Missoula: Rape and the Justice System in a College Town

  I respectfully request that you ask yourself why would [Jordan Johnson] risk his entire life and the lives of his family by committing such a violent act when he has never done anything even remotely close to this and well-knowing that the accuser’s male roommate was only a matter of a few feet outside her bedroom door.

  During the meeting, Paoli again argued that Couture’s bias, his failure to adhere to the published Student Conduct Code, “the irregularity of this process,” and the “unadopted burden of proof” the university was imposing on Jordan Johnson were so egregious that the charge against his client should be dismissed. But Vice President Branch was not persuaded. At the conclusion of the meeting, she denied Johnson’s appeal. He immediately indicated that he would appeal to the next level: the University Court.

  A hearing before the court was scheduled for May 10, but Paoli was determined to halt the case before the hearing convened. He arranged for Jordan Johnson’s parents to have an audience with University of Montana President Royce Engstrom, and then, on May 4, he hand-delivered a confidential letter to Engstrom claiming that the university’s adjudication of Johnson had been “undermined and tainted by serious failures of due process and fundamental fairness.” Paoli asked Engstrom to remove Dean Charles Couture and counsel David Aronofsky from the case, take control of it himself, and start the process over from scratch “with a truly impartial representative.”

  On May 8, when David Paoli received a letter from President Engstrom denying this highly irregular request, Paoli, on behalf of Jordan Johnson, filed a motion in United States District Court for the District of Montana for a temporary restraining order to prohibit the university from holding the University Court hearing. In the event that the restraining order was rejected, on May 9 Paoli also submitted a request to the university that two members of the University Court be barred from the hearing on the grounds that they were biased against his client.

  On May 10, Judge Dana Christensen denied the restraining order, and the University Court hearing took place later that same day. Although the court members blackballed by Paoli had been replaced by two different individuals, as Paoli had demanded, the court found Jordan Johnson guilty of raping Cecilia Washburn, by a vote of five to two. All seven members then voted unanimously to expel Johnson from the university.

  On June 6, after reviewing this decision, President Engstrom found that the court’s conclusion was “reasonable…based on the testimony and evidence available.” Additionally, Engstrom wrote to Jordan Johnson,

  I do not find any procedural errors that served to deny a fair hearing. Both sides had the opportunity to present their respective cases and question all witnesses. The Court was constituted correctly, it conducted its business in accordance with the Student Conduct Code and it did so in a timely manner. I do not find merit in the procedural objections raised in Mr. Paoli’s letters.

  Consequently, I am making the determination that you did violate the Student Conduct Code by committing sexual intercourse without consent. Furthermore, I uphold the Court’s conclusion that you be expelled from The University of Montana….

  The review by the President constitutes the final step at the University level. I consider the matter closed. I am sorry that your career at the University must come to an end.

  Johnson still had one last opportunity to avoid expulsion, however. He could appeal his case beyond the university, by asking for an administrative review by the Montana commissioner of higher education and the Board of Regents. On June 13, Paoli requested such a review. Commissioner Clayton Christian seemingly ruled in Jordan Johnson’s favor, and Johnson was not expelled. I say “seemingly” because the commissioner’s office has refused to disclose the outcome of the review, or even acknowledge that such a review occurred, contending that it is barred from doing so by the federal Family Educational Rights and Privacy Act (FERPA) and Montana statute 20-25-515, both of which address issues pertaining to the privacy of student records.*2

  When Jordan Johnson appealed to the commissioner’s office, the university’s case against him vanished into the ether. It was as if the University Court proceedings never happened. Because the criminal case against him was still moving forward, Johnson wasn’t allowed to train with the football team in the summer of 2012, or play for the Grizzlies that fall, but he apparently remained enrolled as a student.

  Public documents released in 2013 shed some light on why Johnson was not expelled. The most revealing is a thirty-one-page letter sent to University of Montana president Royce Engstrom by the U.S. Department of Justice and the U.S. Department of Education. Dated May 9, 2013, the letter enumerated the findings of the government’s year-long investigation into UM’s handling of student sexual-assault allegations, and two of its paragraphs summarized Jordan Johnson’s appeal to Commissioner Clayton Christian. Although neither Johnson nor Washburn was mentioned by name, there was no mistaking the case under discussion.

  —

  CLAYTON CHRISTIAN, who was appointed commissioner of higher education in December 2011 by the Montana Board of Regents, is neither an educator nor a lawyer. Christian has a bachelor’s degree in finance and management from the University of Montana and owns a title company. He is a successful, highly respected Missoula businessman. Prior to his appointment, a doctorate was one of the prerequisites for the job, but the regents removed that requirement just before selecting him because they believed the commissioner of higher education “should be a businessperson like Christian,” according to a public statement made by the regents’ vice chairman.

  Despite the wall of secrecy erected by the commissioner’s office around the Jordan Johnson case, public information released from other sources indicates that when Johnson appealed his expulsion to Commissioner Christian, David Paoli apparently persuaded Christian that the University Court incorrectly used “a preponderance of the evidence” as the burden of proof in finding Johnson guilty of raping Washburn, instead of holding to the more exacting “clear and convincing evidence” standard. Blatantly disregarding the Department of Education’s Dear Colleague Letter, which explicitly stated that “preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence,” Commissioner Christian vacated the University Court’s finding of guilt and sent the case back to the University of Montana to be readjudicated, this time using “clear and convincing evidence” as the burden of proof.

  During its reappraisal of the Jordan Johnson case, the university hired an independent consultant to conduct an impartial reinvestigation of Cecilia Washburn’s allegation. At the conclusion of the consultant’s inquiry, the consultant determined that Johnson’s testimony wasn’t credible and that there was indeed clear and convincing evidence that Johnson raped Washburn.

  University of Montana Dean of Students Rhondie Voorhees, who replaced Dean Charles Couture when he retired, in July 2012, rejected the independent consultant’s determination that Johnson was guilty, however. According to the government’s 2013 letter to President Engstrom, Dean Voorhees

  found both the complainant [Cecilia Washburn] and accused student [Jordan Johnson] to be credible and expressed a belief that this was “a case of differing perceptions and interpretations of the events in question.” However other parts of [the dean’s] analysis questioned [Washburn’s] credibility. For example, some of [Washburn’s] statements began with “I think” or “I don’t think,” and [Dean Voorhees] believed that the use of the word “think” denoted a “hesitant and equivocal response.” The [dean] concluded that there was not clear and convincing evidence to find that [Johnson] committed sexual misconduct.

  The upshot was that Dean Rhondie Voorhees pronounced Jordan Johnson not guilty of raping Cecilia Washburn.

  In the letter to Engstrom cited above, the Departments of Justice and Education rebuked the university for using “the ‘clear and convincing evidence’ standard in contravention of the Dear Colleague Letter’s directive to use the ‘preponderance of the ev
idence standard.’ ” The feds also said that Voorhees’s unilateral acquittal of Jordan Johnson “did not result in an equitable resolution” of Cecilia Washburn’s complaint. But the government’s findings came too late to do Washburn any good.

  After Dean Charles Couture determined, in March 2012, that Jordan Johnson was guilty of raping Washburn, Johnson was given four opportunities to appeal Couture’s decision. When Johnson finally prevailed on his fourth try, and was declared not guilty by Dean Voorhees, Voorhees had the final say in the matter. The university’s adjudication process allowed Cecilia Washburn no opportunity to appeal Voorhees’s ruling.

  Thus, instead of expelling Jordan Johnson, the University of Montana invited him to return as the Grizzlies’ quarterback, and when he did, most of Missoula rejoiced.

  * * *

  *1 During his freshman year, Johnson had been disciplined by the university for becoming drunk and disorderly at a party.

  *2 In February 2014, I filed a petition in Montana district court requesting access to public records concerning Commissioner Christian’s actions, citing Article II of the Constitution of the State of Montana, which states that “no person shall be deprived of the right to examine documents…of all public bodies or agencies of state government and its subdivisions.” In September 2014, District Court Judge Kathy Seeley ruled that “FERPA does not preclude release of the records in the circumstances presented in this case,” nor does Montana statute 20-25-515. Judge Seeley ordered the commissioner’s office to provide me with the records I requested, but in October 2014, Commissioner Christian filed a motion with the Montana Supreme Court appealing Seeley’s decision. The court had not yet issued a decision on the appeal by the time this book was submitted for publication.

  PART FOUR

  Scales of Justice

  It is morally impossible to remain neutral in this conflict. The bystander is forced to take sides.

  It is very tempting to take the side of the perpetrator. All the perpetrator asks is that the bystander do nothing. He appeals to the universal desire to see, hear, and speak no evil. The victim, on the contrary, asks the bystander to share the burden of pain. The victim demands action, engagement, and remembering….

  In order to escape accountability for his crimes, the perpetrator does everything in his power to promote forgetting. Secrecy and silence are the perpetrator’s first line of defense. If secrecy fails, the perpetrator attacks the credibility of his victim. If he cannot silence her absolutely, he tries to make sure that no one listens. To this end, he marshals an impressive array of arguments, from the most blatant denial to the most sophisticated and elegant rationalization. After every atrocity one can expect to hear the same predictable apologies: it never happened; the victim lies; the victim exaggerates; the victim brought it upon herself; and in any case it is time to forget the past and move on. The more powerful the perpetrator, the greater is his prerogative to name and define reality, and the more completely his arguments prevail.

  JUDITH LEWIS HERMAN

  Trauma and Recovery

  CHAPTER SEVENTEEN

  After Beau Donaldson agreed to plead guilty to the charge that he raped Allison Huguet, a hearing to determine his sentence was scheduled for October 13, 2012, but it was postponed until December 19, and then postponed again until January 11, 2013. This tried the patience of Huguet and her family. The additional delay wasn’t necessarily a bad thing, however, because it gave Missoula County Attorney Fred Van Valkenburg more time to prepare, and as the scheduled day approached, it became disconcertingly clear that he was going to need every hour he could get.

  Late in the afternoon on January 9, when Van Valkenburg met with Allison and Kevin Huguet to tell them what to expect at the hearing, which was then less than two days away, he confessed that he was just starting to focus on what he actually intended to say. When Allison asked him if Hillary McLaughlin was all set to testify, Van Valkenburg said McLaughlin had gotten cold feet and wasn’t sure she could go through with it. This was especially discouraging news. McLaughlin’s account of being attacked by Donaldson in 2008 was a crucial component of the prosecution’s argument that he was a sexual predator who posed a genuine threat to the community and, therefore, needed to be incarcerated for a long time.

  McLaughlin had first described the attack to Detective Guy Baker in January 2012. Then she didn’t hear anything more from the Missoula police or prosecutors until the beginning of December, when Baker called to ask if McLaughlin would testify at the sentencing hearing, which at the time was expected to be held on December 19. “He told me how much it would mean to Allison if I testified,” McLaughlin remembers. “But I didn’t know if I wanted to step back into it, so I asked, ‘Can I have a week to think about it?’ Looking back, I know that was very selfish of me, but I was worried about stirring up all the anxiety I felt from Beau trying to rape me.”

  A week later, when Detective Baker called her back, Hillary McLaughlin says, “I told him, ‘I’m sorry, but I can’t do it. I just can’t put myself in that situation right now.’ He was like, ‘Okay, if that’s what you want, I will respect your decision.’ I got off the phone and instantly start crying. I told my husband, ‘I did the wrong thing!’ So I call back Detective Baker probably five minutes later, and he doesn’t answer. I leave him a voice mail asking, ‘Can I have three more days to think about it? Please, just give me the weekend.’ ” After exhaustively considering the matter over the next few days, McLaughlin told Baker that she would testify.

  “But then the hearing got switched to January 11,” McLaughlin says, “and I had more time to think about how hard it was going to be to say everything in court in front of all those people.” A few days before the hearing, McLaughlin changed her mind yet again and told Detective Baker she was simply too frightened to go through with it.

  —

  THE MISSOULA COUNTY Courthouse and its grounds occupy an entire downtown block. A handsome, stately building constructed in 1910 from quarried sandstone blocks, it’s crowned by a domed clock tower visible from miles away. As Allison Huguet and her family walked from their car to the courthouse doors shortly before 9:00 on the morning of January 11, 2013, an overnight blizzard had abated, but the storm had left five inches of fresh snow on the ground and the temperature was seventeen degrees Fahrenheit. Up on the third floor, when Judge Karen Townsend said, “Please be seated everybody,” the large courtroom was overflowing with Missoulians who’d come to learn Beau Donaldson’s fate. His supporters, including family members and Griz teammates, filled the seats in the eastern half of the room; most of Allison Huguet’s supporters sat on the other side. Everyone was in uncomfortably close proximity. The air was stale, and the tension in the courtroom was palpable.

  Donaldson, wearing a tie and black slacks, but no jacket, sat with his lawyers, Milt Datsopoulos and Peter Lacny, at the defending counsel’s table. Donaldson’s broad back and shoulders strained the seams of a freshly pressed shirt. Fred Van Valkenburg and Shaun Donovan sat at the prosecuting counsel’s table, representing the state, which would present its witnesses before any witnesses for the defense were called.

  Van Valkenburg asked Kevin Huguet to take the stand, and Kevin got the hearing off to a dramatic start. Unable to contain his rage, Kevin began by saying, “I’m obviously pissed off.” Then he pointed at Donaldson and declared, “That kid right there is a no-good rapist piece of shit that raped my daughter, and I hope he rots in hell, frankly.” Almost everyone in the packed courtroom was taken aback by the vehemence of the outburst. “I know he’s got a bunch of friends and family here,” Kevin continued, “but I don’t really care. What you did to my daughter was wrong.”

  Milt Datsopoulos jumped to his feet and interrupted Kevin Huguet to object, “Your Honor, this is a courtroom. Certain remarks are—”

  “I think I have some latitude on the plaintiff’s part of this,” Kevin said, cutting Datsopoulos off.

  “So, Mr. Huguet,” Judge Townsend interjected, “I am g
oing to ask you—”

  “Those are the only cuss words,” Kevin promised.

  “All right. No more,” Townsend warned.

  Resuming his testimony, Kevin said, “The rapist has no idea the pain and hurt he has caused our family….This rapist decided to attack and rape my daughter while she was sleeping. How long did this perverted monster look at my defenseless daughter before he decided to act out the rape of a longtime friend? After he raped her, she had to sneak out of the house, running down the street calling for help….Then she turned around and realized the rapist was chasing her.”

  Kevin Huguet asked Judge Townsend if she, as a parent, could imagine “anything more scary” than having the man who has just “raped your daughter chasing her down a street.” Furthermore, Kevin said, even after Beau Donaldson confessed to the police on tape that he raped Allison, he told his friends and family that he’d been falsely accused, and he encouraged them to slander Allison: “They’ve made it impossible for my daughter, who was born and raised here, to go out like a normal twenty-three-year-old and enjoy herself. Instead, it’s verbal aggression and intimidation. Does this sound like the rapist has told the truth or really taken responsibility?” Kevin pointed out that Donaldson not only lied to his friends and family about what he did to Allison, he also told both of the psychologists who performed presentencing psychosexual evaluations of him that the sex they had was consensual, not an act of rape.

  When Allison Huguet had a chance encounter with Beau Donaldson at the Mo Club, fourteen months after he assaulted her while she slept, Kevin said, “This rapist laughed in my daughter’s face….Does this sound like someone who regrets what he did?…He felt entitled to do anything he wanted to any woman….My daughter trusted him. She knew him since first grade. They were friends, yet he could still rape her. For some reason, some people feel sorry for this rapist….For the people testifying about what a good guy he is,…you have no idea of the tears and the pain and the hurt that was caused by this rapist, and the potential years of counseling and healing my daughter has in front of her….