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Conclusion outside the courtroom: Sigma Phi Epsilon sexual assault case settled after more than a year and a half

Staff March 8, 2012 News No Comments

A 19-month legal battle among several former and current members of the Ohio Wesleyan chapter of Sigma Phi Epsilon came to an end early last month without ever seeing a courtroom.
One former Sig Ep pledge instructor, along with his father, charged five other brothers with libel, emotional distress and abuse of process, saying they “falsely accused” him of sexual assault. They claimed damages greater than $25,000.
According to the complaint filed May 6, 2010, the accused brothers made “numerous false and defamatory statements…in both oral and written form” to the university’s Department of Public Safety, the Judicial Affairs department and a Sexual Assault Hearing Panel.
The pledge instructor charged his former brothers knew their statements were false and that they did not have any information to support them.
He also argued their actions were “atrocious, extreme, outrageous, intolerable in civilized society and constitute heinous conduct,” and that they “perverted (the university) proceeding.”
The accused brothers moved for immediate dismissal of the case in their favor and argued their statements were true, constituted opinion and could not legally be held libelous because they occurred in the setting of a closed hearing.
They also asserted the emotional distress charge was moot because their actions were not extreme, and any of their adverse affects were unintentional. Additionally, they said, the plaintiff presented no evidence of “psychic injury.”
They also denied the merit of the pledge instructor’s charge that they misused the proceedings because the university handled the sexual assault claims privately and never initiated any legal processes.

“COERCE, PRESSURE, AND INTIMIDATE”
The impetus for the lawsuit was a university investigation conducted after one of the brothers, along with the Sig Ep housefather, made a formal sexual assault complaint to PS in early 2010. The brother reported the plaintiff had “aggressively touched” his penis and asked him inappropriate questions about his personal life and sexual interests.
Three other Sig Ep brothers came forward with similar allegations after they heard about the initial charges.
One reported an incident in which the plaintiff tested him on the Greek alphabet and told him to remove an article of clothing with each mistake he made. After several errors, the brother “had removed all his clothing except his boxers,” according to his counterclaim. The pledge instructor “told (him) that he had to get completely naked,” but he refused.
The brother said the pledge instructor “continued to coerce, pressure, and intimidate (him) by telling him that he was the ‘new member educator’ and that (he) was a pledge, not just that, but that (he) was also the ‘pledge class president’ and that he needed to know everything better than the rest.’”
The pledge instructor told the brother to try reciting the Greek alphabet again, and that there would be “more ‘consequences’ each time (he) made additional mistakes….”
The brother was unable to accurately pass the test, so the plaintiff demanded that he “make himself ‘hard.’” He complied after much pressure, “but did it aimlessly to avoid becoming aroused.”
Following this, the pledge instructor displayed his knowledge of the Greek alphabet by holding a lit match and reciting it in its entirety before the match burned his hand. He similarly challenged the brother, holding another match under his testicles; he was unable to sufficiently recite the alphabet before the match slightly burned him.
In addition to these episodes, two other members of the fraternity joined the initial accuser in reporting incidents where the pledge instructor forced them to strip to their boxers during an initiation ritual. One was told to remove all his clothing and “spin in a circle while singing the song ‘I’m a little tea pot.’”

THE UNIVERSITY INVESTIGATES
Judicial Affairs Coordinator Michael Esler investigated the incidents after they were reported to PS. The university moved the pledge instructor from the Sig Ep house into a residence hall during the investigation.
Cole Hatcher, director of media and community relations, said the investigation was conducted “in accordance with the disciplinary guidelines outlined in our Student Handbook,” and all parties were advised of their legal options.
While a report was filed with PS, several records requests to the Delaware Police Department indicated no report was ever filed there.
Esler said he was unable to reveal other details of the investigation because they are protected under the Family Educational Rights and Privacy Act (FERPA).
The case was brought before a Sexual Assault Hearing Panel in conformity with the university’s sexual assault policy. The panel absolved the pledge instructor on all counts.
“(S)ince there were no witnesses or hard evidence, the preponderance of evidence began with a 50/50 percent margin of error,” the panel wrote in its collective report.
Esler said he has not encountered many cases like this in his time at the helm of Judicial Affairs.
“In 14 years of doing this job, I’ve probably dealt with 20-25 cases of sexual assault,” he said.
Hatcher agreed the incident was anomalous, and encouraged students to “immediately report any incident in which they feel threatened.”
“This type of incident is unusual at Ohio Wesleyan and goes against everything the university seeks to represent,” he said. “We work hard to foster an atmosphere of mutual respect and safety. We always have been and remain a community that values personal integrity.”
Matt Hunter, a freshman who deferred bids from Chi Phi and Alpha Sigma Phi, said he feels the pledge instructor was wrong in his actions.
“I understand hazing to an extent and what its purpose is, but there has to be some sort of a line,” he said. “I don’t know exactly where that is, but something like holding a match under your testicles goes beyond that line.”
Despite this, Hunter said such incidents haven’t affected his perception of Greek life in general.
“Hazing hasn’t really influenced my decision on whether I’m going to (pledge) or not, as much as the benefits of Greek life,” he said.

A SUIT WITHIN A SUIT
Charges against two of the brothers were eventually dropped, but two others—including the one subjected to the Greek alphabet test—and their attorney, James Connors, also brought a third-party lawsuit against the national entity of Sig Ep.
They charged the fraternity with two counts of civil liability for hazing and one count each of emotional distress resulting from negligence; defamation; assault and battery; misuse of legal proceedings; and civil conspiracy.
They also claimed Sig Ep owed them financial compensation for the incidents.
The national fraternity denied all the charges and moved for immediate dismissal of the third-party suit in its favor. It argued what happened to the affected brothers did not constitute hazing under Ohio law because it was not directly related to their initiation into the organization.
Additionally, the fraternity noted the only portion of its initiation rituals that calls for removal of clothing requires the pledging brothers to take off only their shirts.
Because the fraternity felt the incidents in question were not hazing, but assault and battery, it also argued the lawsuit was inappropriate because it was out of Ohio’s one-year statute of limitations on assault charges.
Delaware attorney Michael Heimlich, counsel for the national fraternity, added that complaints were only made to the university, never to his client.
Connors could not be reached for comment.

SETTLEMENT
All parties to the case—Christopher Burchinal, counsel for the plaintiffs; the brothers that countersued them and Sig Ep; and Heimlich, representing the national fraternity—settled out of court on Sept. 3, 2011.
According to the settlement’s terms, the plaintiffs were to pay $10,000 to the two remaining defendants in three installments, and also provide a doctor’s note certifying the younger one was “in treatment.”
Additionally, the national fraternity promised payment of $12,000 immediately upon dismissal of the case.
Heimlich said the settlement was only made to keep the affair out of court and legal costs at a minimum.
“The settlement was not an admission of liability,” he said. “It was made simply for economic reasons relating to the costs of litigation, and it shouldn’t be construed as an admission of liability.”
Burchinal could not be reached for comment.
Even after the settlement, it took nearly five months for the case to be officially dismissed.
Neither obligated party contacted the brothers who owed money until Nov. 15, 2011, after Connors approached Burchinal and Heimlich via email requesting documents for dismissal and the money his clients were owed. This prompted the brothers to bring legal action against both their debtors because of their failure to follow through.
Heimlich said he and his clients were not compelled to make any payments until the case was officially dismissed.
“If you look closely at the pleadings, our trigger to provide anything was based on dismissal,” he said.
According to Heimlich, an “accidental overpayment” from the Sig Ep trust fund—the source of the settlement money—was a major cause of the delay.
Heimlich and Sig Ep eventually drafted the documents for dismissal, and the case was dismissed on Feb. 1.

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