Missoula: Rape and the Justice System in a College Town

  Like thousands of other defendants ensnared in the criminal justice system, Brian Banks accepted a plea deal. To avoid going to trial and placing his fate in the hands of a jury, Banks agreed to plead no contest to the rape charge, spend at least five years in prison, remain on probation for an additional five years, and register as a sex offender.

  While Brian Banks was serving his time, Wanetta Gibson and her mother filed a lawsuit against the Long Beach Unified School District, claiming that lax security at Poly High School created an unsafe environment that led to her being raped. The suit was settled out of court, with the school district agreeing to pay Gibson $1.5 million.

  Nine months after Gibson says she was raped, however, her conscience began to bother her. In March 2011, a few years after Brian Banks was released from prison, he logged onto Facebook and saw he’d received a friend request from Wanetta Gibson, his accuser. Banks, who was unemployed and still trying to get his life in order, accepted the request and learned that Gibson wanted to let “bygones be bygones.” Banks asked if she would meet with him in the presence of a private investigator, Freddie Parish, whose son had been a teammate of his at Poly. Gibson agreed, and during their meeting she admitted what Banks knew to be the truth all along: He had not raped her.

  Unbeknownst to Wanetta Gibson, Parish was secretly recording the conversation. Armed with Gibson’s confession, Banks set out to clear his name with the assistance of an attorney named Justin Brooks, who worked for the Innocence Project, a nonprofit organization dedicated to exonerating the wrongly convicted. Less than a year after making the accusation, Gibson, it transpired, had confessed to a classmate that she’d concocted the rape story to prevent her mother from learning that she was sexually active.

  Brian Banks’s conviction was reversed in May 2012. Thirteen months later, the Long Beach Unified School District won a $2.6 million default judgment against Wanetta Gibson to recoup the settlement she had received, plus interest and damages.

  So Banks was exonerated, but it can hardly be said that the outcome was just. His reputation was destroyed. He was denied the opportunity to attend college on a scholarship and play football for USC. Unlike his high school teammate DeSean Jackson, who became a nationally recognized celebrity, Brian Banks’s shot at NFL stardom was stolen from him by Wanetta Gibson.

  After Brian Banks was absolved, he was signed by the Atlanta Falcons and played in the 2013 NFL preseason, but he was cut from the team before the first regular-season game. It’s not easy to make an NFL roster as a twenty-eight-year-old; after an eleven-year hiatus from football, more than five years of which were spent behind bars, it’s almost impossible.

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  NOBODY SHOULD BE subjected to what Brian Banks was forced to endure. Police and prosecutors are morally and professionally obligated to make every effort to identify specious rape reports, safeguard the civil rights of rape suspects, and prevent the falsely accused from being convicted. At the same time, however, police and prosecutors are obligated to do everything in their power to identify individuals who have committed rape and ensure that the guilty are brought to justice. These two objectives are not mutually exclusive. A meticulous, expertly conducted investigation that begins by believing the victim is an essential part of prosecuting and, ultimately, convicting those who are guilty of rape. It also happens to be the best way to exonerate those who have been falsely accused.

  Rape victims provide police with more information—and better information—when detectives interview them from a position of trust rather than one of suspicion. Which is not to suggest that cops should simply accept the veracity of victims’ stories without subsequently corroborating them. They need to “trust, but verify,” as President Ronald Reagan famously described his approach to international diplomacy.

  The sad tale of Brian Banks notwithstanding, police and prosecutors generally do a pretty good job of weeding out false rape accusations to avoid charging the innocent. But cops and prosecutors are not nearly as conscientious when it comes to pursuing charges against those who are guilty. This is borne out by statistics indicating, indisputably, that the overwhelming majority of rapists get away scot-free.

  In a highly regarded paper published in 2010, “False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases,” David Lisak and three co-authors found that the prevalence of false allegations is between 2 percent and 10 percent; that figure was based on eight methodologically rigorous studies. In the concluding paragraphs of this report, Lisak noted,

  [T]hese findings contradict the still widely promulgated stereotype that false rape allegations are a common occurrence.

  In the emotionally charged public discourse about sexual violence, it is often the case that assertions are made without reference to research data. Such assertions not only undermine rational discourse but also damage individual victims of sexual violence. The stereotype that false rape allegations are a common occurrence, a widely held misconception in broad swaths of society, including among police officers, has very direct and concrete consequences. It contributes to the enormous problem of underreporting by victims of rape and sexual abuse. It is estimated that between 64% and 96% of victims do not report the crimes committed against them…, and a major reason for this is [the victim’s] belief that his or her report will be met with suspicion or outright disbelief.

  The stereotype also contributes to negative responses to victims who do report, whether by family members or by personnel within the criminal justice system. When law enforcement personnel believe that half or more of rape reports are fabricated…, their approach to victims can easily become more akin to hostile interrogation than to fact finding.

  Rape is the most underreported serious crime in the nation. Carefully conducted studies consistently indicate that at least 80 percent of rapes are never disclosed to law enforcement agencies. Analysis published in 2012 by Kimberly Lonsway, director of research at End Violence Against Women International, and Joanne Archambault, formerly a police sergeant in charge of the San Diego Sex Crimes Unit, suggests that only between 5 percent and 20 percent of forcible rapes in the United States are reported to the police; a paltry 0.4 percent to 5.4 percent of rapes are ever prosecuted; and just 0.2 percent to 2.8 percent of forcible rapes culminate in a conviction that includes any time in jail for the assailant. Here’s another way to think about these numbers: When an individual is raped in this country, more than 90 percent of the time the rapist gets away with the crime.

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  ONLY THREE DAYS after Kerry Barrett and Kaitlynn Kelly met with Missoula Chief of Police Mark Muir, in November 2011, the University Court ruled that Kelly’s assailant, Calvin Smith, was guilty of rape and expelled him. The action taken by the university was a disciplinary matter, however, not a legal proceeding. It had no impact on Chief Deputy County Attorney Kirsten Pabst’s contention that her office lacked sufficient evidence to establish probable cause for prosecuting Smith. The criminal case against him was not reopened, and details of the university’s proceedings against him were sealed.

  Smith’s expulsion for rape had serious repercussions. It made it all but impossible for him to attend any other public college or university in Montana. But he was not required to register as a sex offender, and the fact that the University Court had found him guilty of rape did not appear anywhere in the public record. Smith returned home, enrolled in a nearby community college, and resumed posting banal comments on social media as if nothing had happened. On November 29, eleven days after the University Court hearing, he joked on his Facebook timeline about getting an erection from watching a Victoria’s Secret fashion show.

  Kelly’s life, on the other hand, was utterly transformed by the rape. “I stayed in school a little while after the University Court hearing,” she told me, “but I wasn’t attending classes or doing anything. I just sat in my room, in bed, crying all the time.” In early December, Kelly’s mother convinced her to come home so her family could look after her. “At
that point I dropped out of school and haven’t been back since,” Kelly said. “The University of Montana is ruined for me. I did get counseling when I first got home, but I still cry all the time. It’s something in my mind. I can’t stand to talk about what happened, or even think about it, because it makes me feel like shit. I’ve tried to forget, but—” She left the remainder of the sentence unstated.

  Barrett remained traumatized long after being assaulted, too. After completing her final exams in mid-December 2011, she flew home to New Jersey for the Christmas break. On December 21, while surfing the Internet, she happened to see reporter Gwen Florio’s story in the Missoulian about Kelsey Belnap, who was allegedly gang-raped by members of the UM football team on December 15, 2010. “When I read that the Missoula County Attorney refused to file charges because the football players claimed the sex was consensual,” Barrett told me, “I began to wonder if maybe this was a pattern. I began to do some research into how often rape cases are prosecuted or not prosecuted in Missoula, and it made me really, really angry. So I decided to call Gwen Florio and tell her about my own experience with the police and prosecutors.” Barrett also persuaded Kaitlynn Kelly to talk to Florio.

  Florio wrote an article about the two women that was published in the Missoulian on January 7, 2012; a second, more detailed piece appeared on January 8. Neither article revealed the women’s names. In the latter article, Florio gave Kirsten Pabst the opportunity to explain her decision not to prosecute Calvin Smith for raping Kaitlynn Kelly. “We have so much reverence for the fact that when we file sex charges against someone, it’s going to ruin their life,” Pabst said. “Filing charges rings a bell that cannot be unrung.”

  When Missoula City Councilwoman Cynthia Wolken read Florio’s articles about the way the Missoula police handled Barrett’s and Kelly’s cases, she was concerned enough to request that Chief of Police Mark Muir appear in a videotaped forum held on January 25, 2012, to answer questions from members of the city council and the public. During Muir’s remarks, which lasted more than an hour, he acknowledged that “the victim needs to be our priority” and that the police department had to “find ways to challenge our officers to be better communicators” with sexual-assault victims.

  After Muir finished, Barrett walked up to the microphone and stood before the fifty or sixty people seated in the council chambers. “My name is Kerry Barrett,” she began in a tremulous voice, “and I was sexually assaulted in September.” She’d decided the time had come to publicly identify herself as one of the victims who had been denied justice by the Missoula police and the Missoula County Attorney’s Office. For the next several minutes she explained some of the issues she had with both the police and the prosecutors. Her harshest criticism was directed at prosecutor Kirsten Pabst for testifying at the University Court hearing on behalf of Calvin Smith: “The fact that she would show up to a university hearing on her own accord, voluntarily, to defend a rapist and keep a sexual predator in our community is extremely alarming to me.”

  As the event was drawing to a close, Missoula City Councilman Mike O’Herron stated that he was “particularly and profoundly impressed” by Barrett’s willingness to share her experience and express her concerns in a public forum. “It’s made my week,” O’Herron told her. “Your courage and your fortitude and your wherewithal to step up to that mike. It’s affected me, and I appreciate you doing that. Way to go.”

  Not everyone in the room was pleased by Kerry Barrett’s candor, however. When the hearing was over, as she was preparing to leave, Barrett was approached by Missoula County Attorney Fred Van Valkenburg, the man who ran the prosecutor’s office and acted as Kirsten Pabst’s boss. He was visibly angry, Barrett recalled, and told her, “I want to talk to you!”

  “Okay,” Barrett replied, undaunted. “I want to talk to you, too.”

  “What you said up there about Kirsten Pabst isn’t true!” Van Valkenburg sputtered, according to Barrett. “She was subpoenaed! She was required to testify!”

  “Subpoenaed?” Barrett said. “By who? It was a school hearing! You know better than anybody that the university doesn’t have the power to subpoena witnesses.”

  “She was subpoenaed by the defendant and his lawyer,” Van Valkenburg said.

  Barrett pointed out that Calvin Smith’s lawyer, Josh Van de Wetering, had also asked Detective Connie Brueckner to appear at the university hearing, but Brueckner’s boss, police chief Mark Muir, had refused to let her testify. “So don’t try to tell me Pabst was forced to go to that hearing,” Barrett said to Van Valkenburg. “It was her own decision to testify.”

  “Okay,” Van Valkenburg conceded. “Technically, I guess she wasn’t required to appear at the hearing. But she felt she had a moral duty to testify.”

  “She had a moral duty to keep a rapist in our community?” Barrett demanded.

  “Whoa!” Van Valkenburg said with a flushed face, according to Barrett. “You’re talking as if you know all the details of this case. I can assure you that there are many things you’re not aware of.” Van Valkenburg had no idea that Kerry Barrett had testified at Calvin Smith’s University Court hearing and that she had a much more accurate understanding of what Smith did to Kaitlynn Kelly than did either Pabst or Van Valkenburg.

  “Actually, we’re talking about one of my very good friends,” Barrett said. “So I know a lot more about the case than you think I do. And one of the things I know is that Kirsten Pabst, who is supposed to prosecute rapists, instead went out of her way to defend a rapist in an effort to keep him enrolled at the university and on the streets of Missoula.”

  “She was simply acting on her belief that he shouldn’t be expelled for a crime he didn’t commit!” Van Valkenburg protested.

  The fact that Pabst believed Smith’s testimony over Kelly’s, Barrett retorted, “proves my point that your office assumes victims are lying.”

  By this time, Barrett recounted, Van Valkenburg “was shouting, and other people in the room were staring at us, wondering what the hell was going on. So I told him, ‘I know, I know: It’s all about those bells. They can’t be unrung.’ ” Then Barrett spun away and walked out of the room.

  Kerry Barrett’s comments at the hearing that night made a lasting impression on both Fred Van Valkenburg and Kirsten Pabst, however. Five months later, when the Missoula rape scandal was approaching full boil, Pabst was still so perturbed that she let fly with a rant on her personal blog that blamed Kerry Barrett, Kaitlynn Kelly, and Gwen Florio (without actually naming them) for manufacturing an unwarranted media frenzy. On Tuesday, June 19, Pabst posted a bizarre screed titled “Why Reporters Should Be Elected Officials.”

  “Lawyers who violate the rules of professional responsibility answer to the Montana Supreme Court’s Commission on Practice,” she wrote, and police officers who break the rules are likewise held accountable. But reporters who act unethically are accountable to nobody. “Specifically,” Pabst explained,

  I refer to the Missoulian’s campaign to make the people of Missoula believe we are in the midst of a sexual crisis to frighten people into buying papers. Lots of papers….

  Without getting into inappropriate detail, I assure you that the foundation for the string of “sexual scandal” articles is not based in fact. The unfortunate reality is that the officials in charge of setting the record straight have their hands tied by the Montana Confidential Criminal Justice Information Act. When the police and prosecutors decline to file charges against a suspect, all of the facts…are legally sealed….You wouldn’t want the world to think you sell drugs to schoolchildren just because your crazy neighbor is pissed because your dog barks too much. Or worse—you wouldn’t want to be labeled a child molester because your vindictive ex said you hurt your own child. It happens with more frequency than we would like to believe.

  So why can the Missoulian publish allegations labeling legally innocent people as “sexual offenders” because a couple of disgruntled young adults, who get to remain anonymous,
spin a good story to a reporter too lazy to check the facts?…The answer is that reporters answer to no one, except their corporate owners.

  Kerry Barrett had a different opinion of the Missoulian’s coverage. Barrett pointed out that the number of rapists who avoid prosecution is vastly greater than the number of innocent men who are wrongly charged with rape. Prosecutors like Pabst who decline to pursue rape cases, Barrett suggested, should receive more scrutiny in the news media, not less, and Gwen Florio deserved to be praised for her courageous reporting about Missoula’s rape problem. “Florio has suffered so much abuse,” Barrett said, “but she was instrumental in bringing this to the attention of the public. If she hadn’t reported it, it would have been swept under the rug, and nothing would change.”

  CHAPTER TEN

  Zeke Adams sexually assaulted Kerry Barrett, she alleged, in September 2011, near the beginning of her senior year at the University of Montana. For several months thereafter, until she graduated and left Montana, Barrett would occasionally encounter Adams on the UM campus, causing her to recoil in disgust and wonder how many other women he’d assaulted previously and would assault in the future.

  In late 2013, two years after Kaitlynn Kelly was raped by Calvin Smith, she told me that she couldn’t help thinking about women Smith might have subsequently raped, as well. “Once a rapist, always a rapist,” Kelly said. “He’s going to do it again, if he hasn’t already.”

  Research by David Lisak suggests that Barrett’s and Kelly’s concerns about their assailants are not unfounded. In the 1980s, when Lisak was studying rape as a graduate student at Duke University, almost all of the research at the time had been done on men in prison who had been convicted of raping strangers. It showed an alarming tendency among incarcerated rapists to commit multiple acts of sexual violence. “But this research didn’t match the circumstances we were encountering when we interviewed rape victims,” Lisak told me, “almost all of whom had been sexually assaulted by people they knew.”