A Missoula defense attorney says the comments she made about a 13-year-old sexual assault victim during a client's sentencing hearing last week came only after she felt the judge had “opened the door” to them.
Lisa Kauffman said a Missoulian story about the hearing painted her unfairly because it did not say that District Court Judge Robert “Dusty” Deschamps was the first person to use the word “temptress” in the courtroom — something she said led her to present additional information about the girl in hopes of securing a lesser punishment for her client.
On Monday, during sentencing for a man who pleaded guilty to sexually assaulting a 13-year-old patient at the teen addiction recovery center where he worked, Kauffman told the judge he should see pictures of the victim, and that she “looks and acts like she’s 18 years old. And I think that’s important.”
“I should bring a picture of her and makeup and her hair and her breasts,” Kauffman said, according to the official transcript from the hearing.
Kauffman said Thursday those statements came only after she felt Deschamps “opened the door” to including other evidence about the victim and implied it might sway him into a lighter sentence. She said the comments were her doing her job.
“I am comfortable saying things that are unpopular if it’s best for my client,” she said. “My point wasn’t to re-victimize her, my point was to get him a lesser sentence.”
Missoula attorney Peter Lacny, who heads the Montana Association of Criminal Defense Lawyers, said the duty for “zealous representation” of a client is something all criminal defense attorneys take seriously.
“If the mitigating factors are ones that could be calculated to change the judge’s mind you have to do it. You have a responsibility,” he said.
What Kauffman said she saw as the judge “opening the door” started with a statement by Deschamps — who said he thought that the defendant had done more than he'd admitted to. Kauffman responded “So what if he had sex with her?” saying that didn’t change whether the man could be eligible for a deferred sentence or treatment in the community instead of incarceration.
“I tell you what,'' Deschamps said, according to the official court transcript. "I tell you what would make the difference here, would be if she was some temptress that raped him and now he’s — he’s, you know —because he was a victim but the perpetrator happened to be underage, you know, that might make a difference.
"But short of that, I don’t know that anything would make a difference,” the judge said.
“If I even (alluded) to the possibility that a 13-year-old could somehow be a seductive temptress” Kauffman began to respond, before being cut off by the judge, who said, “I think it could happen.”
“Well, of course you and I both know that,” Kauffman replied. “But every women’s rights group in this country would be all over you and me. We’re not allowed to talk like that anymore.”
After an interjection by prosecutor Brian Lowney that he found the conversation between Kauffman and the judge offensive, Kauffman went on to make the remarks about the girl’s appearance, how old she acted, and that she told the defense team in an interview the encounter had been mutual.
Kauffman had argued earlier in the hearing that "I just think our attitude surrounding sex and sexuality often ends up with the guy going to prison when there’s a lot of other contributing factors.”
She also said the girls at the treatment center may have "acted out sexually" as a part of their trauma.
"And I'm not blaming the victim here. I'm just saying you have to put all that together in terms of the way they presented themselves," she said.
Deschamps said Friday that in rereading a copy of the court transcript, he can understand that Kauffman took his comment as an invitation to present information about the 13-year-old victim, but said that wasn’t what he meant.
“That wasn’t my intention. I thought I was just saying I could see a situation. The only way I could see giving a deferred or even a suspended sentence was if this guy was raped by an underage person, but I didn’t think that was the case here,” the judge said. “The Legislature wouldn’t have even allowed judges to give deferred sentences unless there was some sort of fact pattern.”
In sentencing hearings, attorneys present the aggravating or mitigating circumstances that can determine where in the range of available sentencing options a defendant will end up.
Kauffman said Thursday she was surprised when Deschamps used the term "temptress," but took the statement as him being willing to lean in her client’s favor if presented with more information about the girl. She said she had a professional obligation to try to capitalize on that opening for her client, but said there were still limits to what she felt was fair game.
“I had additional information that may have painted the 13-year-old in an unfavorable light and I deliberately did not out of respect for her healing,” Kauffman said.
She also referenced a state law that allows a legitimate defense in sex crimes involving underage victims if a defendant believed the victim was older than 16, the age of consent. While that law does not apply to cases where a victim is 13 years old or younger — as in Monday’s hearing — Kauffman said that doesn’t entirely preclude bringing that defense up as an argument. Her client told the person conducting his psychosexual evaluation he thought the girl had been at least 16 at the time.
Kauffman said another exchange during a brief court recess, where she told Lowney “How about victims as temptresses, what do you think about that?” was meant as her expressing surprise that the judge had used the term and was allowing such a discussion to take place.
The teenager’s mother, who was seated behind them, took umbrage with the comment, and Kauffman apologized to her, saying she was “just making a little slam.” Kauffman said she wasn’t able to finish, but would have done so by saying it was a little slam against Deschamps, not the prosecutor or the girl.
Peter Lacny, president of the Montana Association of Criminal Defense Lawyers, said sometimes that duty of loyalty to defend a client can lead to members of the public questioning things defense attorneys say or do.
But he said views often change if a person is being charged and prosecuted for alleged criminal conduct.
“We’re the only person generally standing with the client, with the prosecution and the police generally against them,” said Lacny, of the Missoula firm Datsopoulos, MacDonald and Lind. “Our job is to mitigate and defend them.”
Shantelle Gaynor, department manager for the Missoula City-County Relationship Violence Services, said comments like Kauffman’s about a victim’s actions, dress or appearance can have a chilling effect on victims' willingness to report sexual violence.
“The No. 1 factor in a victim’s recovery is if they were believed and how they were supported in the process,” she said. “By looking to the actions of the victim, you don’t create innocence for the perpetrator.”
To put it more plainly, she said, when a drunk driver hits another vehicle, we don’t ask why the victim bought a red car to begin with.
The potential for considering a victim’s behavior as part of reducing a perpetrator’s responsibility is a microcosm that pushes “against broader cultural questions,” about sex and rape, Gaynor said.
“As a society and a culture, when there is a rape, we would like the person to go to jail. When there is consensual sex, we want people to enjoy their experience. When we conflate sex and rape, we’re contributing to the gray area that lets perpetrators get away with what they do,” she said.
In the days since the initial news story came out, Kauffman said she has received threats, including death threats, from around the country, some of which she played for the Missoulian.
“You ought to be ashamed of yourself,” one voicemail said.
“I hope that you get what’s coming to you,” said another.
“You are a horrible human being … there’s a special place in hell for people like you,” went a third.
“That was my life yesterday and the day before,” Kauffman said Thursday, saying the backlash has made her afraid. “In 20 years (as a defense attorney) I’ve never dealt with this level of hostility and anger.”
Deschamps said the threats Kauffman has been receiving since the hearing were unacceptable.
“She’s doing her job. She doesn’t deserve this,” he said. “We should be able to, without fear of retribution, be able to have freewheeling discussion in sentencing hearings.”
Since seeing the initial story of Kauffman’s comments in court generate controversy, Deschamps said he reviewed a Montana Supreme Court decision in a case involving statements in a 2013 rape sentencing made by former District Court Judge G. Todd Baugh in Yellowstone County. The high court censured Baugh over the handling of the case and suspended him for a month.
The comments that landed Baugh in hot water were significantly different than Deschamps’ statements in Monday’s court hearing. In 2013, Baugh sentenced a teacher who was convicted of raping one of his students to a sentence that had all but a month suspended, saying as part of his rationale for the sentence that the 14-year-old girl in the case had been “older than her chronological age” and had likely been in “as much control of the situation as the defendant.”
Days later, Baugh apologized for the comments, saying they were “stupid and wrong.”