ASU police officials said Sunday they chose not to pursue a criminal investigation after a student in 2008 alleged that she was raped by two Sigma Chi members.
ASU Police Cmdr. Jim Hardina said officers determined there was not sufficient evidence to continue a criminal investigation into the alleged Feb. 1 or Feb. 2, 2008 incident, which was reported to police on the afternoon of Feb. 2.
“This does not mean that something may not have happen[ed], but the elements of a sexual assault were not met,” Hardina said in an e-mail Sunday. “Without new information coming forward, the case is currently not active.”
The former ASU student is currently pursuing a civil lawsuit against the fraternity and its national chapter, as well as two men, David Gallagher and Matt Potter, who are named as assailants.
The woman, who was 19 at the time, alleges that she was drugged during a party hosted at the Sigma Chi fraternity house, waking up the next morning in the house around 9 a.m. in “immense” pain, according to the lawsuit.
Police reports indicate the woman’s blood alcohol level was .107 when officers interviewed her at 3 p.m. the afternoon after the alleged assault.
The woman underwent a sexual assault examination at Tempe St. Luke’s Hospital the morning after the incident, her attorney said, which confirmed what he claims was evidence of sexual assault.
Regardless of the result, examinations completed in hospitals not by the Forensic Nurse Examiner’s Office at the request of a police department cannot be used as evidence in criminal court, Hardina said.
Whether the victim asks for a sexual assault examination or not, ASU Police Department protocol at the time of the incident required an officer’s request to the Examiner’s Office in order for a rape kit to be performed on a victim. The policy has since changed, allowing a victim to request a rape kit without the request of an officer, Hardina said.
Any type of sexual assault examination would not necessarily provide sufficient evidence that assault occurred, he said.
“Most of the time, the forensic exam will just say penetration occurred,” Hardina said in an interview Friday. “Even if there is injury … that does not prove sexual assault occurred because that can still happen if it was consensual.”
Under Arizona law, sexual intercourse is considered “without consent” if the victim is under the influence of a mental disorder, a mental defect, drugs, alcohol, sleep deprivation or any other similar impairment of cognition, and the condition is known or should have reasonably been known to the defendant. This policy, however, is considered somewhat of a “gray area,” Hardina said.
“As far as alcohol goes, if their mental cognition is impaired to the point where they can’t give consent — that is subjective. Who knows?” he said.
After the woman filed the report, the department contacted the University’s judicial affairs office, the Office of Student Rights and Responsibilities, Hardina said.
The woman was interviewed and featured in a 2009 report by a nonprofit organization focusing on rape on college campuses. She told the report’s authors that she was contacted by members of the Office of Student Rights and Responsibilities, but decided not to speak up about the alleged incident because officials did not guarantee her anonymity.
The Office of Student Rights and Responsibilities declined to comment on the case, but University spokeswoman Sharon Keeler said standard practice is for the office to contact the accused parties in a sexual assault complaint to hear their account.
“All University officials treat these situations sensitively and gather as much information as possible to reach an end result that is fair and just for all involved,” Keeler said in an e-mail earlier this month.
Privacy laws prevent the office from releasing records related to specific cases, Keeler said.
According to the civil complaint, the fraternity had been placed on probation several times for various reasons between 2003 and 2008 and was on probation at the time of the incident in February 2008. Keeler confirmed that Sigma Chi was on probation at the time, but said the fraternity didn’t violate the probation by hosting the party where the incident allegedly occurred.
Records requests by The State Press for documents concerning complaints against Sigma Chi, violations by the fraternity and its probations since 2000 are pending.
Both defendants named in the suit were expelled from the fraternity, according to Nicholas Orman, a current Sigma Chi member. Fraternity officials couldn’t confirm that the men were removed from the chapter.
Gallagher still attends ASU but Potter does not, Keeler said.
The national chapter of Sigma Chi did not respond to repeated requests for comment and a representative of the University chapter said it is “remaining silent at this time.”
Reach the reporters at kpatton4@asu.edu and derek.quizon@asu.edu
