Editor’s note: Criminal charges against Benjamin Massingille were dismissed on Dec. 22, 2022, and the civil case against Massingille and other defendants was dismissed on May 24, 2023. Massingille’s record was expunged by the courts on April 29, 2024.

Editor’s note: This story contains reference to sexual violence, which could be disturbing to readers. If you are a survivor of sexual violence, resources are available at the Counseling and Testing Center and the Title IX offices on campus and at Hope Harbor, a local sexual trauma recovery center.

Under Herald policy, due to the nature of this lawsuit, the names of students involved have been replaced by “plaintiff” and “defendant”.

A new lawsuit has been filed against eight defendants including WKU, President Timothy Caboni and Sigma Nu fraternity. The suit stems from an alleged sexual assault involving a former Sigma Nu member in 2021.

The lawsuit, filed Feb. 28, 2022, contains five counts, including negligence, both in hiring and infliction of emotional damage, premise liability, and battery and infliction of emotional distress. The lawsuit also includes compensatory and punitive damages. 

The lawsuit was filed by Thomas Law Office in Louisville. The office could not be reached for comment before publication.

The original incident, which occurred in February of 2021, is an alleged sexual assault by the defendant, who was 21 at the time. The alleged incident took place at a Sigma Nu house party.

In March 2021, the defendant was arrested by WKU police on charges of first-degree rape, sodomy and unlawful imprisonment. At the time of the arrest, Sigma Nu was placed on interim suspension by the university. According to the police report at that time, the defendant was suspended from the fraternity pending a police investigation. 

According to the Warren County Clerk’s Office, the defendant is still awaiting a grand jury hearing to determine if the case will be pursued. The defendant has not been convicted.

Christopher Brenton, director of communications for Sigma Nu, was called and asked for comment on the current lawsuit. Brenton responded in an email:

“Sigma Nu Fraternity is aware of a recent Kentucky legal filing related to a 2021 allegation of sexual assault at Western Kentucky University. The Fraternity has no further comment at this time due to the legal nature of this matter.”

Jakob Oechsli, president of the WKU Sigma Nu chapter, was called but declined the Herald’s request for comment. 

According to the lawsuit, the plaintiff, only referred to as K.P., was a student at WKU in 2021 but had to leave the university after the assault.

“Plaintiff continues to deal with the severe emotional distress and other injuries associated with the events,” the lawsuit states. “Plaintiff sought counseling and is continuing [to] seek treatment for emotional trauma resulting from the sexual assault she suffered as a student at WKU. Further, she has lost out on educational opportunities.”

The lawsuit mentions the Feb. 18 march on campus by students protesting sexual assault in greek life. According to the lawsuit, the plaintiff’s assault does not exist “in a vacuum” but has been a “prevalent issue.”

“WKU allowed an environment rife with sex discrimination and hostility to flourish in its greek life communities and failed to take reasonable actions to remedy it despite being on notice,” the lawsuit states.

When members of the Herald contacted Jace Lux, WKU’s director of media relations, via phone for comment on the lawsuit, Lux responded in an email:

“The university prioritizes the safety and well-being of the campus community above all else. WKU has fully cooperated with the criminal proceedings of this case throughout the last year, and will be responding to the allegations against the university via outside legal counsel in the coming days.”

On the count of “negligence and gross negligence”, the lawsuit states that the university and Sigma Nu “owed a duty” to warn and protect the plaintiff. The lawsuit alleges that the duty was not met. 

The lawsuit states that several members of the fraternity walked into the room during the assault and did not intervene. 

“Defendants had an obligation to report, stop and prevent the sexual assault and sexually hostile behavior directed against the plaintiff at the Feb. 27, 2021 party,” the lawsuit states. “Sigma Nu members walked into the room while the defendant was sexually assaulting Plaintiff and allowed it to continue.”

Along with the count of “negligent infliction of emotional damage” was a count of “negligent hiring, training, retention and supervision”. The lawsuit alleges that President Caboni hired individuals who did not have the “requisite credentials” to perform their respective jobs.

The lawsuit names Andrea Anderson, general counsel and interim Title IX coordinator, Charley Pride, director of student activities, and Andrew Rash, assistant director of greek life at WKU.

According to the lawsuit, the hiring of these individuals by Caboni “resulted in negligent hiring, training and retention.” 

“As [an] approximate result of said negligence, Plaintiff incurred the damages described herein,” the lawsuit states.

Lux was further contacted for comment regarding the lawsuit’s claims of negligence in staffing. Lux responded via email:

“The full response will be issued via the university’s outside legal counsel in the coming days. As is customary when the university is involved in active litigation, WKU isn’t providing further comment.”

The lawsuit also claims “premises liability”, arguing that since the Sigma Nu house, Eta Rho Home, was on university property, the university “has a duty to maintain the premises of its campus in a reasonably safe condition.” 

The lawsuit also contains compensatory and punitive damages for the emotional and physical damages the plaintiff suffered from the assault.

The last two pages of the lawsuit contains a “request for relief” for eight counts, including “past, present and future” emotional and medical distress and expenses as well as for her “pain and suffering.”

Investigative Reporter Michael Crimmins can be reached at [email protected]. Follow him on Twitter @michael_crimm.