Ex-student claiming sex assault sues Butler, fraternity

A lawsuit filed by a former Butler University student-athlete alleges the university and a now-suspended fraternity failed to take necessary action to remove an allegedly known sexual predator from campus, leading to the student-athlete’s rape at a fraternity party in late 2016.

Anonymous plaintiff M.H. filed her complaint, M.H. v. Butler University, Lambda Chi Alpha Fraternity, Inc., and Alpha-Alpha Zeta Alumni of Lambda Chi Alpha, Inc., 1:18-cv-2633, against Butler and its chapter of Lambda Chi Alpha in the U.S. District Court for the Southern District of Indiana on Monday. M.H. was a student and lacrosse player at Butler during the 2016-2017 academic school year.

M.H.’s time at Butler coincided with M.K., another student-athlete who played on the Butler football team. M.K. was also a member Butler’s Lambda Chi Alpha chapter, which was on probation during the fall 2016 semester and was prohibited from serving alcohol at its social events.

Despite that prohibition, M.H. attended an LCA party in December 2016 and was served alcohol. After leaving the party for a couple of hours, M.H. returned to the campus fraternity house to assist a friend, whom she found drunk and lying on a couch.

While trying to help her friend return home, M.H. was approached by M.K., who asked her to come to his room to help him find a necklace that another partygoer had lost. Once in the room, M.K. began kissing M.H. and laid on top of her, holding her down. When M.H. told M.K. she would not have sex with him, M.K. allegedly said, “We’ll see,” according to the complaint. He then forced her into oral and vaginal sex while she cried into a pillow.

The next day, M.H. reported the assault to her math teacher, who in turn told the university’s Title IX coordinator, Stacie Colston Patterson. Patterson began speaking with M.H. about her experience at the LCA party, and the fraternity’s Butler chapter was subsequently suspended until at least the spring of 2021.

During her conversations with M.H., Patterson disclosed that she had received information about another sexual assault allegedly involving M.K. That assault was reported by Jane Doe, a Butler volleyball player who informed two Butler employees — the volleyball coach and an academic adviser — in August and October of 2016 that she had been sexually assaulted by a Butler football player.

Neither employee asked Doe to name the football player, and Doe withdrew from the school in October 2016. Patterson reached out to Doe the following January, and the former volleyball player officially identified M.K. as her alleged assailant.

Meanwhile, M.H. formally filed a Title IX complaint with the school in February 2017, and the university instituted a no-contact order between her and M.K. After a Title IX hearing in April, M.K. was expelled from the university.

Then in June, M.H. filed a criminal complaint against M.K. with the Butler University Police Department. According to her complaint, “BUPD failed to conduct a timely criminal investigation” due to instructions from university President James Danko “to ‘back off’ when it came to illegal activities taking place at fraternities.”

Like Doe, M.H. withdrew from Butler in May 2017 and was required to attend summer school before transferring to another university the following fall.

M.H.’s civil complaint seeks damages for four counts of alleged unlawful activity on the part of the university, fraternity and the Alpha-Alpha Zeta Alumni of Lambda Chi Alpha, Inc., which owns the property where the fraternity house is located. The first count alleges Butler violated Title IX when it had “actual notice” that M.K. had sexually assaulted at least one female student before assaulting M.H., yet showed deliberated indifference “by taking no responsive action to investigate Doe’s allegations” prior to M.H.’s assault.

Similarly, the complaint alleges the university was indifferent when it failed to “timely advise her of her options to pursue a criminal complaint and/or seek professional counseling, failing to timely remove M.K. from campus, and via its campus police department, failing to timely investigate M.H.’s criminal complaint against M.K.” As a result, M.H. suffered damages, she claimed.

The complaint also alleges Butler was negligent because it knew or should have known M.K. had a history of sexually assaulting female students. Thus, the school had a duty to protect M.H. from foreseeable criminal misconduct, but breached that duty by allowing M.K. to remain on campus.

The female student-athlete also alleges a negligence count against LCA, claiming the fraternity had a duty to prevent M.K. from becoming a member or to remove his membership. Failing to do so was negligent retention and supervision, she said.

Finally, the complaint alleges a premises liability claim against the fraternity alumni group, which breached its duty to M.J. by “not taking any reasonable precautions to protect M.H. from rape and/or sexual assault.” M.H. said “(r)ape and sexual assault were foreseeable and dangerous risks at parties involving alcohol at the LCA Butler fraternity house,” and in December 2016, “it was foreseeable that female invitees … could be at risk of being raped and/or sexually assaulted” while at the house, “particularly at social events where alcohol was served.”

M.H. also alleges there was a culture of sexual assault at Butler at the time of her rape, citing to numbers in the 2016 Annual Security Report that showed 12 reports of rape – including 11 on campus – and five reports of fondling. Further, through Aug. 20, 2018, BUPD had received at least 10 reports of rape, according to the complaint.

M.H. seeks compensatory damages, including the costs of transferring to another school, emotional distress damages, punitive damages, attorney fees and pre- and post-judgment interest. She is represented by Kathleen A. DeLaney and Christopher S. Starke of Indianapolis law firm DeLaney & DeLaney LLC.

In a statement to Indiana Lawyer, a Butler spokesman said the campus “takes its obligations under Title IX very seriously, including in this case in which the university thoroughly investigated the allegations and expelled the accused student after completing the investigation and hearing process.”

“Butler is committed to providing a safe and secure environment for all members of its campus community,” the spokesman wrote in an email to IL. “We have prevention, response and awareness programs, policies, and practices in place to address complaints of sexual harassment and sexual violence, and have enhanced these over time to increase effectiveness.”

A spokesman for the fraternity did not respond to a request for comment on the litigation, which has been assigned to Judge William C. Griesbach and referred to Magistrate Judge Matthew P. Brookman.