who says she dropped out this month due to the assault and aftermath, also alleges in a lawsuit that the university wrongly found the accused student innocent despite not holding a hearing and despite already available evidence.

Her federal lawsuit, filed Monday in the U.S. Southern District of West Virginia against Marshall’s Board of Governors, argues Marshall violated the federal Title IX law and related regulations and the college’s own policy. She’s requesting compensatory and punitive damages and payment for other costs.

The suit, which doesn’t name the accused student, says that “upon information and belief, the Marshall police charged Plaintiff’s assailant only with underage consumption as a result of the incident on August 28, 2016.”

“Plaintiff was subjected to continuing fear, and she lost educational opportunities,” the suit says. It says her grades dropped and she lost her Honor’s Scholarship.

“Marshall University does not comment on pending litigation other than to say the university will vigorously defend itself and expects to prevail in this case,” university Communications Director Leah Payne wrote in an email.

The former student says she was sexually assaulted in her room in the First Year Residence Hall, South, on the seventh day of classes of her freshman year.

The suit says a male and a female witness, both unnamed, were in the room separately having sex during the 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 former student’s suit says 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 suit quotes what it says is a brief the former student’s previous lawyer wrote Marshall’s Title IX director upon appeal of Marshall’s initial exoneration. The brief says that after the accused student left the room, the former student told the female witness she was assaulted and the witness called her mother for advice.

“As (the female witness) tried to calm (the Plaintiff), I could hear (the Plaintiff) shrieking in the background and making statements like, ‘No! Oh my God!”’ the witness’ mother said in a statement, according to the suit. ”(Plaintiffs) overall behavior was that of someone who had just been traumatized, as she was screaming, crying.”

The suit says the former student’s medical records show she “had a blood alcohol level above the legal limit to operate a motor vehicle in the State of West Virginia, approximately three hours after the assault.”

The former student says she was treated at Cabell Huntington Hospital within an hour of the sexual assault.

The suit says the former student’s former lawyer requested from the school the evidence it considered in exonerating the accused student, and the provided evidence didn’t include medical and some other records.

“Although it is disputed that effective consent was given at the beginning of the intercourse between (Plaintiff) and (her assailant), even if it were, it was clearly withdrawn during the act,” the former lawyer wrote. “Both (Plaintiff) and (the female witness) confirmed that (Plaintiff) directed (the assailant) to stop, and his response was that ‘you just need to take it’ and then proceeded to ‘finish.’”

The former lawyer quoted Marshall’s Student Sexual Misconduct Policy as saying “consent to sexual activity may be withdrawn at any time” and “consent may never be given by:... Persons who are incapacitated as a result of alcohol or other drugs” and “one may not engage in sexual activity with another whom one knows, or should reasonably have known, is incapacitated.”

“That she was under the influence of that alcohol had to be obvious when she removed her shirt from time to time, revealing her sports bra,” the former lawyer wrote.

After Marshall moved the accused student from the former student’s dorm, where he lived, to an adjacent dorm, she still spotted him several times, including in and near her dorm, the suit says. The suit argues this meant Marshall failed to follow Title IX’s requirement to protect complainants before an investigation’s final outcome.

“On September 6, 2016, Plaintiff reported to the Defendant’s Director of Student Conduct that she was not able to sleep or eat and that she did not even want to leave her dormitory room,” the suit says.

The suit says the school’s Office of Student Conduct began investigating two days after the incident, and the former student’s former lawyer wrote that all of the investigation’s evidence Marshall provided seemed to have been collected within 30 days.

Yet, the suit says, it was in a letter dated Dec. 16, 2016, the last day for final exams that semester, when Marshall’s student conduct director finally said the accused student was found “not responsible” and he’d face no sanctions from Marshall. There had been no hearing despite requirements for one, the suit says.

Without a hearing, the former lawyer wrote, the former student “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 student.

The student conduct director allegedly wrote that the reasons he was exonerated were that he didn’t have a reasonable expectation of knowing the former student may have been drunk, he was invited into her room, they agreed to have sex and he stopped when asked to stop.

The suit says the former attorney appealed the finding the same day of the letter but, after his brief, Marshall regardless denied the appeal on May 16 of last year.

Reach Ryan Quinn at ryan.quinn@wvgazettemail.com, facebook.com/ryanedwinquinn. 304-348-1254 or follow @Ryan-EQuinn on Twitter.

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