SIGMA CHI CHAPTER AT ARIZONA STATE SUED

Tim Burke, Manley Burke, tburke@manleyburke.com

On February 1, 2010, a lawsuit¹ was filed against “the Sigma Chi Fraternity at Arizona State University” and that Chapter’s House Corporation, along with two specifically named members of the Chapter and 100 John Does.  Because of the nature of the claims, neither the plaintiff nor the two specific defendants’ actual names are being used.

The suit alleges that the Sigma Chi Chapter organized a toga party at a local sushi restaurant.  The Chapter arranged to bring members and pledges of Pi Beta Phi to the party on a bus.  At the party, it is alleged that the Chapter provided alcohol to underage minors, including the plaintiff, and that one of the named defendants gave the plaintiff “an adulterated alcoholic drink that had been spiked with a drug designed to incapacitate her and impair her memory.”

The suit further claims that the plaintiff’s purse, as well as several others, were removed from the bus and ultimately taken to the Sigma Chi Chapter house in order to “lure the women at the toga party … to the Fraternity house.”

Plaintiff’s next memory is alleged to be that on the morning of February 2, 2008, she awoke in the Sigma Chi House, missing her purse and some of her clothes and in severe rectal pain.  She subsequently underwent a sexual assault examination that diagnosed a sexual assault through “forced anal penetration” and possible vagina penetration.  The suit claims that the assault was conducted by named defendant No. 2, who was known by the Chapter to have had a history of sexual misconduct.  It is claimed that defendant No. 2 was known by the other members of Sigma Chi as “THERAPIST,” which stood for “The Rapist,” which was written on the door of his room.  It is alleged that no disciplinary action was taken against either of the defendants by the Chapter.

The plaintiff attempted to return to the ASU campus, but because of suffering from Post Traumatic Stress Disorder and extreme fear on campus, especially at night, she ultimately left the University.  She is now enrolled in a community collage in Tucson.

The lawsuit claims that the Sigma Chi Chapter had a long history of misconduct, which is detailed in the Complaint, including a suspension of the Chapter the day before the alleged sexual assault occurred.

The suit states 13 separate claims or causes of action, including civil conspiracy, assault, battery, negligence, negligent supervision, infliction of emotional distress, premises liability, nuisance, joint adventure, respondeat superior and ratification and agency.  Perhaps most unique is the ratification and agency claim in which it is alleged that because the Chapter took no action to discipline either of the named defendants, the Chapter essentially ratified the defendants’ conduct just as if they had authorized the actions.

By naming 100 John Does, the plaintiff’s attorneys are leaving open the likelihood of amending the lawsuit to name additional specific defendants should evidence determine that others were specifically involved.  In the interim, the suit claims, in part based upon the history of misconduct both by the Chapter and by one of the named defendants, that Sigma Chi failed to adequately select, train, control, discipline and supervise its members.  The suit specifically claims that the named defendants, and others, engaged in a conspiracy when two or more of them acted together to accomplish an unlawful goal, the sexual assault of the plaintiff – one member providing the adulterated drink, a member removing a purse and taking it to the house, and a member actually committing the sexual assault – all alleged to be part of the same conspiratorial misconduct.

This lawsuit is in its very early stages.  At this printing, an answer has not even been filed.  There may be another side to this story.  But the suit should serve as a clear warning of the potential consequences of sexual misconduct in the chapter house.  It may not only be the perpetrator who is sued or who is ultimately held civilly liable.

Remember, the individual members of a chapter are not the deepest pockets.  A tough plaintiff’s attorney is going to look to others who are believed to be better able to pay significant financial judgments.  That is why a plaintiff will look for supportable legal theories that can be used in an attempt to establish liability on the part of the fraternity, its house corporation, or its national organization.

Frequently, claims of sexual assault are met with an attempted defense that whatever occurred was consensual.  It is certainly possible that that kind of a defense may be raised in this case.  In past cases, there have been claims of members of an involved men’s fraternity putting pressure on members of the victims’ chapter to convince the victim to drop her claim.  Such pressure only serves to endanger the men’s group further and ensnare the women’s group if they agree.  The better course for a women’s chapter to follow is to provide support for the victim making it clear that the fraternity supports her and is concerned about her and will respect any decision she may make to criminally prosecute or civilly sue the perpetrators.

¹  Case No. CV2010-003278, in the Superior Court of the State of Arizona, County of Marcopa.