Missoula: Rape and the Justice System in a College Town (a.k.a. majoring in partying and football)

I’m a huge admirer of Jon Krakauer. After I posted skeptically about Greg Mortenson’s Three Cups of Tea, Krakauer dug into this “party with the Clintons” do-gooder and came up with the truly stunning Three Cups of Deceit: How Greg Mortenson, Humanitarian Hero, Lost His Way. So of course I had to check out Missoula: Rape and the Justice System in a College Town.

The book potentially sheds a lot of light on America’s stagnant economy. The college students Krakauer follows major in psychology and then spend all of their time either watching sports, playing sports, drinking heavily, or having sex. Nobody is raped in the physics lab in Missoula if for no other reason than nobody Krakauer followed took a physics course to begin with. (See the Wall Street Journal for how income varies by major.)

The incidents chronicled by Krakauer fall into three categories:

• man+woman each had more than 10 drinks, were consensually together in a private space such as a bedroom, and then some sort of sexual contact transpired (nearly all)
• woman voluntarily accepted a drink from a man in his dorm room and the drink was spiked with a drug, and then some sort of sexual contact ensued (two incidents; same man, a student from Saudi Arabia who returned home before the victims went to the police)
• woman invited man to lie on her bed in a tiny bedroom, took off some of her clothes voluntarily; dispute regarding whether or not she consented to the rest of the interaction (one incident)

Why is there rape in the first place? Krakauer attributes the phenomenon to “male entitlement” and uses or quotes the word “entitled” in this context about five times. Another thing that leads to rape is “male privilege.” Krakauer never expresses any doubt as to what happens in these private bedrooms, even when the women concerned express their own doubts (typically due to intoxication). For example, a freshman expelled from the school by a Title IX “preponderance of evidence” (51 percent proof) court is referred to in the Dramatis Personae as “University of Montana student who raped Kaitlynn Kelly in October 2011.” (Both were more or less blind drunk at the time, the raped woman’s roommate and a gentleman friend were asleep in the same room on an adjoining bed, and, without going into Krakauer-style gynecological detail, the only contact alleged was with the expelled freshman’s fingers.)

Why is there more rape in Missoula than anywhere else? Statistically, there isn’t, says Krakauer. The incidence of rape in Missoula is lower than the national average of 0.27 percent of women (Krakauer cites only cases and statistics of men raping women). What’s remarkable about Missoula, Montana is that a journalist prior to Krakauer wrote about how the police and prosecutors in Missoula were ineffective at arresting and imprisoning rapists and were especially inclined to be lenient with male students at the University of Montana, football players in particular. This led to a U.S. Department of Justice investigation of the local law enforcement apparatus, a bunch of new bureaucrats being hired, and the state going after defendants against whom the evidence wasn’t very strong (see below). (Note that the federal officials time their visits to coincide with beautiful spring and summer hiking weather in Missoula.)

Here’s how the first rape story unfolded…

Beau Donaldson, a junior at the University of Montana at the time of the assault, was on the school’s football team. Allison Huguet was attending Eastern Oregon University on a track scholarship. People played beer pong in the basement and held “tea races” to determine who could chug bottles of Twisted Tea (a brand of syrupy malt liquor favored by UM students) the fastest. … By 1:30 in the morning, the party was running out of steam, and the handful of people still there moved upstairs to the living room. Donaldson and Huguet sat down together on a couch. Huguet, growing sleepy, lay across the couch, put a pillow on Donaldson’s thigh, and placed her head on the pillow. But there was nothing remotely sexual about it, said Huguet and Williams. “Allison never had any interest in that type of relationship with Beau,” Williams insisted. “Absolutely none.”

Krakauer expresses shock that, as it happens, this is not the prelude to a G-rated Disney movie. Donaldson ultimately admitted, on a surreptitiously recorded phone call, that the sleepy encounter in this house full of drunken students was “taking advantage” of the drunk/half-asleep Huguet. He was pursued by the authorities and, facing up to 100 years in prison, accepted a plea deal of 10 years in prison (see “Torture and Plea Bargaining” for why we have this system).

The next story in the book should also give some cheer to tuition-paying parents:

When Fairmont and Belnap arrived at his apartment, at 5:45 p.m., Styron and his roommate, a Griz player who weighed almost as much as Styron, were smoking weed outside. The four students went indoors, poured themselves shots of 99-proof schnapps, and were soon joined by three other members of the UM football team. Belnap didn’t know any of the men except Styron and his roommate. The five Griz players began competing to drink the most, and they encouraged the two women to join them. “Every couple of minutes we would all take another shot,” Belnap told me. “It was a ‘Let’s see if you can keep up’ kind of thing. I was like, ‘Uh, okay.’ ”

By then Kelsey Belnap had consumed between eight and eleven shots in approximately forty-five minutes. She can recall very little about what happened thereafter.

“I remember my belt buckle being played with, and then somehow I was bent over the bed.” For the next two hours she drifted “in and out of awareness” as different men entered the room, had sex with her, and left.

When Belnap eventually regained control of her faculties, she burst into tears. Betsy Fairmont called a friend, who took Fairmont and Belnap to the Community Medical Center emergency room, where Belnap was admitted at 9:00 p.m. According to the nurses’ notes, she was “obviously intoxicated” and had slurred speech. Two and a half hours after she’d stopped drinking, her blood alcohol concentration was measured to be 0.219 percent, nearly three times the legal limit for driving. When asked if she was experiencing any pain, Belnap replied that her vagina hurt. When asked to elucidate further, she stated that she thought she “may have been raped.”

[Krakauer includes the word “vagina” 45 times in the book, though the relevance of the sexual specifics (which he provides in great detail) is unclear. Generally the men admit having had sex and the medical professionals who come into court and testify admit that whatever they saw when examining the victim could just as easily have been caused by consensual activity.]

The authorities are never able to do much with Belnap’s case because her friend who was present (albeit also drunk) in the same room told the police that “Belnap had willingly had sex with all four of Benjamin Styron’s teammates.”

The book is strong on describing the procedures at the “University Court”:

The seven individuals on the University Court are appointed by the president of the University of Montana. The court is composed of three undergraduate students, one graduate student, two faculty members, and one staff member. At Calvin Smith’s hearing on November 18, 2011, held in the basement of Main Hall, the chair of the court was a distinguished professor from the university’s School of Business Administration; she served as the academic equivalent of a judge and ran the proceeding.

A dean serves as prosecutor and all of the students Krakauer describes going in front of the court are expelled within a couple of months from the original complaint. (Krakauer praises this process and criticizes people who try to assist the accused in presenting a defense.)

The two not-very-drunk students alone in the bedroom story is the longest because the case against Jordan Johnson went to a three-week trial when Johnson refused to plea out. Johnson and “Cecilia Washburn” (Krakauer’s pseudonym) had been plastered the night before:

It was Friday night, February 3, 2012, the first night of the ball. Approximately fifteen hundred young men and women were in attendance. Although no alcohol was served at the event, most of the students had gotten sozzled before they arrived, including both Washburn and Johnson. Washburn slid her hand along the small of Johnson’s back, leaned into him, and drunkenly declared (according to Johnson and Bienemann), “Jordy, I would do you anytime.”

Well… the next night they’re alone together in her bedroom, the male roommate just outside the door in the living room, and something happens in the bedroom that (a) leads to a criminal complaint, and (b) is not loud enough to get the attention of the roommate.

The victim is the first witness:

“Maybe it was the clothes I was wearing, us making out, or me taking off my shirt that made Jordan think I wanted to have sex,” Washburn answered. … “I should have screamed out to my roommate in the living room,” she answered, “or used more force to resist him, yes.”

The state of Montana hires David Lisak, a psychologist who had previously been a professor at University of Massachusetts, Boston, but is now a full-time expert witness (his web site lists his first job as “forensic consultant”). They pay him $325/hour to fly out from Boston to talk to the jury about rape in general (he wasn’t asked to study any of the facts of the actual case):

He was asked to provide “educational testimony”: information about what the best research reveals about rapists and their victims. … Prosecutor Joel Thompson began by asking Dr. Lisak about “misconceptions about rape”—rape myths. When people hear the term “rapist,” Lisak said, many of them “think of a guy in a ski mask, wielding a knife, hiding in the bushes, breaking into a home. And it’s a scary image, and it does happen, but…the vast majority of rapes, well over eighty percent, are actually non-stranger rapes.” … “There’s no profile of a rapist that you can use to say either somebody is or that somebody isn’t,” Lisak said. “But surely rapists are creepier than the average population?” Thompson asked. “Actually, no,” Lisak answered. We all like to think that we would be able to recognize the sort of person who might be a rapist, he said, “but the truth is, we can’t.” “So rapists can be likable?” Thompson asked. “Absolutely,” Lisak answered. “Sociable?” “Absolutely.”… “Can they be thought of outwardly as kind?” Thompson inquired. “Yes,” Lisak answered. “Gentle?” “Yes.” “Even timid?” “Yes, even timid, some of them,” Lisak said.

Then the trial gets back to comfortable territory for Krakauer:

CLAIRE FRANCOEUR, the nurse-practitioner and forensic medical examiner at the First Step sexual-assault resource center who’d examined Allison Huguet and Kelsey Belnap, was called as a witness by the prosecution at the end of the trial’s first week. She showed the jury photographs and a video of Cecilia Washburn’s genitals while describing the forensic exam she performed the day after Washburn was allegedly raped. Prompted by questions from prosecutor Adam Duerk, Francoeur pointed out abrasions and a small laceration inside Washburn’s vagina, as well as minor bruises on her collarbone. She also testified that she found tenderness throughout the vaginal wall and tenderness on the side of Washburn’s head. All of which, she said, were “consistent with sexual trauma, though nonspecific.” After the video of Washburn’s genitals finished playing and the public was readmitted to the courtroom, defense counsel David Paoli, bent on impugning Francoeur’s credibility, began an especially contentious cross-examination. “Nurse Francoeur…,” he began, “your job is not to determine, and you can’t determine, nonconsensual versus consensual [sex]; isn’t that right?” “Correct,” she answered.

Paoli brought up the laceration inside Washburn’s vagina that Francoeur had identified in the video. “This small laceration, it’s approximately a millimeter, isn’t it?” he asked. “I’d have to look at the tape again,” she answered, “but that sounds about right: one to two millimeters.”…

“You said that part of your responsibilities as a medical professional was to refer her to a lawyer?…You referred her to an Atlanta law firm, did you not?” “I gave her a name,” Francoeur explained. “And you made contact with that law firm on her behalf, didn’t you?” “I did not.” “You had made contact with that law firm to tell them that Ms. Washburn was going to be calling them?” “It was not me who made that contact. … Paoli professed that he was shocked that Francoeur, a nurse, would accompany a patient to the police station or refer a patient to a lawyer. In a voice edged with scorn, he inquired, “That’s part of your medical professionalism?” Francoeur replied that such consultation was part of providing “patient-centered” care, in accordance with the standard protocols of her profession. “Patient-centered and litigation-fueled? Is that part of what it is?” … “Do these guidelines, the 2004 national protocols, talk about your duty to provide information about civil attorneys to a victim?” “They do.”

Note that Krakauer refers to the defense lawyer as “bent on impugning” and “hectoring” but he does not refer to the prosecutors as trying to convict the defendant. Krakauer generally portrays criminal defense work, at least for rape cases, as unethical.

The jury then hears from psychiatrists who are paid by the opposing sides and turn out to have opposing opinions:

The final two witnesses—one called by the defense, the other by the prosecution—testified on Thursday, February 28, 2013. The defense witness, a psychiatrist and neurologist named William Stratford, had never examined Cecilia Washburn, but he’d reviewed her counseling and medical records at the University of Montana’s Curry Health Center at the request of David Paoli and Kirsten Pabst. Stratford argued that although the records indicated that Washburn suffered from anxiety and depression in the aftermath of her sexual encounter with Jordan Johnson, the symptoms she exhibited did not rise to the level of post-traumatic stress disorder. The prosecution witness, David Bell, was a physician at the Curry Health Center who treated Washburn after she was allegedly raped. He testified that the symptoms she displayed matched all the criteria for PTSD.

What happens after about $2 million has been spent on attorneys and experts?

Prosecutor Joel Thompson finished his rebuttal at 1:08 p.m. Friday afternoon, prompting Judge Karen Townsend to tell the twelve jurors to gather up their notebooks, head for the jury room, and start deliberating. As the courtroom emptied, Jordan Johnson’s father leaned over the gallery railing and embraced his son. Just after 3:30, an announcement was made that a verdict had been reached, and the people milling around the courthouse hurried back to the courtroom. For a jury to arrive at a verdict in less than two and a half hours after such a long, complex trial was highly unusual, and it took almost everyone by surprise. “To the charge of sexual intercourse without consent: We the jury, all of our number, find the defendant, Jordan Todd Johnson, not guilty.”

Krakauer essentially advocates for the elimination of the presumption of innocence for criminal defendants in rape cases. Because he doesn’t reference the classic “Torture and Plea Bargaining” the reader is left with the impression that criminals have an insurmountable advantage over prosecutors. Krakauer’s argument for making it easier to imprison accused rapists is essentially the following:

It’s easy to forget that the harm done to a rape victim who is disbelieved can be at least as devastating as the harm done to an innocent man who is unjustly accused of rape …

There is no “cure” for PTSD. The repercussions of severe emotional trauma, whether from war or rape, are typically felt for decades.

[My personal take-away from the trial narrative: The trial occupied 2-3X as many days as a patent infringement lawsuit in which a lay jury needs to come up to speed on potentially very sophisticated and specialized technology. The “what happened in that room” trial could have been cut down to about one third of its length if the judge had simply excluded testimony from people who hadn’t been in the room or nearby. How is it possibly relevant what a paid-to-show-up psychologist from Boston says about rapists in general? What if the psychologist had said “In my experience they tend to be almost exactly the same height, weight, and age as the defendant.”? The medical exam should also have been excluded because the nurse couldn’t say more than “they had sex,” a fact that the defendant had admitted. The character witnesses should have been excluded because, especially if we are to believe David Lisak, PhD, a person with a good character is just as likely to be a rapist as a person with a bad character.

Krakauer describes how profitable it can be to drop a dime on a rapist, even if the victim does not take the nurse’s suggestion to contact the plaintiffs’ firm in Atlanta and sue the rapist himself:

In 2002, [Brian] Banks was a junior at Polytechnic High School in Long Beach, California, a six-foot-four, 225-pound linebacker on an extraordinary football team. … Banks was aggressively recruited by some of the nation’s top college football programs and accepted a scholarship offer from the University of Southern California. … While attending summer classes before his senior year at Long Beach Poly, Banks had a chance encounter with a sophomore named Wanetta Gibson that, according to Banks, culminated in consensual sex. According to Gibson, Banks raped her. In a note Gibson wrote to a friend, which became a crucial piece of evidence, she said Banks “picked me up and put me in the elevator and he took me down stairs and he pulled my pants down and he rapped [sic] me and he didn’t have a condom on and I was a virgin and now Im [sic] not.” When interviewed by the police, Wanetta Gibson told a more detailed version of the same story, and Brian Banks, who was seventeen years old, was charged with forcible rape. Were he convicted, he could be sentenced to life in prison. Like thousands of other defendants ensnared in the criminal justice system, … Banks agreed to plead no contest to the rape charge, spend at least five years in prison, remain on probation for an additional five years, and register as a sex offender. While Brian Banks was serving his time, Wanetta Gibson and her mother filed a lawsuit against the Long Beach Unified School District, claiming that lax security at Poly High School created an unsafe environment that led to her being raped. The suit was settled out of court, with the school district agreeing to pay Gibson $1.5 million.

… her conscience began to bother her. In March 2011, a few years after Brian Banks was released from prison, he logged onto Facebook and saw he’d received a friend request from Wanetta Gibson, his accuser. … Banks asked if she would meet with him in the presence of a private investigator, Freddie Parish, whose son had been a teammate of his at Poly. Gibson agreed, and during their meeting she admitted what Banks knew to be the truth all along: He had not raped her. Unbeknownst to Wanetta Gibson, Parish was secretly recording the conversation. … Brian Banks’s conviction was reversed in May 2012. Thirteen months later, the Long Beach Unified School District won a $2.6 million default judgment against Wanetta Gibson to recoup the settlement she had received, plus interest and damages.

Let’s not hold our breath waiting for that $2.6 million to be returned to the California taxpayers…

Conclusion: The book is a detailed look at a handful of cases and therefore shouldn’t be used as a policy argument one way or another. Krakauer’s point of view is not neutral (no Wikipedia authoring for him!) but that doesn’t affect the book’s value for understanding (1) behavioral norms among humanities and social science majors at residential colleges, (2) the functioning of a Title IX on-campus sexual abuse court, (3) the challenges faced by police and prosecutors in obtaining convictions in non-stranger rape cases, and (4) the challenges faced by defendants accused of rape either by a campus court or the real police/prosecutors. Young people heading off to a residential college would do well to read this book.

Related:

• “Domestic Violence” chapter of Real World Divorce (using marital rape allegations to get more cash in a divorce lawsuit and/or get custody of children and the child support cash that comes with them)
• “Montana” chapter of Real World Divorce
• posting about Aaron Swartz where I learned that a successful defense to a criminal prosecution costs about $1.5 million (and a follow-up)
• Plea Bargaining and Torture (with link to Cato Institute paper on the subject)
• “Woman in De Anza gang-rape suit seeks $7.5 million in damages” (regarding the potential for a successful civil lawsuit when criminal prosecution is impractical)
• “Prominent Oregon tech investor faces rape allegation in civil suit” ($2.5 million lawsuit following no criminal prosecution)
• $10 million civil lawsuit against a soccer player regarding events that occurred two years previously
• LA Times story on how long it takes to untangle a false rape story