Thursday, February 17, 2011

ASU's Reponse to Fraternity Rape Could Be Deliberate Indifference

This week, a federal district court in Arizona held that Arizona State University had to defend a lawsuit filed by a former student who was drugged and raped at a party at the Sigma Chi fraternity in 2008. The plaintiff alleges that the university's response to her report of the assault violates Title IX. In denying the university's motion to dismiss, the judge determined that the plaintiff's complaint properly alleged facts that could, if proven, provide the basis for a finding of liability against ASU. In particular, the complaint alleged an incident of harassment that was sufficiently severe, in that the plaintiff was drugged at a party and anally raped while she was unconscious. She suffered post-traumatic stress ultimately withdrew from ASU.

Also, the complaint sufficiently alleged that the university responded with deliberate indifference to harassment about which it had actual notice. This allegation actually takes two forms. First, the plaintiff alleged that an appropriate university official, the Director of Student Life - Judicial Affairs, was aware of prior incidents of sexual harassment involving the Sigma Chi fraternity and failed to take any action that could have protected the plaintiff or any other women from the risk that Sigma Chi would be the grounds for future similar incidents. Secondly, she alleged that university officials responded inadequately to actual knowledge of her own assault. When ASU campus police arrived at the emergency room where the plaintiff was being treated, they failed to give the necessary authorization for medical personnel to conduct a rape kit or authorize a nurse exam. Neither the campus police nor the university's judicial affairs investigated the incident other than to take plaintiff's statement. No one from Sigma Chi was even interviewed about the event.

This is an important decision because it allows the plaintiff to continue to press her claims not just that the university botched its response to her case, which seems pretty egregious to me, but to generally contest and shed light upon the university's culture of looking the other way about the bad behavior of a notoriously problematic fraternity. Known as a "party house," Sigma Chi had just the day before plaintiff's assault been put on probation for hazing and alcohol violations. Nor was this Sigma Chi's first offense -- the plaintiff alleged a five-year history of violations including aggression, intimidation, humiliation, and hostility toward women. If these claims prove true, mere probation seems like a mere slap on the wrist unlikely to offer meaningful protection to other students, satisfying the "deliberate indifference" requirement. That aspect of this case therefore has the potential to send the message to ASU and other universities that it doesn't pay to enable fraternities to provide the context for sexual harassment and assault.

One other observation: this is not the first time we've blogged about rape at ASU. An earlier case involving rape committed by a football player produced a settlement in 2009 that requires all the Arizona state universities to institute programs addressing issues of women's safety on campus. This obligation does not affect the Sigma Chi assault at issue in this case, which occurred prior to that settlement. But it does raise questions about the culture of sexual violence generally at ASU, and how that problem is being addressed both in and outside of the Greek system.

Decision is: Babler v. Arizona Board of Regents, Case 2:10-cv-01459-RRB (ordering denying defendant's motion to dismiss) (D. Ariz. Feb. 15, 2010) (no westlaw cite yet available)