Calvin Smith had been given multiple opportunities to present his side of the story to Dean Couture and Vice President Teresa Branch, and to call witnesses at the University Court hearing. Couture not only believed that he had done a thorough investigation; he thought he’d done a better job of gathering and weighing the evidence than the Missoula police or Kirsten Pabst had. In his view, there was no reason to have a second hearing.
The chair of the University Court agreed. “We are going to proceed,” she announced, trying to reestablish order. “We followed the procedures on the timing,” she told David Aronofsky, explaining why the hearing would not be continued at a later date. “The timing is tight for a reason. You don’t get forever to try this, like you do in a legal proceeding. I don’t hear any of the court members objecting to finishing tonight.”
Concerned about whether Calvin Smith had been granted sufficient time to interview witnesses and prepare in advance of the hearing, a court member asked, “Is it true that [Smith] received notice from Charles Couture on November 2 [that he was being investigated]?”
“No,” Dean Couture said. “He was informed of the alleged misconduct, dated my letter to him, October 20.”
“Okay,” the court member said. “So it’s been almost a month….We’ve heard everything reasonably, and he’s had a month to get all of his ducks in a row,…and we’re not a court of law. So I’m sorry.”
“May I explain?” Josh Van de Wetering asked, hoping to enlighten the University Court about why Calvin Smith, his client, needed more time to present his case.
“No,” Couture said, cutting him off.
At this point the chairwoman halted the hearing to hold an executive session. She thought it prudent to clear the room so the court members could pause, take a collective deep breath, and have a brief discussion to ensure that they were doing everything properly. Several minutes later, when the hearing was called back to order, she announced, “First of all, the court would like to remind both legal counsels that you are welcome to confer with your associated parties, but please don’t directly address us, as tempting as that might be. The court unanimously agrees with my ruling that we finish this hearing tonight.”
A few witnesses were called back for further questioning, and then Dean Couture began his closing statement. “Most parents are going to say fine things about their children,” he reminded the court, “and want to believe the best about their children.” But, he added, “We all know that parents don’t know everything that their kids do. That’s a given fact. The first day I met with Calvin in my office, he cried most of the time. He said [the sex] was consensual. He wasn’t crying out of the basis of any heartfelt concern for the victim. He was scared. He was absolutely terrified….Watching him cry, I had emotional difficulty dealing with that myself. He was hurting, very much so.”
At the time of their first meeting, Dean Couture was in the midst of investigating the allegations against Calvin Smith; he hadn’t yet received Kaitlynn Kelly’s medical report or interviewed key witnesses. A week or so later, after he’d concluded his investigation and determined that Smith was guilty of rape, Couture summoned Smith to his office again. “When he entered my office the second time,” Couture told the court, “his demeanor was entirely different. He was cocky. He didn’t really seem to care what I had to say [about] the additional evidence that I shared with him.”
Immediately after Dean Couture finished speaking, Calvin Smith presented his closing statement. “The reason I cried in front of the dean is the same reason I cried in front of the police officer,” Smith explained. “I felt bad….I never meant to hurt anybody. I was scared. I mean, I was looking at expulsion. I was looking at possible prison time. I’ve never been in trouble. I never even got sent to the principal’s office when I was in high school….I know I made mistakes that day. I definitely drank too much. I stole pants. I went into the girls’ bathroom. But I know that she never said ‘no’ while it was happening. And I know that I didn’t rape her. I just find it hard to believe that she said ‘no’ seven or eight times, but as soon as she said, ‘I have to pee,’ I let her up.”
Following these words from Smith, the hearing was concluded. Two weeks later, on December 2, 2011, the University Court announced its decision in a letter to Dean Couture and President Engstrom:
The Court finds that Ms. Kelly removed consent at three different points (at least): upon entering the occupied room, upon going to sleep, and upon stating “no” or “stop” during the acts. This is corroborated by the violent nature of the acts, as evidenced by pain, blood, abrasions, and bruising.
Thus, Mr. Smith did so violate the Student Conduct Code, Section V.A.18 by sexual intercourse without consent (rape), using the preponderance of evidence standard as required by the Department of Education (unanimous with seven votes in favor, zero votes opposed)….
Given the severity and harm resulting from the sexual assault without consent (rape) and the requirement to protect the complainant, the Court imposes the following sanctions (six votes in favor, one vote opposed):
1. Immediate expulsion from the University.
2. Prohibit access to University property or University-sponsored activities, effective immediately.
The verdict infuriated Calvin Smith and his family, who were absolutely certain that Calvin was innocent, had been falsely accused, and was the victim of both political correctness and a rush to judgment by the University of Montana.
But Kaitlynn Kelly and her family were also unhappy with the verdict. Although Kelly is grateful to Charles Couture and the University of Montana for conducting a disciplinary proceeding that held Smith accountable for raping her, she thinks he got off way too easy. Kelly believes Smith should have been not only expelled but also incarcerated. She is angry with Kirsten Pabst, Detective Brueckner, the Missoula Police Department, and the Missoula County Attorney’s Office for refusing to even charge Smith. Kelly understands that her case might not have been easy to win had it gone to trial. But she is bitterly disappointed to have been denied the opportunity to testify in a court of law about how Smith violated her body and wounded her soul. She believes a jury should have been allowed to decide whether Calvin Smith was guilty of sexual intercourse without consent, rather than letting Kirsten Pabst make that determination unilaterally.
* * *
*1 pseudonym
*2 Emphasis written into the Student Conduct Code.
*3 MCA 46-24-104. Consultation with victim of certain offenses. As soon as possible prior to disposition of the case, the prosecuting attorney in a criminal case shall consult with the victim of a felony offense or a misdemeanor offense involving actual, threatened, or potential bodily injury to the victim…, including: (1) dismissal of the case; (2) release of the accused pending judicial proceedings; (3) plea negotiations; and (4) pretrial diversion of the case from the judicial process.
CHAPTER NINE
The more Kerry Barrett and Kaitlynn Kelly thought about the refusal of the Missoula police and prosecutors to file criminal charges against their assailants, the more discouraged they became. Before the University Court hearing, when they requested information about their cases from the Missoula police, they were ignored, prompting Kerry’s father, Kevin Barrett, to phone Missoula police chief Mark Muir on his daughter’s behalf.
Kevin Barrett is a retired police lieutenant with a doctorate from the John Jay College of Criminal Justice who presently serves as the chairman of the Criminal Justice Department at Rockland Community College, in New York. When he called Chief Muir, Kevin recalled, “I let him know right away that I was a cop, and I told him what I expected of him as a fellow cop.” Kevin expressed his concern that Muir’s officers and detectives appeared to grant less credence to the statements given by Kerry Barrett and Kaitlynn Kelly than the statements given by the men accused of assaulting them.
Kevin asked Chief Muir if he was familiar with an educational video called Duty Trumps Doubt, which is used by thousands of police de
partments across the country to teach their officers how to properly investigate rape cases. Muir replied that he knew it well, and that the Missoula Police Department showed the video as part of its training.
“One of the key messages in the video,” Kevin Barrett told me, “is how important it is for you, as a cop, to always believe the victim until every witness has been interviewed and all the available evidence has been gathered, and only then make a determination as to whether or not she is telling the truth. In most crimes, that’s what cops do. But in sexual-assault cases, too many cops don’t take that approach. So I asked Muir, ‘If you used that video to train your officers, how come one of them asked Kerry if she had a boyfriend? And why did your detective tell her that the defendant cried and talked about how his reputation would be ruined if he was charged? Why do your detectives seem more concerned about the defendant than the victim?’ ”
Kevin Barrett criticized both the police and the prosecutors in Missoula for their apparent reluctance to pursue rape cases unless they were absolutely certain they would prevail in court. He pointed out that in the decades before cops and district attorneys had the technological means to use DNA as evidence, “every rape case was a matter of ‘he said, she said.’ But we still prosecuted….Everybody likes to have a high batting average when it comes to winning cases. But sometimes you have to bring the case to court and let it be decided there, instead of deciding beforehand that the odds of winning aren’t good enough to go forward. When you have a victim who is willing to go the distance and you shut her down, what does that say to other victims? ‘Don’t bother’?” When cops and prosecutors fail to aggressively pursue sexual-assault cases, Kevin argued, it sends a message to sexual predators that women are fair game and can be raped with impunity.
On November 15, 2011, after prodding from Kevin Barrett, Muir finally agreed to meet with Kerry Barrett and Kaitlynn Kelly. During the two-hour discussion they had at the Missoula police station, according to Kerry, “Chief Muir said all the right things. He assured us he would ‘give a good ass-chewing’ to the detectives who investigated our cases. He was very apologetic about what happened and seemed to be listening carefully to our concerns. But he never actually did anything about our concerns.”
Near the conclusion of their meeting, Kerry brought up what had happened when she first reported her assault to Officer Brian Vreeland: He’d asked her if she had a boyfriend, because he took it for granted that women commonly lied about being raped. Kerry pointed out to Muir that Vreeland’s question was offensive for a number of reasons, not least of which being that the rate of false rape claims is in reality quite low, under 10 percent. “When I mentioned this,” says Kerry, “Muir got very defensive and said, ‘Actually, you’re wrong. The rate of false rape claims is around 50 percent.’ ”
On November 18, 2011, as a follow-up to their contretemps about the rate of false reporting, Chief Muir e-mailed Kerry Barrett an article titled “False Rape Allegations: An Assault on Justice,” by Bruce Gross, published in 2009 in a periodical called the Forensic Examiner. The article’s thesis, plainly stated in its title, was based largely on two academic studies: “False Rape Allegations,” by Eugene J. Kanin, published in the 1994 edition of the Archives of Sexual Behavior, in which 45 percent of 173 reported rapes were determined to be untrue, and “False Allegations,” by Charles P. McDowell, purportedly published in the 1985 edition of an obscure journal called the Forensic Science Digest, in which (according to Bruce Gross’s interpretation of the data) 45 percent of 1,218 reported rapes were determined to be untrue.
Scholars have debunked both of these articles. Kanin examined a single police department in a small midwestern city and merely took police officers at their word when they classified a rape allegation as false. He made no effort to independently corroborate whether the allegations were actually false. Furthermore, the police department in question used a polygraph, or threatened to use a polygraph, to identify the false allegations—methods widely acknowledged as unreliable. As an International Association of Chiefs of Police policy manual explains, rape victims
often feel confused and ashamed, and experience a great deal of self-blame because of something they did or did not do in relation to the sexual assault. These feelings may compromise the reliability of the results of [polygraphs and voice stress analyzers]….Some states have even enacted laws prohibiting the police from offering a polygraphic examination to sexual assault victims or from using the results to determine whether criminal charges will be filed.
As David Lisak pointed out in a critique published in 2007,
Kanin’s 1994 article on false allegations is a provocative opinion piece, but it is not a scientific study of the issue of false reporting of rape. It certainly should never be used to assert a scientific foundation for the frequency of false allegations….It simply reflects the conclusions of…[police] officers whose procedures have been rejected by the U.S. Department of Justice and by the International Association of Chiefs of Police.
Despite being discredited, the studies by Kanin and McDowell named above are still routinely cited on numerous websites dedicated to advancing the notion that American society suffers from an epidemic of spurious rape allegations by malicious women, resulting in the wrongful conviction of many thousands of innocent men. Prominent among these websites is A Voice for Men, a “men’s rights movement” blog that receives some thirty thousand page views per day. As stated on the site, AVFM’s mission is to “denounce the institution of marriage as unsafe and unsuitable for modern men,” “educate men and boys about the threats they face in feminist governance,” and “push for an end to rape hysteria,” among other goals. In June 2014, the U.S. news director of AVFM, Robert O’Hara, told Al Jazeera America correspondent Nicole Grether,
We also want to challenge the media environment. It seems that our opponents—feminists—have a stranglehold on the media and the entire discourse about gender relations and gender issues.
In O’Hara’s opinion, the American news media, under the influence of a feminist cabal, have unfairly painted “the men’s rights movement as a bunch of crazy psychopaths who hate women and want to kill them…and they do this in order to basically silence us and keep us from getting our message across.” Part of that message concerns what AVFM perceives to be an alarming upsurge in false rape allegations. “It’s one of our top issues,” he says:
We hear all these silly lies: there’s a rapist behind every corner; all men are potential rapists. Common things you hear over and over again coming out of the mouths of feminists. And the inflated rape statistics, this idea that one in four women in college are going to be raped before they graduate, you hear this all the time, it’s just not true. It’s not true….
I don’t have the exact statistics with me right now, but you’ll see it’s usually around 2 percent of women in their lifetime will have some kind of problem with sexual assault. That’s the same as having been mugged or having someone break into your house….[T] his whole rape thing has been used by feminists to garner political power, lots of it, and money. The whole thing has been used as a scam.
AVFM is often shrugged off as a fringe website that functions as a soapbox for wing nuts. But it’s not just men who believe that sexual-assault statistics have been wildly exaggerated to advance a political agenda. Some of the most prominent critics of “rape hysteria” have been female writers such as Katie Roiphe, Christina Hoff Sommers, Heather Mac Donald, and Cathy Young. Other writers, such as Judith Shulevitz, Emily Yoffe, and Zoë Heller, take a more nuanced view, arguing that although campus rape is a serious problem, universities have overreacted to it, resulting in the denial of due process to men accused of rape.
Without question, blameless men are sometimes falsely accused of rape, and sometimes expelled from college or sent to prison. When this occurs, the consequences for those who have been unfairly impugned can be ruinous. The Duke lacrosse case is perhaps the most notorious example in recent years. In Ma
rch 2006, a female stripper accused three members of the Duke University lacrosse team of sexually assaulting her after she’d been hired to entertain them at a raucous party. The three men were charged with rape by Durham County District Attorney Mike Nifong, but in December 2006, Nifong was cited by the North Carolina State Bar for violating rules of professional conduct, including making more than one hundred false statements to the media. A month later, the North Carolina bar filed additional, even more serious ethics charges against Nifong, this time for withholding exculpatory DNA evidence to mislead the court, and in April 2007, charges were dropped against all three lacrosse players and they were declared innocent. Nifong, described as a “rogue prosecutor,” was disbarred for “dishonesty, fraud, deceit, and misrepresentation” shortly thereafter.
The case of Brian Banks is in many ways even more unsettling. In 2002, Banks was a junior at Polytechnic High School in Long Beach, California, a six-foot-four, 225-pound linebacker on an extraordinary football team. One of his teammates was DeSean Jackson, who went on to be an All-Pro wide receiver and return specialist for the Philadelphia Eagles in the National Football League. 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.
Shortly thereafter, Brian Banks’s life was upended. 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.