EMU: Victims in rape suit can't blame school for 'information it did not have'

Mark Hicks
The Detroit News

Challenging a federal lawsuit filed by 11 women who claimed their sexual assaults were not properly investigated, Eastern Michigan University officials said in response Wednesday the school worked to help the students but couldn't advance when they declined to report the assaults or join investigations.

“By choosing to not report their assaults to the University and/or not to participate in any proceedings against their assailants, Plaintiffs did not provide the University any opportunity to respond or to help,” the university’s lawyers said in the filing.

Students and community members rallied in March in front of the Pease Auditorium on the campus of Eastern Michigan University where speakers had the chance to share their stories of rape and sexual assault and to show support for all survivors.

“Plaintiffs simply cannot place blame on the University for not responding to information it did not have; the University cannot respond to instances of assault it does not know about. Nor can – or would – the University try to dissuade a survivor from moving forward or force a survivor to participate in investigations or proceedings against their assailants.”

The response filed in U.S. District Court came nearly two months after a group of unidentified women sued the Ypsilanti school’s board of regents, campus police and several fraternities.

The lawsuit alleges fraternity members covered up sexual misconduct that emerged at the Alpha Sigma Phi fraternity house during a so-called "Mystic Circle" event created as a judgment-free confessional.

The suit alleges nine women were sexually assaulted by former Alpha Sigma Phi member Dustyn Durbin. D'Angelo McWilliams, another former student named in the litigation, was accused of sexually assaulting a woman while attending the university and working as a Washtenaw County Sheriff's deputy 

Both men as well a third, Thomas Hernandez, face sexual assault charges in Washtenaw County over related allegations. Hernandez, former president of EMU's Interfraternity Council, the governing board for fraternities, allegedly gang-raped a student in 2018 after a fraternity party, according to the lawsuit.

The 13-count lawsuit seeks more than $75,000 in damages for civil rights and other violations, including sexual assault, retaliation and gross negligence.

In the 259-page response Wednesday, EMU’s lawyers rejected how the women characterized their interactions with officers and staff when discussing the assaults.

While the lawsuit alleges university police long knew about the assaults yet failed to file reports, the school "is, and has been, steadfast in its commitment to respond to reports of sexual misconduct,” EMU’s lawyers wrote. “The University takes all reports of sexual assault seriously. It investigates and adjudicates all complaints of sexual misconduct that it is able to based on the participation and information contributed by survivors.”

Some of the criticism in the suit centered on Melody Werner, the school’s former Title IX director. Among other claims, she was accused of allegedly failing to report accusations to law enforcement in 2018, allowing a former student "to continue his serial sexual assaults."

Colleges and universities that receive federal funds are required to establish procedures for responding to instances of sexual violence on campuses under Title IX. Schools must also have a Title IX coordinator to oversee investigations, coordinate disciplinary actions and ensure compliance with federal guidance.

A woman listed as Jane Doe 1 said she told Werner about an attack by Hernandez and McWilliams. Werner did not launch a probe and made comments such as “no one is going to believe” her, according to the suit.

EMU’s lawyers argue Werner, who later became director for the Michigan State University Office of Institutional Equity, could only explain the investigation process to complainants, assign an investigator to interview witnesses as well as “provide support and information to all students involved.”

She repeatedly contacted the woman about speaking to police, but "despite Werner’s outreach, support, and encouragement, Jane Doe 1 made a decision not to participate in any Title IX investigation and, likewise, did not report the incident to EMUPD, did not contact EMUPD, and was unresponsive to EMUPD’s further outreach,” the university’s lawyers wrote Wednesday.

The suit asserted a campus police detective failed to act on that woman’s allegations or report them to other law enforcement after learning about the situation in social media posts. EMU said the detective connected with the woman through Werner but she chose not to participate in a police probe.

“Mindful of the fact that repeated contact for a victim of sexual assault can have the effect of retraumatizing the victim, EMUPD wanted to be respectful of Jane Doe 1’s choice not to pursue an investigation of her alleged sexual assault,” the attorneys said. “It is furthermore specifically denied that (the detective) had any duty to make a report to (Ypsilanti police), particularly in the absence of any communication from Jane Doe 1… the University denies the allegation that (the detective) and/or EMUPD were engaged any in any effort to ‘cover up’ Jane Doe 1’s sexual assault.”

FILE 0 Students and community members rallied together Sunday in front of the Pease Auditorium on the campus of Eastern Michigan University on March 28, 2021.

Reached Thursday, Todd Flood, an attorney representing the women in the case, said "after reading their answer, there must be a disconnect with the Title IX law and their understanding of it. We’ll have to try this case in a courtroom."

Walter Kraft, EMU's vice president for communications, said Thursday the university's response "does not dispute or challenge any survivor's allegation that they suffered a sexual assault. It focuses on the important legal distinctions between what the plaintiffs’ counsel claims are the University responsibilities in these cases and our actual responsibilities under federal law (Title IX).

"We respect the bravery of the survivors for coming forward to tell these stories, and we are absolutely committed to our students' safety at Eastern." 

Kraft added: "Criminal proceedings for the actions described in the lawsuit continue against three suspects charged in these cases. We believe the criminal system is the appropriate place for fact finding and resolution."  

The suit also accused EMU officials of ignoring an allegation by another woman in 2018, failed to meet with a second one about her alleged assault nearly two years after it happened and didn't issue a no-contact order against an accused student in a third case.

The university denied those claims Wednesday, saying it "acted reasonably and in good faith at all times with regard to the decisions at issue" in the lawsuit and complied with its policies and procedures.

"One or more of Plaintiffs’ claims of alleged harassment was not reported to an appropriate person and deprived the University of notice of the alleged harassment," the school's lawyers wrote. "The University was not deliberately indifferent to any alleged unlawful sexual conduct. ...The University did not create a hostile environment for Plaintiffs."

EMU seeks a jury trial in the case, according to its response Wednesday.