Four weeks previously, Engstrom had assigned former Montana Supreme Court justice Diane Barz to conduct an investigation into the university’s apparent outbreak of rapes. On January 31, 2012, she submitted what came to be known as the Barz Report. “The reports of sexual assaults on the UM campus now require immediate action,” she wrote. “Due to the number of incidents added since December, the investigation needs to be ongoing.”
She was proved correct on February 17, when UM students learned of two more sexual assaults in their midst, via an e-mail blast sent to the entire campus warning of a “Possible Threat to the Community.” Shortly after 2:00 a.m. on February 10, a male student from Saudi Arabia had encountered a female student on the UM campus and offered to give her a ride to her residence hall. But instead of proceeding directly to her dormitory, he said that first he needed to pick up something from his room at International House, a university-owned residence hall for foreign students. When they arrived, the male student poured her a cocktail and urged her to drink it. Immediately she began to feel queasy and lose control of her body, at which point the man began kissing her against her will. The last thing she remembers is trying to escape through a window. Friends later found her unconscious and took her to her room.
Later that same night, approximately an hour after the aforementioned victim fled from the Saudi student’s room, he drove past a different female student as she was walking to her dormitory, steered his car to the curb, and offered to give her a ride. Because she knew him, she accepted. After she got in the vehicle, the Saudi student told her the same thing he’d said to his earlier victim: He needed to stop by International House on the way to her dorm in order to pick something up. As reported by Dillon Kato in the Montana Kaimin (an independent, student-run newspaper published by the university), when the two students got to International House, the man talked her into coming up to his room, then “poured each of them a drink.” The woman soon began to feel nauseated and vomited. Her next memory, she told Kato, was of the male student
lying on top of her, both of them naked….“His breath smelled terribly. I remember the weight of him on my chest.”…She said she was having trouble moving and still felt ill. She said the man then grabbed a condom and proceeded to rape her and she yelled at him to let her go.
Eventually the man fell asleep and the effects of her spiked cocktail dissipated, allowing the woman to flee and make it back to her residence hall.
Both assaults took place in the hours before dawn on Friday, February 10, 2012. That afternoon, the first victim, who wasn’t raped, reported her encounter with the foreign student to the UM Office of Public Safety, and the campus police notified Dean Charles Couture about it on February 14. Additionally, campus cops apparently brought the perpetrator in for questioning at some point and charged him with a misdemeanor for providing alcohol to the first victim.
The second victim, who was raped, didn’t initially report the incident to the university police or the Missoula police, so UM public safety officers didn’t know about the second, more serious assault when they first talked to the foreign student. Over the weekend, nevertheless, the first victim learned about the rape of the second victim through the campus grapevine.
On February 14, 2012, the first victim, who had been assaulted but not raped, received a phone call from Dean Couture to schedule an interview with her on February 17. When she showed up for the meeting, she surprised Couture by bringing along the second victim, who had been raped. Until that moment, Couture was unaware that there even was a second victim. According to Dillon Kato’s article, Couture assured both women that he would summon the student who’d allegedly assaulted them to his office to be interviewed and “would possibly take away his visa and expel him” from the university.
In response to the rape, as required by a 1990 federal law known as the Clery Act, at 4:51 p.m. on February 17, the university disseminated the mass e-mail warning of possible “dangerous conditions” on or near its campus. University policy obligated Dean Couture to notify the foreign student that he was being investigated for the alleged rape of the second victim, which Couture did that afternoon with a phone call.
Couture didn’t ask the student to surrender his passport, however, because he had no legal authority to do that. Nor did Couture call the Missoula police to let them know about the rape. Instead, the police and other city officials learned about the rape from the e-mail alert, which did not make them happy. Approximately ninety minutes after the e-mail blast went out, Mayor Engen sent an e-mail to President Engstrom and Jim Foley, UM vice president for external relations, in which Engen said,
[I]t appears that two alleged sexual assaults are linked to a single suspect whom the Office of Public Safety had in custody and cited on a misdemeanor minor-in-possession charge. Both of the assaults appear to have happened off campus and should have been immediately reported to the Missoula Police Department. I hope the Dean of Students feels some obligation to report the crimes to us so we may engage in an appropriate, professional criminal investigation. While we understand that there are implications for the suspect based on the student code of conduct, that investigation ought to take a backseat to a criminal investigation of an alleged sexual assault.
Engen was wrong about where the assaults occurred; they actually took place on university property. But that was immaterial. Just three months earlier, the university had signed a memorandum of understanding with the city granting the Missoula Police Department jurisdiction over all felony crimes committed on the UM campus. This agreement, however, did not trump the university’s purported obligation to respect the privacy rights of the victim, in the opinion of UM legal counsel David Aronofsky. “Frankly, if a victim says, ‘I don’t want this brought to the police,’ ” he told the Missoulian’s Gwen Florio, “we’re going to honor that.”
Aronofsky’s reluctance to involve the police may also have been related to the refusal of the Missoula County Attorney’s Office to file charges in the Kerry Barrett and Kaitlynn Kelly cases. During the University Court hearing for Kelly, Aronofsky became aware that both Barrett and Kelly believed that their treatment by the Missoula Police Department and prosecutor Kirsten Pabst had been demeaning and counterproductive. Both women said they would not recommend to other rape victims that they report their assaults to the Missoula cops.
President Engstrom agreed with counsel David Aronofsky that the university did the right thing by not reporting the February 10 rape to Missoula law enforcement officials. “[A]s is required by federal law,” he told Florio, “the university cannot and did not release the names of alleged victims or perpetrators to police.” The accuracy of this statement, however, is questionable. Federal law, Montana law, and the university’s policy concerning sexual assault and the privacy of victims and perpetrators are confusing at best, and in some regards contradictory.
According to the 2011 Dear Colleague Letter issued by the U.S. Department of Education’s Office for Civil Rights, as soon as a school “has notice” of a sexual assault, “it should take immediate steps to investigate or otherwise determine what occurred, and take prompt and effective steps…to prevent its occurrence and, as appropriate, remedy its effects.” But as Diane Barz noted in her January 31 report to Engstrom, “This is the most difficult part for the UM and other universities because the guidelines are not clear on what constitutes ‘prompt and effective steps.’ ”
In any event, on Friday evening, February 17, 2012, the university provided the Missoula police with the name of the alleged rapist, and the cops immediately began looking for him, according to Assistant Chief of Police Mike Brady. On Tuesday, February 21, both victims went to the police department, gave statements to detectives, and confirmed their assailant’s identity from photographs. It was all for naught, unfortunately. Before the day was out, the police discovered that the perpetrator had fled Missoula on February 19 and had caught a flight to Saudi Arabia.
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THE COLLECTIVE ANGER i
n Missoula over the escape of the foreign rapist was searing. Less than a month after the Barz Report warned that sexual assaults on the UM campus required immediate action, the problem seemed only to be escalating. At a city council meeting on February 27, 2012, Councilman Dick Haines ripped university administrators for not doing more to prevent the Saudi perpetrator from fleeing the country. “They have to realize that person is a threat to more than just the campus,” Haines declared, adding that using federal regulations as an excuse for not immediately turning the case over to the city police was unacceptable.
“If in December you were showboating about how [preventing sexual assaults] was a top priority,” Tracy Cox, spokeswoman for the Pennsylvania-based National Sexual Violence Resource Center, told Florio, “and just two months later, this is happening, it takes your credibility down several notches. And the person fleeing—that takes it to a whole new level.”
Then, when the crisis seemed like it couldn’t get any worse, it did. At 1:16 a.m. on March 19, 2012, Irina Cates—a reporter for the local television station KPAX—posted a story on the station’s website under the headline “Griz QB Served with Restraining Order After Alleged Sexual Assault.” Cates had discovered that a female UM student had petitioned the court for protection from Jordan Johnson, the star quarterback of the football team, alleging that Johnson raped her.
Three months earlier, Johnson—a nineteen-year-old sophomore from Eugene, Oregon—had led the Grizzlies to first place in the Big Sky Conference with a record of eleven wins and three losses for the 2011 season, which ended with an impressive run at the FCS national championship. The woman he allegedly raped, Cecilia Washburn,* was a twenty-year-old junior at the UM school of pharmacy. They’d been friends since 2010, had dated intermittently and engaged in a few make-out sessions, but things had never gone further than that, sexually. Mostly their relationship consisted of exchanging text messages. Then, in the spring of 2011, Cecilia Washburn started dating another man, Jordan Johnson became interested in another woman, and the nascent relationship between Washburn and Johnson “fizzled,” as Washburn put it.
In December 2011, however, after Washburn’s relationship with her boyfriend ended, Johnson and Washburn started texting each other again. A lot. According to Missoula police detective Connie Brueckner, from December 2011 through February 4, 2012, when the rape allegedly occurred, Johnson and Washburn exchanged “a few hundred texts.” Seventy-five percent of these exchanges were initiated by Johnson. Washburn characterized their texts as “friendly and flirty” during her sworn testimony.
In early December 2011, after a Griz play-off victory, Jordan Johnson went to a party, got buzzed, and texted Cecilia Washburn to ask for a ride home so he wouldn’t have to drive drunk. When Washburn picked up Johnson and drove him to his house, he invited her inside for a quick tour of the residence, but they didn’t even kiss. More than a year later, during Johnson’s trial, his attorney asked him why he’d called Washburn that evening, instead of one of his other friends. “I don’t know,” he replied. “I just did.”
“Did you kind of like her?” the lawyer asked.
“Not necessarily,” Johnson answered. He explained that he was more interested in Kelli Froland, the woman he’d been pursuing since early 2011. “We weren’t boyfriend and girlfriend,” he said, describing his relationship with Froland, “but we liked each other.”
“Did you like her a lot?” the attorney inquired.
“Yes,” said Johnson.
In late December 2011, Cecilia Washburn left town to spend the university’s six-week winter break with her family, and Jordan Johnson went to Oregon to visit his family. They texted each other often during this period. During the first weekend of February 2012, by which time both of them were back in Missoula, they bumped into each other at an annual campus bacchanal known as the Foresters’ Ball, held on consecutive nights every winter.
It was Friday night, February 3, 2012, the first night of the ball. Approximately fifteen hundred young men and women were in attendance. Although no alcohol was served at the event, most of the students had gotten sozzled before they arrived, including both Washburn and Johnson. Cecilia Washburn had come to the ball with ten or twelve people; Jordan Johnson had come with his two closest friends, who also happened to be housemates and football teammates of his: Bo Tully and Alex Bienemann. Early in the evening, Washburn was dancing with an acquaintance when she saw Johnson walk by. “So I went up to him,” she testified, “gave him a big hug, asked how he was doing.” Johnson testified that he was happy to see her. Washburn slid her hand along the small of Johnson’s back, leaned into him, and drunkenly declared (according to Johnson and Bienemann), “Jordy, I would do you anytime.” The consequences of this nonchalant, alcohol-soaked proposition, as it turned out, were much, much greater than anyone could have imagined.
When the soiree came to an end, Johnson went home with Tully and Bienemann and crawled into his bed alone. Washburn invited some of her friends to come over to her rented house, where they socialized until 2:00 or 3:00 in the morning, and then she went to bed alone, as well.
Despite staying up so late, Washburn roused herself at 7:30 the next morning to go to work at Missoula’s Ronald McDonald House, a facility that provides support for gravely ill children and their families. She volunteered there every Saturday from 8:00 a.m. until 10:00 a.m., on Sunday mornings from 7:00 until 9:00, and all night every Monday. After her shift that Saturday morning, she went home, made pancakes for her two male housemates, and hung out with a visitor from Great Falls.
Around 2:00 that afternoon, Washburn received a text from Johnson. “Hey you!” he wrote, initiating an exchange in which he inquired what her plans were for the evening. In the flurry of messages that followed, they arranged to watch a movie together at Washburn’s house. Johnson texted her again at 10:29 p.m., and then at 10:40, to ask if she would drive over to his house and give him a ride back to her place to watch the movie, because he’d been drinking and didn’t think it was prudent for him to drive. Washburn didn’t reply, however, because she’d fallen asleep.
Growing anxious, around 10:45 Johnson phoned Washburn. Awakened, finally, by the ringtone on her phone, she answered and said she’d come right over.
When Cecilia Washburn left her house to pick up Jordan Johnson, she had not showered for more than twenty-four hours, had not brushed her hair, had not bothered to put on clean clothes or any makeup—she had done none of the things, in short, that one might expect a young woman to do if she was hoping to have sex for the first time with a man she was pursuing. As Washburn later testified, although she was definitely attracted to Johnson, and hoped to have sex with him at some point in the future, she never had any intention of having sex with him that night. She just wanted to watch a movie, maybe snuggle a little if the opportunity presented itself, and explore the possibility of rekindling some sort of relationship with him. Washburn had consumed no alcohol whatsoever since the previous night.
Jordan Johnson shared a rented house with five other football players. According to his testimony, between the hours of 5:00 and 10:00 p.m., he was drinking beer and hanging out with Alex Bienemann, Bo Tully, and some other Griz teammates. During this period, he testified, he “probably” drank no more than four or five beers, but in a statement to the Missoula police, Bienemann’s recollection was that Johnson drank three or four beers in the forty-five minutes before he departed for Washburn’s house, in addition to whatever he’d imbibed over the preceding four hours. As Johnson walked out the door, Bienemann urged him to “get ’er done, buddy!”
Johnson testified that he thought Cecilia Washburn was “really nice, a smart girl….I liked her as a person.” But, he added, “I didn’t like her as, like, a girlfriend type.” Nevertheless, when Washburn arrived outside Johnson’s house and he got into her car, he later said, he thought “it was a possibility” that they would have sex that night.
As they entered Washburn’s house, she introduced Johnson to on
e of her housemates, a close friend named Stephen Green, who was playing a video game in the living room, then led Johnson into her room to watch the movie. Washburn had previously made a commitment to pick up a friend, Brian O’Day, sometime after midnight to give him a ride home from the second night of the Foresters’ Ball; because it was already nearly 11:00, she wanted to get the movie started so they could watch as much of it as possible before O’Day called for his ride, at which point Johnson would have to go home.
The room was small. Washburn’s bed monopolized most of the floor space. Johnson took off his shoes and his watch and reclined on the bed. Washburn removed her boots, slid a DVD of a film called Easy A (a comedy inspired by The Scarlet Letter) into her television, and then lay next to him to watch the movie. After a few minutes they began kissing. According to Washburn’s testimony, although she enjoyed it, she told Johnson, “Let’s just watch the movie,” and they stopped kissing but continued to embrace. He was on his back; she was lying on her left side with her right arm across his chest and her head on his shoulder.
A couple of minutes later, Johnson turned to her and they started making out again. “I thought, ‘Okay,’ ” Washburn recalled. “It seemed fine. And so it got a little heated.” He tried to pull Washburn’s shirt up. When she pulled it back down, he persisted in pulling it over her head, and she let him remove it. Then Washburn took off Johnson’s shirt. She rolled on top of him and they started grinding their hips against each other. She kissed and nibbled his ear, and he kissed her neck. All of which, she testified, was consensual. But then Johnson grabbed her arm and started “getting really excited,” which began to alarm her, because she didn’t want to do anything more than make out. She told him, “Let’s just take a break….Let’s just watch the movie.” Washburn rolled off Johnson and resumed lying on her side with her head on his shoulder.