Commentary

Landmark settlement in ASU rape case

Originally Published: January 30, 2009
By Lester Munson | ESPN.com

In an unprecedented legal settlement, a former Arizona State University student who was raped in her dorm room in 2004 by one of the school's football players will collect $850,000, and the Arizona university system will establish a women's safety czar for all three major campuses -- ASU, the University of Arizona and Northern Arizona University.

The settlement ends a civil lawsuit filed in 2006 by the former student, identified as "J.K." in court records, against Arizona State, the Arizona Board of Regents, then-head football coach Dirk Koetter and Darnel Henderson, the player who allegedly raped her. The suit claimed the university had placed her in a dangerous position, which led to the rape.

Although other rape victims have pursued lawsuits against universities and their athletes, the ASU settlement is unique in three ways: (1) the appointment of a highly placed safety officer who will review and reform policies for reporting and investigating incidents of sexual harassment and assault; (2) the extraordinarily high sum of university money paid to the victim; and (3) the public disclosure of the terms of the settlement.

"We would not have settled without the statewide women's safety officer," said Baine Kerr, the attorney for the victim and her family. "It was important to [the victim] that we establish something that will prevent this happening to other girls. It was an absolutely required condition of any settlement, and we are happy that the university agreed to it."

Universities typically demand confidentiality as part of any settlement, but the victim and the family insisted on public disclosure of the terms.

"This is a new day," said Joanne Belknap, a professor of sociology at the University of Colorado and an expert on women's violence issues. "Universities always protect the male athlete. It has happened forever. But this settlement will make things significantly better."

Another expert, Diane Rosenfeld, a lecturer at Harvard Law School, told ESPN.com, "This could be our turning point. Instead of privileging athletes, we will now approach the goal of a culture of sexual respect."

Both experts agreed that other schools will respond to the ASU outcome with increased concern for the safety of women on their campuses and, in the wake of the settlement, will make decisions to reduce the incidence of sexual violence and resulting liability payments.

The settlement comes after the victim and her attorneys completed an exhaustive investigation of ASU's actions before and after the rape, an investigation that her attorneys say revealed previous sexual misconduct by Henderson, deletions of important e-mails, destruction of critical documents and false testimony.

ASU officials in the football program, the athletic department and the president's office refused to comment beyond a written statement negotiated as part of the settlement that praises the victim for "making Arizona's campuses safer and reducing the risk of sexual harassment and assault for all students."

Nancy Tribbensee, the general counsel for the Arizona Board of Regents -- the governing body for the Arizona university system -- will become the Arizona "student safety coordinator" under the settlement. Tribbensee will appoint representatives with supporting staffs on each campus to hear and to respond to student reports of harassment and assault.

Tribbensee did not respond to e-mails and voice mails from ESPN.com.

According to documents filed in the civil lawsuit and an ASU police department investigation, Henderson was, as part of his football scholarship, assigned in 2003 to an ASU curriculum known as Summer Bridge, a four-week transition program designed to help incoming freshmen adjust to college life. Henderson, a defensive back, was in trouble within days, according to witnesses and documents discovered in the victim's pretrial investigation. He was accused of grabbing and touching women in the dorm, exposing himself to female staff members and threatening freshman women.

When confronted over his misconduct, Henderson told an ASU official that he wanted women to fear him and that it was important for him to "show them their place."

Steve Rippon, the ASU director of academic success, expelled Henderson from the transition program. But Koetter, the head football coach, persuaded school officials to allow Henderson to return to the campus under a zero tolerance policy.

Despite his previous difficulties, Henderson was permitted to live in a dorm when he came back. On March 11, 2004, according to police reports and lawsuit documents, he began openly stalking his victim, talking to her about the Kobe Bryant rape case and calling her repeatedly on her cell phone.

Early on the morning of March 12, Henderson entered the victim's dorm room through an unlocked door. The victim had been drinking and was asleep. As Henderson attacked her, police say, she awakened and recognized Henderson. Emergency room records show injuries that could not have occurred in consensual sex.

ASU police concluded that Henderson had committed assault, but no one interviewed him for three weeks. When Henderson did submit to an interview, he was accompanied by George Wynn, ASU's director of football operations.

In the interview, an ASU detective caught Henderson in a series of lies. Henderson claimed the victim had called him repeatedly in the hours before the rape, but his cell phone records showed that he had made all the calls.

The ASU police department submitted its investigation to the Maricopa County authorities, but they declined to prosecute. Both Rick Romley, the prosecuting attorney at the time, and Dante Alegre, the assistant prosecutor who studied the case, refused ESPN.com's requests for comment.

After Henderson was finally expelled from ASU, Koetter tried to help him obtain a scholarship at Arkansas-Pine Bluff and other programs, according to a later university investigation. When it became clear that Henderson, who never filed a response to the lawsuit, would be unable to pay any money damages, the victim and her family abandoned efforts to collect from him and focused their efforts on ASU.

Koetter was fired three years later. He was 40-33 in six seasons at Arizona State but won only two of 19 games against Top 25 teams. Now he is the offensive coordinator for the Jacksonville Jaguars.

According to the investigation by the victim's attorneys, ASU had destroyed records of Henderson's misconduct during the Summer Bridge program, and significant e-mails had been deleted even though ASU knew the victim was about to file suit. Kerr, the lead attorney for the victim, discovered some of the missing e-mails.

In one, Rippon, the school's director of academic success, wrote that the women who had complained about Henderson's behavior during the Summer Bridge program were "women I trust completely." But Rippon later testified under oath in a deposition that they were women with "attitude" who had "issues with all men."

Another e-mail, discovered just before the settlement was reached, was from one of the women who had complained about Henderson. It stated, "I don't want to get raped in college and that is what Darnel [Henderson] makes me feel like when he is around me."

The victim filed her lawsuit in March 2006 under the provisions of Title IX, the federal law that guarantees equal access to education to all students. The suit asserted that if the campus atmosphere is hostile to women or if women are afraid of harassment or assault, there can be no equal access. The use of Title IX in sexual assault litigation was pioneered by Kathy Redmond, who was raped twice by University of Nebraska lineman Christian Peter when both were students there in the early '90s.

Redmond, who established the National Coalition Against Violent Athletes and has helped rape victims throughout the U.S., hailed the settlement in the Arizona State case as a significant development in the protection of women on campuses across the country.

"This will level the playing field for women on campus," Redmond said. "The football coach will no longer be allowed to trump university policy. Arizona is establishing a fortress of prevention that will be a model for all colleges and universities."

Belknap, the Colorado professor, said, "Studies have shown that if women know there is a procedure for reporting that works and that protects the identity of the victim, then these incidents will be reported. Without the procedure and knowledge of the procedure, the rape culture will continue to exist."

Harvard's Rosenfeld agrees.

"With this system in Arizona, we will begin to see the end of a culture of male privilege, especially for athletes, and the beginning of a culture of sexual respect."

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.