When Calvin Smith said, “It’s okay. We’ll be quiet,” in reply to her initial withdrawal of consent, Kelly can’t recall if she reiterated that she wouldn’t engage in sex while other people were in the room. But she is certain that she didn’t say anything that could have been interpreted as an affirmation of consent after she withdrew it upon entering the room. And the University of Montana’s policy concerning rape and other sexual misconduct clearly states that consent cannot be inferred “from silence, past consent, or consent to a different form of sexual activity.”
Kaitlynn Kelly told both Detective Brueckner and Dean Couture that while she was unconscious, and therefore incapable of granting consent, Smith removed her pants and underwear and penetrated her vagina with his fingers. This prompted a member of the court to ask Pabst, “You can’t give consent when you’re asleep. So even if you’d given it previously, that doesn’t count if you’re asleep, right?”
“Correct,” Pabst replied. A moment later, however, she hedged: “Well, it depends. That’s not really a hard-and-fast rule. But some people would argue that if I go home with someone and we say, ‘Well, we’re going to go have sex,’ and then I fall asleep and wake up and he’s having sex with me—some people would say that’s consensual, and some people would say it’s not.”
The questioner followed up: “What does the law say?”
“I don’t know the answer to that,” Pabst answered. “There is no hard-and-fast rule.”
A different member of the court asked Pabst to confirm that to withdraw consent, “all you have to do is say ‘no’ or ‘stop’ one time, and you have withdrawn consent.”
“Usually that is the case,” Pabst confirmed. “If the defendant’s in hearing, and understanding of that, and he hears someone say ‘no,’…‘no’ means no. There is no question about that if that is conveyed.”
But Kirsten Pabst refused to concede that Kaitlynn Kelly had clearly said “no” or that she had been too inebriated to understand what she’d agreed to do. “There just aren’t that many facts in dispute here,” Pabst told the court. Before Kelly entered her residence hall with Calvin Smith, Kelly told the friend she was with, Greg Witt, that she thought Smith was cute, and she agreed to have sex with him. And Pabst didn’t think Kelly “was too drunk to give consent” at the time.
Dean Charles Couture accused Pabst of jumping to conclusions. Just because Kelly said Smith was cute, Couture wondered, “and they agreed to go back and have voluntary sex, are you assuming that they went and had voluntary sex?” Pabst, he argued, seemed to be ignoring the fact that Kelly withdrew her consent as soon as she and Smith entered her room.
Pabst replied that nothing in the case report she’d received from Detective Brueckner confirmed that Kaitlynn Kelly ever clearly said no. “I have not jumped to any conclusion,” Pabst insisted.
—
EARLY IN HER testimony, Kirsten Pabst told the University Court, “There is no better predictor of future behavior than past behavior….With Mr. Smith’s case, he has absolutely no criminal history at all. There is not even a traffic ticket that we could find on the record.” All of Smith’s acquaintances, Pabst said, had described him as “a stellar citizen” who had never been in trouble. Calvin Smith was “happy-go-lucky, kind, compassionate. Those are things that we have to take into account when we are deciding whether or not this is a case that we are going to charge.”
At another point, Pabst said she found it significant that when Detective Brueckner interviewed Smith at the police station and told him that Kaitlynn Kelly had accused him of raping her, Smith “became distraught, and tearful, and extremely sorry that she was upset. He said that he had never meant to hurt her or make her sad….He seemed genuine in his emotions and was really surprised by the accusation.”
As Kaitlynn Kelly listened to Pabst tell the court that Calvin Smith was too kind and compassionate to be a rapist, she was dumbfounded. “Kirsten Pabst refused to even talk to me when I was trying to find out why nothing was being done about my case,” Kelly recalled bitterly. “And then she goes out of her way to show up at University Court to testify for the asshole who raped me? I couldn’t believe it.”
On the advice of his lawyer, Josh Van de Wetering, during the hearing Calvin Smith declined to testify or answer questions from court members. In lieu of giving a statement to the court, Smith asked Pabst to describe the brief statement he gave to Detective Brueckner on October 11, then tell the court what she “thought about it.”
Pabst responded, “Everyone absolutely has the right to remain silent, but it’s impressive to me when people are willing to come forward and tell what happened, openly and honestly, which is what Mr. Smith did with Detective Brueckner….He came in voluntarily and answered all of her questions. According to Detective Brueckner, he sincerely stated that he really thought that [Kaitlynn Kelly] was enjoying what was going on, at least at the beginning, until he realized that wasn’t the case.” Pabst told the court that before Calvin Smith penetrated Kelly with his fingers or penis, “he said that they made out, there was some kissing involved. Much of what he said mirrored what the victim said about…a brief period of oral sex.” All of which Pabst saw as evidence that the sex was consensual.
Kirsten Pabst didn’t consider the possibility that Smith’s presumption of entitlement, amplified by his drunkenness, led him to disregard Kaitlynn Kelly’s commands to stop. When they entered Kelly’s dorm room and saw two other people asleep, instead of accepting her pronouncement that having sex was no longer possible, Smith dismissed the change in plans by saying, “We’ll be quiet.” A few minutes earlier she’d invited him to knock boots, and he wasn’t going to let her withdraw the offer now, when he was on the verge of finally shedding his virginity. A deal was a deal. She’d said yes once, and that was all the consent he thought he needed. Once Kelly was unconscious, Smith pulled off her pants and underwear and started jamming his fingers into her vagina. When the intense pain woke her up and she begged him to stop, he countered, “No, just wait” and then grabbed the back of her head and thrust his erect penis into her mouth.
Most women are all too familiar with men like Calvin Smith. Men whose sense of prerogative renders them deaf when women say, “No thanks,” “Not interested,” or even “Fuck off, creep.”
Smith forced Kaitlynn Kelly to perform fellatio; Kirsten Pabst referred to this as a “brief period of oral sex” and asserted that Smith genuinely believed Kelly was “enjoying what was going on.” But if Pabst had taken the time to listen to the recording of Detective Brueckner questioning Kelly, she would have heard a very different description.
Kelly told Brueckner that after Smith finished stabbing his fingers painfully into her vagina, and before he started stabbing his fingers painfully into her anus, “He decided that he needed oral sex. So he kept pushing my head down—like, my throat hurt the next day. I was gagging a lot. I’m surprised my roommate didn’t wake up from me doing that. Because it was not pleasant….He pulled me over on top of him and just kind of, like, unzipped, and pulled it out, and then started shoving my head down….I couldn’t breathe. I was spitting everywhere. He was gagging me really bad.”
Calvin Smith’s claim that he believed Kaitlynn Kelly enjoyed the sexual acts he inflicted on her is revealing. A callow eighteen-year-old, he’d testified earlier that “what happened with Kaitlynn is the farthest I’ve ever really gone with a woman.” By Smith’s own admission, his understanding of female sexuality was derived primarily from Internet pornography. Hence his explanation to Dean Couture, in October, that he wanted to make Kelly “squirt.” The porn Smith viewed led him to believe that vaginal squirting was the supreme female expression of sexual pleasure and that frenetically jabbing his fingers into her vagina and anus would elicit such a response.
A rapist, by definition, is only interested in gratifying his own desires. A rapist doesn’t care what a woman wants. If he did, he wouldn’t rape.
—
WHEN A MEMBER of the
University Court asked Kirsten Pabst whether she thought Calvin Smith’s theft of Kaitlynn Kelly’s jeans was “indicative of anything,” Pabst dismissed its importance. “It kind of reminded me,” she said, “of a teenage boy thing.”
Pabst, however, thought that minor inconsistencies in Kelly’s testimony were quite important. “There were several points…where [Kelly’s] account of what happened—the chronology—changed, which was pretty significant,” Pabst told the court. “Because at one point she said that she woke up to him digitally penetrating her, and it was really painful. But then later she said he forced her to perform fellatio on him…[and] that happened first. So she already would have been awake at the point where she said he forced her to perform fellatio, even though [previously] she said this whole thing started with her waking up to [his fingers in her vagina].”
Pabst insisted that Kelly’s conflicting accounts of when Smith thrust his penis into her mouth raised questions for her as a prosecutor: “One, am I ever going to be able to convince a jury that this crime happened beyond a reasonable doubt? And two, have I reached my threshold of probable cause? We have to take into account those inconsistencies of the victim’s allegation.”
When she was a young single mother and college dropout struggling to pay the bills, Kirsten Pabst pulled herself up by her own bootstraps. Later, she was a victim of domestic violence. Years after that, in 2008, she came home from work one afternoon to discover the lifeless body of her thirteen-year-old son, who’d perished in a horrible accident. Emotional trauma was not an abstract concept to Pabst. She’d experienced it firsthand. In her opinion, nevertheless, what happened to Kaitlynn Kelly was no big deal, and it certainly wasn’t rape. It was merely a consensual hookup that had failed to live up to Kelly’s expectations. Kelly needed to get over it and move on with her life.
“I have not met [Kaitlynn Kelly],” Pabst admitted. “I have not talked to her. I’ve talked to a lot of victims, though, and I work with victims, and people consider me a staunch victim’s advocate. So I have no doubt that she feels traumatized by these events.” But Pabst believed that Kelly’s anguish “happened more after the fact,” when, the following morning, hungover, she looked back on the maladroit sex and “realized the encounter…didn’t pan out the way that really either of them had planned.”
Pabst is simply wrong about this, and about many other details of the encounter between Kaitlynn Kelly and Calvin Smith. Because she refused to talk to Kelly, Pabst’s conclusions were based on bad information, and her testimony about the inconsistencies in Kelly’s testimony was incorrect. Kelly never told Brueckner, or Couture, or anyone else that the fellatio happened first. Kelly unwaveringly asserted that she woke up when she felt Smith violently stabbing his fingers into her vagina.
The only inconsistent aspect of Kelly’s testimony concerned the chronology of what happened after she was awakened by Smith’s digital penetration. Initially, she told Officer Krastel that Smith first violated her by inserting his fingers into her vagina, and then stabbed them into her anus, and then forced her to perform fellatio. Later, when interviewed by Detective Brueckner, Kelly said that although she was indeed first awakened by Smith stabbing his fingers into her vagina, next he pulled her down to his crotch and forced her to perform fellatio—after which he stabbed his fingers into her anus.
According to David Lisak, Russell Strand, and other experts who have served as investigators or consultants in rape cases, such inconsistencies in the accounts provided by victims of sexual assaults are quite common and can be easily explained by the way trauma affects memory—a phenomenon documented in numerous empirical studies published in peer-reviewed journals. As psychiatrist Judith Lewis explains in her book Trauma and Recovery,
Traumatic memories have a number of unusual qualities. They are not encoded like the ordinary memories of adults in a verbal, linear narrative that is assimilated into an ongoing life story….[R]ather, they are encoded in the form of vivid sensations and images.
It is therefore not surprising that Kaitlynn Kelly’s memory of being violated by Calvin Smith was impressionistic rather than perfectly linear. Despite the minor chronological inconsistencies in Kelly’s statements, moreover, Smith’s own statements corroborated Kelly’s claims that each of the sex acts she described actually occurred. Pabst’s assertion that slight contradictions in Kelly’s testimony were a significant factor in her decision not to prosecute Smith thus raises disturbing questions about Pabst’s credibility—not only in relation to her participation in the University Court hearing, but also concerning her peremptory dismissal of Missoula County’s criminal case against Smith.
—
WHEN KIRSTEN PABST concluded her testimony, Calvin Smith called his next witness, Ralph Richards, who told the University Court that he and Smith had gone to the same high school and had been close friends since tenth grade. Richards was in Smith’s dormitory room, visiting Smith’s roommate, when Smith returned from his encounter with Kaitlynn Kelly. “When Calvin came home,” Richards acknowledged, “he was carrying a pair of jeans….He said he didn’t know why he had them, and we just kind of dropped it.” Then, in the university courtroom, out of the blue, Richards let out a weird, involuntary guffaw. Although he quickly suppressed his laughter, there was no mistaking that the theft of Kelly’s pants struck Richards as hilarious.
Continuing his testimony, Ralph Richards said that after Calvin Smith came into the room carrying the jeans, the two of them went out for a walk, and Smith told him “that he had fingered [Kaitlynn Kelly], and that she gave him oral sex for a minute.” Recalling this conversation caused Richards to cackle with laughter again, as if he were playing Beavis to Smith’s Butt-Head. When he’d regained his composure, Richards told the court, “I didn’t think anything of it. That’s all he kind of told me.”
Ralph Richards was excused, and Calvin Smith’s father came into the room to testify as a character witness. Calvin asked him, “Can you describe what kind of person I am?”
“What I know of you, you’ve been a very good kid,” Smith’s dad replied in an emotional voice, his eyes welling with tears. “You never disrespect me. Never use God’s name in vain….I have been told by your friends that you are just a big teddy bear. And you are a teddy bear. I don’t believe you could hurt anybody.”
The next witness was Smith’s mother, Mary. “What did you think when you heard about these allegations?” Calvin asked her.
“I thought there was absolutely no way that my son would intentionally hurt anybody, ever,” she answered.
“How much time have you spent around your son when he was intoxicated?” a member of the court asked Mrs. Smith.
“I haven’t,” she answered.
—
AFTER CALVIN SMITH’S parents finished testifying, Calvin asked the University Court to continue the hearing at a later date, so he could have more time to present his case. “No,” the chairwoman pronounced. “The proceedings just allow for a court hearing, and this is your court hearing. Do you have a statement?”
Smith declined. “I’ve given my statement to the police,” he explained. “On my lawyer’s advice, I plead the Fifth.” His lawyer, Josh Van de Wetering, had counseled Smith not to testify at the hearing, because if criminal charges were brought against him at a later date, anything he said could potentially be used against him by prosecutors.
The court chair urged Smith to make a statement, regardless: “This is a confidential proceeding, so I don’t think that’s relevant.”
“He has a right to remain silent,” Dean Couture pointed out to the chairwoman.
“Can we ask him questions?” the chairwoman asked Couture.
“You can,” Couture replied, “but he would then just say he is not going to answer them.”
David Aronofsky, the University of Montana’s legal counsel, had been silently observing the hearing and was not supposed to address the University Court. After pondering Calvin Smith’s request to continue the hearing at a la
ter date, however, he spoke up. “I gotta tell you,” he said, “I don’t care if the court gives me permission or not. As the chief legal officer of this university, I have some concerns about assuming this proceeding has to end today. If there is material evidence—”
“David,” Charles Couture interrupted, “you are not allowed to participate.”
“I am participating, Charles!” Aronofsky protested.
“You are not allowed to participate!” Couture said again, raising his voice.
“Well, then I am doing this without authorization,” Aronofsky declared.
“You certainly are,” Couture said sternly.
“And let the record note that I’m speaking without the authorization of the court,” Aronofsky continued. “But part of my responsibility as chief legal officer is to make sure that all of the parties are compliant with the law. And if there is evidence that this court can receive that could influence the decision that could result in the remedy of expulsion, in my opinion there is an obligation by the university for this court to consider it.”
“And I object that the chair is not shutting down David,” Dean Couture told the court. “He has no right to participate.”
The issue arose because Missoula County prosecutor Kirsten Pabst’s testimony at the hearing was based on statements and evidence obtained by the Missoula Police Department, but the police had not released any of those statements or any of that evidence to Kaitlynn Kelly or Calvin Smith, despite requests from both of them. Smith and Josh Van de Wetering thought some of this evidence might turn out to be exculpatory, and they wanted a chance to present it to the University Court before a verdict was rendered.
According to University of Montana policy, however, Dean of Students Charles Couture had a duty to investigate the alleged rape of Kaitlynn Kelly independently. Thus, neither the criminal investigation by the Montana Police Department nor Kirsten Pabst’s determination that there was insufficient probable cause to prosecute Calvin Smith should have any bearing on the university’s disciplinary proceeding.