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JMU faces Title IX lawsuit

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Snow days on the Quad

Several severe storms blanketed Harrisonburg and JMU’s campus in snow this past winter, keeping students out of class for five days.

Three hundred and seventy-two days. That’s how long former JMU student Sarah Butters had to wait from the time she first told a university official about her alleged sexual assault to when JMU handed down expulsion after graduation punishments for the three male students involved.

This has recently emerged in the lawsuit Butters filed in United States District Court for the Western Distrit of Virginia two weeks ago, along with numerous other details about the case. She is suing JMU for violating Title IX laws and mishandling her sexual assault complaint.

This complaint comes after she filed a Title IX complaint last spring with the U.S. Department of Education’s Office for Civil Rights, prompting JMU to be placed under federal investigation for the handling of sexual assault cases, along with more than 60 other schools nationwide.

In the complaint, Butters demands a jury trial and seeks “unspecified economic damages” from JMU. She is being represented by the law firm of Allen, Allen, Allen & Allen. The university has not yet filed a response to the complaint.

On March 6, JMU released a statement regarding the situation. The university confidently stated that it takes sexual assault complaints seriously and has previously said that it’s equipped to deal with them within the university judicial system.

It reads, “As the university already stated, rest assured that as this process unfolds and is resolved, you will see that JMU handles such serious matters with integrity and compassion.”

The complaint states that Butters was allegedly sexually assaulted by Jay Dertzbaugh, Michael Lunney Jr. and Nicholas Scallion during a spring break trip to Panama City Beach, Florida, in March of 2013. The incident was recorded on video and later spread around the student body. Dertzbaugh is still currently enrolled at JMU, according to the campus directory. He did not respond to The Breeze’s request for an interview.

Butters states in the complaint that for more than a year, JMU discouraged her from proceeding with a sexual assault and harassment complaint through the university’s judicial system.

According to the complaint, on March 3, 2013, during the spring break trip, Butters spent the majority of the day under the hot sun and consumed alcohol throughout the day. By that afternoon, Butters was “visibly intoxicated.” She was later invited to join Dertzbaugh, Lunney and Scallion in their condominium.

The complaint then states that Dertzbaugh, Lunney and Scallion cornered Butters in the bathroom of their condominium. They proceeded to remove her bathing suit top and took turns groping and fondling her bare breasts.

The complaint continues in detail and states that Butters’ attempts to keep her clothing on were thwarted. One of the men is reported to have fondled Butters while she was pulled onto his lap.

During the incident, Butters told the men that their behavior “was not all right,” and said “no,” and asked them to “stop.” The men recorded the sexual assault on video with a cell phone, and the video would later be used as evidence. Butters was also too intoxicated to remember the event, the complaint says. But for the rest of the week, Dertzbaugh, Scallion and Lunney continued to talk about the event. When Butters later confronted Dertzbaugh, he denied the act and recording of the sexual assault, according to the complaint.

When classes resumed at JMU on March 10, 2013, the video of the assault began circulating throughout campus and most notably in the fraternity and sorority community. On March 14, 2013, Scallion, according to the complaint, showed the video to one of Butters’ sorority sisters and said, “I could ruin her [Butters’] life for this.”

Once back at campus, Butters, who had not yet seen the video, was aware that it was circulating around the student body. On March 22, 2013, Scallion sent a text message to Butters, which was included in the complaint: “Hey I’ve heard a lot of crazy rumors about spring break. Listen we don’t have any video and never meant for there to be any problems. We’re sincerely sorry about this and it’s clearly an inconvenience for all of us. We don’t want any problems and don’t want you to have to deal with any of this bulls---. This is getting blown out of proportion and please let us know if there’s anything we can do. We feel really bad and apologize for the drunken stupidity. We’re not bad guys and we really didn’t mean to disrespect you like this. And if you want let’s talk about it in person. Again, we’re [sic] extremely sorry and regret any of this happened. Hope you’re doing okay.”

Butters soon realized that she needed help in her situation and reached out to JMU. According to the complaint, Butters contacted Sam Young, Sigma Chi’s then president, and showed him the video of the assault. Dertzbaugh, Lunney and Scallion were immediately expelled from the fraternity and banned from participating in future events.

On April 12, 2013, Butters, who was then a member of the Sigma Kappa sorority, met her sorority’s adviser, Assistant Director of Alumni Relations Paula Polglase. Butters and Polglase then met with Wendy Young, the associate director of the Office of Student Accountability and Restorative Practices (OSARP), formerly Judicial Affairs. Polglase declined to comment for this article.

During this meeting, Butters explained the situation and provided Young with a copy of the video. Before viewing the video, Young explained that the judicial process requires time and effort on the victims part and would require the victim to relive the event and explain the facts and circumstances in person and in writing, according to the complaint.

Young also explained that there were a variety of sanctions, including expulsion, but indicated that expulsion was rare and highly unlikely in this case due to the details and facts Butters provided to JMU officials. According to the complaint, Butters felt that Young tried to discourage her from pursuing further action through the university’s judicial process.

The complaint states that Butters wanted JMU to handle the case without her involvement, but the university told Butters that it would neither investigate nor act upon the case independently.

Between April 26, 2013, and Dec. 6, 2013, Butters received one email from Young. In this email, Young asked Butters if she was all right and if she had decided how she wanted to proceed with any actions regarding the assault.

The complaint says Butters struggled socially and academically during this period.

On Nov. 4, 2013, Butters’ father, William Butters, emailed Senior Vice President of Student Affairs & University Planning Mark Warner, outlining his daughter’s sexual assault incident and questioning JMU’s investigation of case.

Eventually, it was suggested that Joshua Bacon, the associate dean of OSARP, address Mr. Butters’ concerns.

“After reviewing the video, Dr. Bacon made the extraordinary comment to Sarah Butters’ father that he believed the acts depicted in the recording were consensual,” the complaint said. “This remark reinforced the perception of both Sarah Butters and her father that James Madison University was not interested in imposing any legitimate sanctions against the perpetrators of an obvious sexual assault, and was motivated instead by the desire to avoid negative publicity concerning the university.”

Bacon was not immediately available for comment.

Butters eventually proceeded with her complaint and formally signed papers on Jan. 10, 2014, starting the university judicial process.

The three men were eventually handed down post-graduation expulsion punishments in April of 2014. The punishment would still allow them to graduate, but ban them from returning to campus after graduation. Lunney and Scallion both graduated from JMU last spring and received their diplomas.

Dertzbaugh was allowed to remain as an active student and returned to campus this year. According to the complaint, JMU made no effort to make sure Butters and Dertzbaugh wouldn’t interact on campus. The complaint says that JMU told Butters she would be responsible for monitoring compliance and notifying the university if there were any violations. Butters withdrew from the university on May 30, 2014 after her financial aid was revoked due to her poor academic performance. The complaint adds that she continues to “suffer from substantial mental and emotional anguish.”

Up until this point, JMU says it has been unable to share its side of the story due to Family Educational Rights and Privacy Act (FERPA) constraints. However, the university now says they will be able to release more information now that a lawsuit has been filed.

However, despite the latest developments in the case, JMU said in its March 6 statement that no new allegations have been made.

“The plaintiff already made the same allegations in the media and in a complaint to the U.S. Department of Education’s Office for Civil Rights,” the statement said. “No new allegations are included in this lawsuit that were not raised in other venues previously.”

JMU stresses the importance of withholding judgement in sexual assault cases, especially in those where only one side has been presented.

“Withholding judgment in this case is especially important because the complaint contains mischaracterizations of events and distortions of fact,” according to the statement.

As previously reported by The Breeze last semester, only four or five expulsions have taken place at JMU in the past 15 years, according to Bacon. However, none of those expulsions are related to sexual assault cases. Bacon also said that OSARP only processes about two or three sexual assault cases each year.

According to Bacon, consequences for sexual assault depend on each case. Some violations can result in suspension or expulsion from housing, probation until graduation or for any length of time, and between 10 to 15 hours of required mentoring. Major violations are punishable by suspension, immediate expulsion or post-graduation expulsion sentences.

The university hasn’t yet released any new information about Butters’ case, but details are likely to emerge once the university files its response in district court. It has until May 4 to do so.