Missoula (15 page)

David Lisak argues that the police need to investigate rape suspects with the same diligence they use to investigate narcotics kingpins
and perpetrators of organized crime. “The focus of the investigation shouldn’t simply be this one, seemingly isolated rape,” he explained. “It should be ‘Who is this suspect? Who can tell us what he’s really like? Who are the other women he may have raped?’ Detectives need to subpoena e-mail accounts, look into the suspect’s Facebook friends. They need to really dig.”

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.

PART THREE

Unwanted Attention

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.

K
ATIE
J.M. B
AKER
“University of Montana Quarterback Charged with Rape”
Jezebel
, August 1, 2012

      W
hen Beau Donaldson was arrested, on January 6, 2012, for raping Allison Huguet, it was the lead story in the next day’s edition of the
Missoulian
. For the next six months, Donaldson’s crime and other sexual assaults by University of Montana students were an increasingly frequent subject covered by the Montana news media. On January 8, the paper ran a piece describing Kerry Barrett’s and Kaitlynn Kelly’s frustration over the refusal by the Missoula police and the county attorney’s office to file charges against their alleged assailants. On January 11, the
Missoulian
published a “guest column” by Mark Muir, the chief of police, defending his actions. “Rape cases,” he wrote, “are a significant challenge; proving the case beyond a reasonable doubt to a jury is even more difficult.”

On January 15, 2012, an article by
Missoulian
reporter Michael Moore revealed that a UM student had belatedly come forward to report being sexually assaulted in February 2011, when she was a freshman. She had been discovered unconscious in the snow outside her dormitory in the middle of the night, with her pants and underwear pulled down to her ankles. Bruises covered much of her body. “A hand had pressed down so hard on her mouth and face that an imprint was still visible,” Moore reported. Rug burns bloodied her knees.

The previous evening, she’d had too much to drink and, while walking home with a friend, stopped at a coffee shop. Someone bought her a cup of coffee, and after she drank it, she saw a group of young men pointing at her and laughing. “One of them mouthed the
word ‘roofies’ at me,” she told Moore. Frightened, she ran out of the café, after which she remembered little until she was found sprawled on the frozen ground of the UM campus outside Jesse Hall and was taken to her room. The next morning, when she went to the university health center, she said, “[T] hey treated me like I was just some drunk girl. All the questions were like, ‘Well, are you sure you just didn’t fall down?’ ”

A subsequent forensic exam at the First Step sexual-assault clinic revealed that she had been raped. “I know my case probably won’t be solved,” the victim said. “But I want people to know what happened.” She decided to tell her story to the newspaper in the hope that it would motivate the university and city officials to start taking Missoula’s rape problem seriously. “[T]his is a bad thing that’s going on,” she told Moore, “and we all need to do something to try to fix it.”

On January 17, 2012, two days after Michael Moore’s article was published, UM president Royce Engstrom addressed the rash of sexual assaults at a public forum attended by 125 Missoulians, including Chief Muir, Mayor John Engen, and state legislators. “I want you to know that we take this very seriously,” Engstrom assured the audience. During a question-and-answer session following his remarks, a local social worker named Ian White told Engstrom that he believed the main cause of the problem was the Griz football team. “I respectfully disagree,” Engstrom countered, although earlier in the evening he’d acknowledged that “a small number” of university athletes were responsible for part of the problem. In a confidential memo sent to UM staff, however, Engstrom had essentially agreed with White by writing that university investigations “indicated a disproportionate association” between the sexual-assault crisis and “patterns of behavior of a number of student athletes.”

Four weeks previously, Engstrom had assigned former Montana Supreme Court justice Diane Barz to conduct an investigation into the university’s apparent outbreak of rapes. On January 31, 2012, she submitted what came to be known as the Barz Report. “The reports of sexual assaults on the UM campus now require immediate action,” she wrote. “Due to the number of incidents added since December, the investigation needs to be ongoing.”

She was proved correct on February 17, when UM students
learned of two more sexual assaults in their midst, via an e-mail blast sent to the entire campus warning of a “Possible Threat to the Community.” Shortly after 2:00 a.m. on February 10, a male student from Saudi Arabia had encountered a female student on the UM campus and offered to give her a ride to her residence hall. But instead of proceeding directly to her dormitory, he said that first he needed to pick up something from his room at International House, a university-owned residence hall for foreign students. When they arrived, the male student poured her a cocktail and urged her to drink it. Immediately she began to feel queasy and lose control of her body, at which point the man began kissing her against her will. The last thing she remembers is trying to escape through a window. Friends later found her unconscious and took her to her room.

Later that same night, approximately an hour after the aforementioned victim fled from the Saudi student’s room, he drove past a different female student as she was walking to her dormitory, steered his car to the curb, and offered to give her a ride. Because she knew him, she accepted. After she got in the vehicle, the Saudi student told her the same thing he’d said to his earlier victim: He needed to stop by International House on the way to her dorm in order to pick something up. As reported by Dillon Kato in the
Montana Kaimin
(an independent, student-run newspaper published by the university), when the two students got to International House, the man talked her into coming up to his room, then “poured each of them a drink.” The woman soon began to feel nauseated and vomited. Her next memory, she told Kato, was of the male student

lying on top of her, both of them naked….“His breath smelled terribly. I remember the weight of him on my chest.”…She said she was having trouble moving and still felt ill. She said the man then grabbed a condom and proceeded to rape her and she yelled at him to let her go.

Eventually the man fell asleep and the effects of her spiked cocktail dissipated, allowing the woman to flee and make it back to her residence hall.

Both assaults took place in the hours before dawn on Friday, February
10, 2012. That afternoon, the first victim, who wasn’t raped, reported her encounter with the foreign student to the UM Office of Public Safety, and the campus police notified Dean Charles Couture about it on February 14. Additionally, campus cops apparently brought the perpetrator in for questioning at some point and charged him with a misdemeanor for providing alcohol to the first victim.

The second victim, who was raped, didn’t initially report the incident to the university police or the Missoula police, so UM public safety officers didn’t know about the second, more serious assault when they first talked to the foreign student. Over the weekend, nevertheless, the first victim learned about the rape of the second victim through the campus grapevine.

On February 14, 2012, the first victim, who had been assaulted but not raped, received a phone call from Dean Couture to schedule an interview with her on February 17. When she showed up for the meeting, she surprised Couture by bringing along the second victim, who had been raped. Until that moment, Couture was unaware that there even was a second victim. According to Dillon Kato’s article, Couture assured both women that he would summon the student who’d allegedly assaulted them to his office to be interviewed and “would possibly take away his visa and expel him” from the university.

In response to the rape, as required by a 1990 federal law known as the Clery Act, at 4:51 p.m. on February 17, the university disseminated the mass e-mail warning of possible “dangerous conditions” on or near its campus. University policy obligated Dean Couture to notify the foreign student that he was being investigated for the alleged rape of the second victim, which Couture did that afternoon with a phone call.

Couture didn’t ask the student to surrender his passport, however, because he had no legal authority to do that. Nor did Couture call the Missoula police to let them know about the rape. Instead, the police and other city officials learned about the rape from the e-mail alert, which did not make them happy. Approximately ninety minutes after the e-mail blast went out, Mayor Engen sent an e-mail to President Engstrom and Jim Foley, UM vice president for external relations, in which Engen said,

[I]t appears that two alleged sexual assaults are linked to a single suspect whom the Office of Public Safety had in custody and cited on a misdemeanor minor-in-possession charge. Both of the assaults appear to have happened off campus and should have been immediately reported to the Missoula Police Department. I hope the Dean of Students feels some obligation to report the crimes to us so we may engage in an appropriate, professional criminal investigation. While we understand that there are implications for the suspect based on the student code of conduct, that investigation ought to take a backseat to a criminal investigation of an alleged sexual assault.

Engen was wrong about where the assaults occurred; they actually took place on university property. But that was immaterial. Just three months earlier, the university had signed a memorandum of understanding with the city granting the Missoula Police Department jurisdiction over all felony crimes committed on the UM campus. This agreement, however, did not trump the university’s purported obligation to respect the privacy rights of the victim, in the opinion of UM legal counsel David Aronofsky. “Frankly, if a victim says, ‘I don’t want this brought to the police,’ ” he told the
Missoulian
’s Gwen Florio, “we’re going to honor that.”

Aronofsky’s reluctance to involve the police may also have been related to the refusal of the Missoula County Attorney’s Office to file charges in the Kerry Barrett and Kaitlynn Kelly cases. During the University Court hearing for Kelly, Aronofsky became aware that both Barrett and Kelly believed that their treatment by the Missoula Police Department and prosecutor Kirsten Pabst had been demeaning and counterproductive. Both women said they would not recommend to other rape victims that they report their assaults to the Missoula cops.

President Engstrom agreed with counsel David Aronofsky that the university did the right thing by not reporting the February 10 rape to Missoula law enforcement officials. “[A]s is required by federal law,” he told Florio, “the university cannot and did not release the names of alleged victims or perpetrators to police.” The accuracy of
this statement, however, is questionable. Federal law, Montana law, and the university’s policy concerning sexual assault and the privacy of victims and perpetrators are confusing at best, and in some regards contradictory.

According to the 2011 Dear Colleague Letter issued by the U.S. Department of Education’s Office for Civil Rights, as soon as a school “has notice” of a sexual assault, “it should take immediate steps to investigate or otherwise determine what occurred, and take prompt and effective steps…to prevent its occurrence and, as appropriate, remedy its effects.” But as Diane Barz noted in her January 31 report to Engstrom, “This is the most difficult part for the UM and other universities because the guidelines are not clear on what constitutes ‘prompt and effective steps.’ ”

In any event, on Friday evening, February 17, 2012, the university provided the Missoula police with the name of the alleged rapist, and the cops immediately began looking for him, according to Assistant Chief of Police Mike Brady. On Tuesday, February 21, both victims went to the police department, gave statements to detectives, and confirmed their assailant’s identity from photographs. It was all for naught, unfortunately. Before the day was out, the police discovered that the perpetrator had fled Missoula on February 19 and had caught a flight to Saudi Arabia.

THE COLLECTIVE ANGER
in Missoula over the escape of the foreign rapist was searing. Less than a month after the Barz Report warned that sexual assaults on the UM campus required immediate action, the problem seemed only to be escalating. At a city council meeting on February 27, 2012, Councilman Dick Haines ripped university administrators for not doing more to prevent the Saudi perpetrator from fleeing the country. “They have to realize that person is a threat to more than just the campus,” Haines declared, adding that using federal regulations as an excuse for not immediately turning the case over to the city police was unacceptable.

“If in December you were showboating about how [preventing sexual assaults] was a top priority,” Tracy Cox, spokeswoman for the Pennsylvania-based National Sexual Violence Resource Center, told
Florio, “and just two months later, this is happening, it takes your credibility down several notches. And the person fleeing—that takes it to a whole new level.”

Then, when the crisis seemed like it couldn’t get any worse, it did. At 1:16 a.m. on March 19, 2012, Irina Cates—a reporter for the local television station KPAX—posted a story on the station’s website under the headline “Griz QB Served with Restraining Order After Alleged Sexual Assault.” Cates had discovered that a female UM student had petitioned the court for protection from Jordan Johnson, the star quarterback of the football team, alleging that Johnson raped her.

Three months earlier, Johnson—a nineteen-year-old sophomore from Eugene, Oregon—had led the Grizzlies to first place in the Big Sky Conference with a record of eleven wins and three losses for the 2011 season, which ended with an impressive run at the FCS national championship. The woman he allegedly raped, Cecilia Washburn,
*
was a twenty-year-old junior at the UM school of pharmacy. They’d been friends since 2010, had dated intermittently and engaged in a few make-out sessions, but things had never gone further than that, sexually. Mostly their relationship consisted of exchanging text messages. Then, in the spring of 2011, Cecilia Washburn started dating another man, Jordan Johnson became interested in another woman, and the nascent relationship between Washburn and Johnson “fizzled,” as Washburn put it.

In December 2011, however, after Washburn’s relationship with her boyfriend ended, Johnson and Washburn started texting each other again. A lot. According to Missoula police detective Connie Brueckner, from December 2011 through February 4, 2012, when the rape allegedly occurred, Johnson and Washburn exchanged “a few hundred texts.” Seventy-five percent of these exchanges were initiated by Johnson. Washburn characterized their texts as “friendly and flirty” during her sworn testimony.