Missoula: Rape and the Justice System in a College Town

by Jon Krakauer

But the relevant law, Montana statute 45-5-501, doesn’t say a victim has to be “physically helpless” to be incapable of giving consent, as Muir incorrectly asserted. The law states that a victim is incapable of consent if he or she is “mentally defective or incapacitated”; “physically helpless”; or “overcome by deception, coercion, or surprise.” And with a blood alcohol content of .219 percent more than two hours after the alleged rapes began, it’s hard to imagine that Belnap wasn’t mentally incapacitated to a significant degree.

After a victim has reported a crime to the police, many people believe that the decision whether or not to charge the suspect with a crime, and then prosecute the suspect, is the prerogative of the victim. News media often contribute to this misconception in stories about rape victims by reporting that a victim “declined to press charges.” In fact, the criminal justice system gives victims no direct say in the matter. It’s the police, for the most part, who decide whether a suspect should be arrested, and prosecutors who ultimately determine whether a conviction should be pursued.

To make an arrest and prosecute an individual in criminal court, the police and the prosecutor must possess enough evidence to lead a reasonable person to believe that the charge is probably true. This fundamental legal standard is commonly referred to as “probable cause.” Brueckner’s announcement that Calvin Smith would not be prosecuted because of a lack of probable cause was, and remains, hard to fathom. It would have been a challenging case to present to a jury, and it might have ended with Smith being acquitted. But rapists have been charged, prosecuted, tried, and legitimately convicted with much less evidence than the Missoula Police Department and the Missoula County attorney had at their disposal for assembling a case against Smith.

Rape is the most underreported serious crime in the nation. Carefully conducted studies consistently indicate that at least 80 percent of rapes are never disclosed to law enforcement agencies.

When an individual is raped in this country, more than 90 percent of the time the rapist gets away with the crime.

We’re disinclined to believe that someone who’s an attentive student or a congenial athlete could also be a serial rapist. But Frank and his ilk are sexual predators who do incalculable harm to their victims, and it’s crucial for police officers, prosecutors, and campus administrators to regard them as such. The problem is, most officials who are responsible for holding rapists accountable don’t consider guys like Frank to be dangerous criminals. And even when they do, too many of them are reluctant to file charges and prosecute perpetrators of acquaintance rape, because they’re convinced that the odds of convicting acquaintance rapists are slim—too slim to justify the immense investment of time, money, and emotional capital required to mount a full-scale rape prosecution. Prosecutors justify this reluctance to prosecute by pointing out that their sworn duty is to act in the best interest of the state, not to serve as personal attorneys for victims of rape or any other crime. David Lisak considers this rationale both self-defeating and shortsighted. He argues that failing to aggressively prosecute rapists like Frank doesn’t merely harm the many victims of acquaintance rape; it also does tangible harm to the general public. When men like Frank repeatedly rape and get away with it, Lisak said, “their behavior becomes entrenched. It’s obsessive. And once this pattern is established, it tends not to be something that just stops. Sexual predators are constantly practicing, cons...

Police officers who approach rape cases in this way are likely to turn up other victims and other crimes. And when prosecutors have evidence of multiple victims, it becomes much harder for defense attorneys to attack any single victim’s credibility—the time-honored rape defense that so often results in acquittal.

During my trip to Missoula, I was shocked by how many UM students found it inconceivable that an illustrious football player—a quarterback, no less—would ever rape anyone. “Those guys can sleep with anyone they want,” people told me over and over again…. For example, everyone agrees that, in the words of a man I meet under the disconcertingly fluorescent lighting at a divey sports bar called Missoula Club, football players in particular “don’t need to rape to get fucked.” This is despite the fact that at least six of the school’s football players were involved in the cases currently being investigated by the federal probe. KATIE J.M. BAKER “University of Montana Quarterback Charged with Rape” Jezebel, August 1, 2012

He railed against “the heavy hand of the federal government,” adamantly denied that his office had done anything wrong, and refused to cooperate with the feds, claiming that the DOJ was overreaching its jurisdiction. Assistant Attorney General Thomas Perez wasn’t swayed by Fred Van Valkenburg’s outburst. “I don’t think protecting women from rape or sexual harassment,” he said, “is an overreach of federal government.”

The U.S. legal system is organized as an adversarial contest: in civil cases, between two citizens; in criminal cases, between a citizen and the state. Physical violence and intimidation are not allowed in court, whereas aggressive argument, selective presentation of the facts, and psychological attack are permitted, with the presumption that this ritualized, hostile encounter offers the best method of arriving at the truth.

JUDITH LEWIS HERMAN “The Mental Health of Crime Victims” Journal of Traumatic Stress, April 2003

Throughout the United States, decisions about whether or not to file charges in sexual-assault cases are generally left up to the discretion of prosecutors, who enjoy nearly complete immunity from both criminal and civil liability for their decisions—especially when they decline to prosecute. If a prosecutor doesn’t want to pursue a case, she can simply state that there is “insufficient probable cause,” and the case will not be prosecuted. Although this leaves victims with no recourse when their cases are disqualified, prosecutors will argue that such wide latitude is necessary to keep the wheels of the criminal justice system turning.

As defense counsel for Jordan Johnson, Kirsten Pabst and David Paoli had a professional responsibility to sow doubt about Cecilia Washburn’s credibility at every opportunity. Throughout the trial, to fulfill this duty, Pabst and Paoli made misleading statements about Washburn without compunction. Montana lawyers are required to adhere to the Montana Rules of Professional Conduct, which are based on the American Bar Association Model Rules of Professional Conduct. According to both the Montana Rules and the ABA Model Rules, “In the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” It’s nevertheless common for lawyers to deliberately make untrue statements in court, and they usually get away with it, especially defense counsel. “There’s a double standard,” Rebecca Roe told me. According to Roe, who supervised the sexual-assault unit in the King County Prosecuting Attorney’s Office for eleven years, “Judges tend to hold prosecutors to a higher level of truthfulness than defense counsel.” Furthermore, she said, “If prosecutors make statements in court that aren’t true, and the defendant is convicted, the defense can appeal and get the conviction overturned. But there is no corresponding deterrent when defense lawyers make untrue statements, because if a defendant is acquitted, the prosecution can’t appeal.” Seemingly by design, the American legal system encourages defense counsel to be as mendacious ...

The Court finds that the Missoula Police Department’s policy…is not in violation of the presumption of innocence. It is not improper for the police to have this policy because, as Dr. David Lisak noted in his expert witness disclosure, the percentage of false [rape] reports is very low. The purpose of an investigation is to look for evidence of a crime as well as evidence of innocence….[I]t is not until the time of trial that the defendant is…entitled to the presumption of innocence…. IT IS HEREBY ORDERED that the Defendant’s Second Motion to Dismiss is DENIED.

Paoli’s knickers in such a twist

Asserting that an alleged rape victim was moaning seems to be an effective means of persuading police, prosecutors, judges, and/or jurors that the sex was consensual, rather than an act of rape, even though people moan in fear and pain, as well as pleasure. But the “moaning” defense worked for Jordan Johnson, it worked for the four Griz football players accused of raping Kelsey Belnap in 2010, and it worked for Jameis Winston, the Heisman Trophy–winning quarterback for Florida State University, when he was accused of raping a female student in December 2012. Two years later, when Winston was asked during a student conduct hearing “in what manner, verbally or physically,” the female gave consent, he claimed she provided consent by “moaning.” Winston was cleared of misconduct. The moaning defense isn’t always successful, however. When Kaitlynn Kelly accused UM student Calvin Smith of raping her in October 2011, Smith said part of the reason he believed Kelly consented to having sex was that “she was moaning,” but the University Court found him guilty of rape, regardless.

Continuing to insist that the DOJ had no jurisdiction over his office, Van Valkenburg groused that the unsparing report issued four months earlier by Acting Assistant U.S. Attorney General Jocelyn Samuels “was the single most unprofessional thing I have seen in my practice of law in 41 years. It hurts hugely to see my staff defamed….I can’t tell the number of sleepless nights I’ve had thinking about how this happened. Why did the United States Department of Justice do what they did here?” As Van Valkenburg uttered these words, Jocelyn Samuels was standing a few feet away. After he finished speaking, she made it clear that she disagreed with his assessment of the DOJ’s investigation. If the lawsuit hadn’t been dropped, and the DOJ had been forced to go to trial, Samuels stated, “I am confident we would have prevailed.* That said, today is a day for looking forward.”

Samuels is probably right. A tightly reasoned paper titled “Improving Prosecution of Sexual Assault Cases,” by Amy Knight Burns (published in the Stanford Law Review Online in July 2014), makes a powerful argument that the DOJ did in fact have legal authority to both investigate and sue the MCAO. While acknowledging that “prosecutors generally receive significant immunity for their choices and are subject to little supervision,” Burns states, “[t]he Missoula County Attorney…is an elected official. If he is not required to answer to any investigation concerning his failure to protect constitutional rights of a large group of constituents, a slim majority, or even a plurality, of voters could continue to support an unconstitutional regime that deprives a large number of citizens of rights to which they are entitled.”