The Missoula County Attorney’s Office prosecuted 14 of the 85 sexual assault cases referred to it by law enforcement from 2008 to 2012, according to the U.S. Department of Justice.
DOJ investigators believe those decisions against prosecution weren’t based on “inherent or insurmountable evidentiary hurdles,” but rather on gender bias in the office of Missoula County Attorney Fred Van Valkenburg.
That premise is fiercely denied by Van Valkenburg.
In a detailed, five-page statement released late Friday, Van Valkenburg fired back at the DOJ’s contention that sexual assault is given the lowest priority by his office. Instead, he pointed a finger at societal bias toward sexual assault that hinders prosecutors’ ability to elicit guilty verdicts from juries.
“Rather than blame prosecutors, we all need to accept responsibility for preventing crime and prosecutors need your help to fight bias where it hurts prosecutors and victims the most – in the jury box,” he said.
In his letter, he called the DOJ’s report “retaliatory” and a “politically calculated and irresponsible move.”
After repeatedly asking the DOJ to provide a basis for their investigation into his office, Van Valkenburg said it was with “frustration, disbelief and outrage” that he learned of the department’s release of its investigative findings – in a letter to the media at 4:45 p.m. on Friday, Feb. 14.
In its report, the DOJ stated the county attorney’s office declined to prosecute nearly every case of non-stranger sexual assault, especially in cases where there was a “heightened sense of vulnerability,” during the five years its investigators reviewed.
It also accused prosecutors of routinely dismissing cases in which the alleged victims had a mental or physical disability or in which drugs and alcohol played a factor.
Additionally, victims’ experiences with the county attorney’s office often left them feeling “offended, disregarded and disbelieved by prosecutors,” the DOJ said. “For victims of sexual assault, MCAO’s response indicates that a decision to report and participate in an assault investigation will be, at best, a waste of time or at worst a re-victimization.”
Because Van Valkenburg refused investigators access to his office, the DOJ’s team tried to confirm victims’ testimony with evidence like police reports, transcripts and video recordings, “giving weight only to those statements that we could corroborate.”
They also interviewed a former sex crime prosecutor, detectives and crime victim advocates, none of whom the agency will identify by name.
Among the 71 cases that prosecutors refused to prosecute, the DOJ listed multiple examples of alleged mishandling by deputy county attorneys, including:
• One woman reported that a detective told her that because “no one had a limb cut off and there was no video of the incident,” prosecutors wouldn’t pursue the case. In fact, deputy county attorneys “wouldn’t see this (the rape) as anything more than a girl getting drunk at a party.”
This prevailing attitude, the DOJ said, left detectives with the impression that non-stranger sexual assault must involve “physical force or overwhelming and irrefutable evidence to be considered a crime worthy of prosecution.”
• In a different case, a detective told the alleged victim and offender that his role was limited to collecting physical evidence of the assault and prosecutors would never file charges in the case – despite the fact the detective believed the woman had been raped by her alleged offender.
• A woman whose 5-year-old daughter was sexually assaulted by an adolescent boy, who was sentenced to only two years of community service, was allegedly told by a prosecutor that “boys will be boys.”
• Another deputy county attorney recited a religious passage to one woman, which made her feel like she was being judged for making the report.
• After deciding not to pursue one woman’s case, the alleged victim was told by prosecutors that “all you want is revenge,” the report said.
• Another woman described her interaction with the deputy county attorney as “traumatic.”
• Several women stated they would never suggest to another woman to pursue a sexual assault prosecution in Missoula.
• Other women reported feeling judged for the sexual history and said prosecutors who met with them treated them with “no compassion.” Some said they felt that prosecutors were “forced to speak with them.”
• A woman who said she had suffered a gang rape at the University of Montana said she felt re-traumatized by the experience of attempting to have the attack prosecuted by the county attorney’s office. No charges were filed.
• In one particularly disturbing account, a perpetrator was caught on a surveillance camera slipping something into a woman’s drink. The police obtained admissions by the assailant stating that he didn’t remember drugging the woman, but “if I were trying to make her relax, it would be Xanax.”
Both Xanax and another drug used in sexual assaults were later found in the man’s home by law enforcement officers. When confronted with the video evidence depicting him drugging the woman, the assailant allegedly told law enforcement, “My memory tells me no, but I can’t argue with surveillance.”
Still, the DOJ reported, the county attorney’s office declined to charge the case due to “insufficient evidence.” No other explanation was given to law enforcement.
• A clinical psychologist told investigators that after counseling victims of sexual assault in Missoula, she was reluctant to report her own sexual assault because the treatment of her clientele by the county attorney’s office was so “horrendous.”
• In another case, the perpetrator confessed to rape during the initial investigation. During the course of the defendant’s prosecution, he was allowed to have a psychosexual evaluation conducted by doctors of his choosing. He denied raping the woman in those evaluations – an assertion that was never challenged by deputy county attorneys, according to the DOJ.
• The examples include several cases in which perpetrators actually confessed to raping the victims, but prosecutors didn’t file charges. In one such case, a man who had raped a mentally ill woman admitted the attack to Missoula police. Prosecuting attorneys declined to file charges.
• The DOJ also cited a continual lack of communication between prosecutors and victims, as well as prosecutors and other law enforcement and crime victim advocate agencies. Prosecutors rarely explained to law enforcement why they refused to prosecute cases. Additionally, deputy county attorneys never had training in prosecuting adult sexual assault crimes until 2013 – a year after the DOJ began its investigation.
In his written response Friday, Van Valkenburg denied the DOJ’s assertion that the Missoula County Attorney’s Office discriminates against female victims of sexual assault. But he said he cannot “set the record straight” in specific cases because no specific information has been handed over to his department by federal investigators.
He also wrote that Montana law prohibits him from commenting on a specific case under the confidential criminal investigation information statute.
“Unfortunately, the DOJ does not feel obligated to follow Montana law (or federal law for that matter),” he wrote.
Van Valkenburg also argued that his office has an excellent relationship with the other agencies involved in the prosecution of sexual assault.
And his attorneys, who are mostly women, are well-qualified and receive appropriate training, he said. Despite their large workload, the deputy county attorneys prioritize criminal victims equally.
He also said that because of the DOJ’s report, his attorneys have suffered from unfair public scrutiny and they don’t deserve such treatment.
“These attorneys have names and faces. They are your friends and neighbors. They live in this community with their families,” he wrote. “These attorneys work extremely hard every day to protect you, the citizens of Missoula County.”
Van Valkenburg said that he has been doing his own internal investigation into the way his office handles sexual assault. He said that his numbers show higher prosecution and conviction rates than national averages and conflict with the numbers the DOJ found in its investigation.
But sexual assault convictions remain difficult for prosecutors, he said.
“Sexual assault cases are among the most difficult cases prosecutors face,” he said. “In many instances, victims do not want the cases prosecuted if they are going to be subjected to unfair scrutiny.”