No charges were filed in two recent alleged sexual assault cases involving University of Montana students, even though both victims wanted to press charges and the alleged assailant in one of the cases was expelled from school as a result of his actions.
The incidents took place this fall, before the University of Montana announced a high-profile investigation into alleged gang rapes of female students who reportedly were drugged.
The two earlier complaints are not part of the UM investigation. But those cases, along with the UM probe, shed light on the extraordinary legal, law enforcement and emotional challenges surrounding rape cases - something addressed Friday by the Obama administration when it changed the 80-year-old legal definition of rape (see related story).
In the earlier cases, the two female students complained to Missoula Police Chief Mark Muir about how their cases were handled, as did the father of one of the women. (The Missoulian does not identify victims of alleged sexual assaults, or give details - such as relatives' names - that could identify them.)
Police and prosecutors told the women that the evidence in their cases was insufficient to warrant filing charges. That contrasts to Friday's arrest of UM running back Beau Donaldson on a charge of sexual intercourse without consent - again, in a different case. The details of the allegations against Donaldson will be released Monday when an affidavit of probable cause is filed.
Muir said he agrees with research that shows rape is an underreported crime. But in his meeting with the women, he spoke of the challenges of prosecuting such cases, citing research that showed false reporting in rape cases sometimes nears 50 percent. He followed up his discussion with the women by sending one of them a copy of an article from The Forensic Examiner journal titled "False Rape Allegations: An Assault on Justice."
As a result, the woman wrote in an email, "I'm so disenchanted with the MPD (Missoula Police Department) and feel very distrustful of them."
The other woman said she thought the university "did an excellent job" in handling her case. "But I would tell anyone else ever put in my situation not to waste time going to the police."
The alleged victims in the cases now under investigation at the University of Montana did not file police reports.
But the women who said they were assaulted this past fall - one of them off-campus and one in her dorm room - both filed reports. The woman in the latter case also filed a report with the UM Office of Public Safety. A hearing in that case was held under the procedures outlined in the Student Conduct Code, and the alleged assailant was expelled.
Although Dean of Students Charles Couture said he couldn't discuss the reasons for specific penalties in individual cases, he said that in general, "if in fact a student was found in violation of raping an individual, certainly that student is expelled."
Likewise, Missoula Police Detective Sgt. Travis Welsh said he couldn't divulge details about cases that didn't result in charges. As a rule, he said, suspects aren't charged "if we can't produce probable cause to the point where the prosecutor won't charge a crime."
Deputy Missoula County Attorney Kirsten Pabst LaCroix pointed out that significant proof - above the standard required by the Title IX federal regulations that apply to universities - is required for filing charges in sex crimes.
"We have so much reverence for the fact that when we file sex charges against someone, it's going to ruin their life," she said. "Filing charges rings a bell that cannot be unrung."
The father of the student who said she was assaulted off-campus said his conversation with Muir left him frustrated and angry - and fearful for other women.
Police and prosecutors, he said, seem willing to go forward only in "slam-dunk cases" such as that of Joshua Peltier, convicted last week of raping one woman and sexually assaulting another in 2010. Peltier's case involved the statistically rare instance of a stranger violently assaulting a woman. There also was a DNA match in the case.
"But before there was DNA, all rape cases were ‘he said/she said,' " said the father, a former police officer and now a professor of criminal justice. "We still prosecuted."
In less clear-cut cases, he said, "is the guy just supposed to get away with it?
"What message does that send to female students? You're fair game?"
A little over a year ago, another female student reported an off-campus gang rape - possibly while she was drugged - by four men, at least three of them University of Montana football players, to police. (That woman said last week that no one from the university has interviewed her about that assault as part of the ongoing investigation.)
Police later informed football coach Robin Pflugrad that no charges would be filed in connection with that incident, said Missoula Police Detective Sgt. Bob Bouchee.
When the woman in one of the recent cases read about the December 2010 incident in the Missoulian, she said that "I felt like I was reading about myself."
That's because a detective told her that her assailant seemed remorseful. The woman in the December 2010 case described a similar report from detectives about her alleged assailants.
The woman who said she was assaulted this fall went directly to Missoula police after a male student she met at Sean Kelly's offered to let her sleep on his sofa so she wouldn't have to walk home late at night. Although he assured her he wouldn't bother her, he tried to rape her after she fell asleep, she told police.
The summary in the police report says only that the man tried to pull the woman's pants down. It was worse than that, the woman said. "He tried to penetrate me."
She fled the house. "I went down to the police station hysterical," she said. Later, she said, a female detective told her she'd interviewed the man and that he'd cried and said he was sorry.
The woman's father sputtered in outrage about that remark. "It appears that in Montana as soon as a criminal says, ‘I'm sorry' the case is dismissed. He cried. Oh, poor guy."
Later in the semester, another female student said a male student she met after a party assaulted her in her dorm room. The woman was clear that before the pair went to her room, she'd agreed to have sex with him - but that she changed her mind as soon as she opened the door and saw her roommate and her roommate's boyfriend there. Educational material provided to students on rape and sexual assault by UM's Curry Health Center manual specifies that consent "can be modified or withdrawn at any time."
The woman said she was "absolutely" adamant in her refusal. But she said she fell asleep and awoke to him assaulting her. "I kept ripping his hand away" but he persisted, she said. "He outweighs me significantly."
She bled afterward and a physical examination showed injuries to her genitals, she said.
That man - the one who was expelled from school - now faces a misdemeanor theft charge, for allegedly taking the woman's jeans and wallet. He pleaded not guilty in Missoula Municipal Court. The woman has since dropped out of school.
LaCroix testified on the male student's behalf at the university hearing on the case, the woman said. "She said she denied it (filing charges in the case) because it was his word against mine and because alcohol was involved," the woman said. LaCroix's statement during the hearing was the first time the woman realized no sexual assault charges would be filed, she said.
LaCroix would not discuss her participation in the UM hearing. But she spoke at length about the difficulty of prosecuting sexual assault cases in District Court.
Not only must a prosecutor prove that a victim did not consent, but that her alleged assailant knew the sex wasn't consensual, she said.
The expanded definition of rape announced Friday by the Obama administration includes cases where victims can't give consent because of the influence of alcohol or drugs.
LaCroix said that incapacitation goes beyond drunkenness.
"If she's passed out, there's no question," LaCroix said. But if a woman remains conscious, it's difficult to prove she was legally too drunk to consent, she said.
"If a victim agrees to have sex with someone, even if the experience was not as expected, it is probably not a crime," she said. "Consent is measured at the time, not in the morning. Feelings may change but facts don't change in the sunlight."