Then Brueckner pointed out that the case was going to be tricky to prosecute because both Kelly and Calvin Smith were drunk. “I’m sorry he didn’t hear you [when you said no],” Brueckner said. “But the good thing coming of this is, you’re not stuffing it someplace where it is going to come back later in your life….You’ve got a good, supportive family. And there are great services on campus….And you can move past this, I’m sure. It’s much better to do that now than try to deal with it five years from now.”
“I just don’t want him to do it to anybody else,” Kaitlynn Kelly wept. Just twenty-one minutes into the interview, before Detective Brueckner had even talked to her assailant, it seemed to Kelly as though Brueckner had already decided not to charge Calvin Smith with any crime.
“We will talk to him, absolutely,” Brueckner assured Kelly. But then she added, “I can’t guarantee you this is going to turn into some big thing where he’s going to go to jail….Some people come in here and they’re like, ‘I want him in jail!’…And it’s not easy to just throw people in jail when it’s a ‘he said, she said’ scenario. But we will bring him in, and it will be very clear to him that [this] kind of behavior is unacceptable. And that he needs to be certain when he’s engaging in anything sexual with anybody, that that person is okay with it.”
Detective Brueckner told Kelly that her safety and well-being were Brueckner’s primary concern, followed by making Calvin Smith understand that what he did wasn’t acceptable. Putting him in jail, Brueckner said, was much less important: “To me that is sort of secondary to everything else that’s going on here. Do you agree with that?”
Kelly did not agree if it meant letting Smith off with nothing more than a lecture on accountability. “I don’t know how,” she protested to Brueckner, “he couldn’t hear me saying, ‘Stop!,’ because, like, his face was right next to mine.”
“I’m sure he did,” Brueckner replied, but then she suggested that Smith, in his inebriated condition, might not have understood that Kelly was withdrawing the consent she’d given earlier.
Kaitlynn Kelly objected that Calvin Smith must have understood. “I don’t think he cared,” she said.
“And that’s the problem with these kinds of cases,” Detective Brueckner argued. “You can’t give consent when you are so doped up, or high, or drunk that you have no idea….It is pretty simple. But it gets clouded when everyone is intoxicated.” As the interview drew to a close, Brueckner told Kelly, “Tuesday I’ll give him a call and have him come down here and get his statement. Like I said, these aren’t easy cases. But I want him to go through this, and make it clear that, no matter what he says, or what you said or did, you were too drunk to consent. And it sounds to me…that you never even consented. So it’s not even an issue….Are you going home this weekend?”
“No,” Kelly replied. “If I go home, I will not come back….My mom wants me to drop out and come home. My mom is devastated.”
“You seem like a strong girl. I think you can hang in there and get through it….As horrible as this is, as hard as it is right now, what you’re doing…will have a positive effect on people….And certainly Calvin is going to know that this is completely unacceptable….And you know what? His friends he tells that he’s going to be coming down to police? Well, they are going to know, too,…that this is not okay. One bad thing like this can actually have a good and healthy ripple effect on people, and hopefully prevent this kind of thing from happening to others.”
—
DETECTIVE BRUECKNER PHONED Calvin Smith and left a voice-mail message asking him to call her back because she “had a few questions” she wanted to ask him. In August 2014, when Smith met with me to talk about his encounter with Kaitlynn Kelly, he said he wasn’t concerned about the voice mail. He’d been so drunk during his hookup with Kaitlynn Kelly ten days earlier that he didn’t remember much about it. But he was certain the sex had been consensual, and he was pretty sure Kelly had enjoyed it. When Brueckner called, Smith told me, “I assumed it was about the pants.”
According to Smith, he’d consumed alcohol only once when he was in high school, because, as a serious athlete, he’d been careful to avoid things that would have a negative effect on his performance. But after enrolling at the University of Montana, in August 2011, he decided, “Well, I might as well do the drinking thing, now that I’m out of sports.” During his first month in Missoula, Smith said, he got drunk “probably four or five times”—pretty much every weekend. Then, on September 30—the night he met Kaitlynn Kelly—Smith went big. He got totally shit-faced. “Never had that much to drink in my life,” he said. “I remember being pretty drunk and not being able to walk too straight. I don’t know how I didn’t throw up.”
As Calvin Smith recalled that night, around 9:00 he went to a friend’s off-campus house, where he began playing beer pong. He estimates he had ten to twelve beers before returning to his dormitory, shortly after midnight, with his friend Ralph Richards, whereupon Smith had two shots of rum with some guys who lived across the hall. At that point Smith and Richards decided to leave the dorm and hang out on the plaza outside nearby Jesse Hall, Smith said, “because there is always things happening in front of there, and people to talk to, and fun stuff happening.”
After bumping into Kaitlynn Kelly and agreeing to have sex with her, according to Smith, “she basically carried me up to her room. Because I could barely walk myself at that point. I was kind of leaning on her….So we go up to her room and lay down on her bed. At that point things got kind of…” Smith paused for a moment, then reiterated that he was so hammered he can’t recall much about what happened next.
On October 14, Smith went to the police station to be interviewed by Detective Brueckner. What Smith told her about how he ended up in Kelly’s dormitory closely matches what Kelly told Brueckner. Concerning what happened after they entered her room, however, Smith’s account and Kelly’s account are difficult to reconcile. According to a page-and-a-half summary of Brueckner’s interview with Smith that she submitted with her case report,
Smith described a very open discussion with the girl about having sex….Smith’s impression of the girl was that she was not intoxicated….
He described her room as dark and recalled her bed was pushed up against the wall. Smith did not think anyone else was in the room. He remembered making out with the girl on her bed. He stated they both took their pants off. Smith clarified that he “might” have taken her pants off for her. Smith stated the female was lying down on the bed and he was at her feet.
He stated he used his fingers to penetrate her vagina. He did not believe he penetrated her anus. Smith stated the female was not saying anything but was moaning. He stated it was his impression she was consenting to his sexual contact. Smith reported the female gave him oral sex at one point. He denied ejaculating but admitted to having an erection. Smith stated he never held her down or prevented her from leaving. He recalled she “moved by herself.”
Smith stated he and the female “made out” some more after which she asked him to leave. He recalled asking her if she was sure, to which she replied yes. He recalled getting up and leaving her dorm. Smith did not initially recall going into the bathroom in the dormitory. He later stated he remembers “as if in a dream” that he was in the girls’ bathroom. He clarified that it was a memory, but he remembered it as a dream and did not think it had really happened. Smith recalled following the girl to the bathroom and then returning to her bedroom. When I informed Smith that the girl had reported she was crying in the bathroom, Smith became visibly distraught and tearful. He began to cry and stated he was very sorry she was upset and never meant to hurt her or make her sad. He seemed genuine in his emotions. It was clear from speaking to Smith that he was surprised at the accusations and disturbed that her experience was that their contact was non-consensual….Smith later stated he may have attempted to have sexual intercourse with the girl at which point he recalled she asked him to leave. He described this as a “
turning point” in their encounter. Smith confirmed that he left when she asked.
Smith did not initially report taking the girl’s jeans. When confronted about the clothing, Smith stated that he did take the jeans when he left her room. He stated he was embarrassed by his actions. He explained that he had never had sex before and took the jeans as proof to his friends. He recalled swinging the jeans around in his dorm room after he returned from Turner Hall. Smith said he disposed of her jeans the next day.
Smith did not recall having any blood on his hands when he left the girl’s dorm room. He stated he later discovered some on his hands and jeans. He felt it was perhaps due to her being on her menstrual cycle. Smith stated that when he left Turner Hall he walked to Noon’s [a twenty-four-hour gas station and convenience store nine blocks away] and then returned to his dorm room.
Smith appeared extremely upset at the end of the interview. He was very concerned about the consequences of the investigation. He repeatedly expressed how sorry he was and a desire to let the girl know he never meant any harm. Smith realized he had made mistakes. He stated he should not have been drinking nor should he have been sexual with someone else who may have been drinking. Smith understood that taking the girl’s jeans was wrong.
During his interview with Detective Brueckner, Calvin Smith told me, she repeatedly asked if Kelly ever said “no or anything like that. And I was like, ‘No….I would have stopped if she said no.’ I did stop, at the end, when she said she didn’t want to anymore.” Smith said Brueckner and another detective “kept asking me weird questions, like if I had any blood on me or anything….But it wasn’t enough to, like, worry me or anything. And then, basically at the end of it, they were like, ‘She is saying that you raped her.’ ”*5 That was the point, Smith recalled, when “I started crying and freaking out.”
Smith’s uncontrollable sobbing prompted Brueckner to turn off her tape recorder and inquire, off the record, if there was any risk that he might go home and commit suicide. When he assured her that he had no intention of killing himself, according to Smith, she urged him not to worry about being prosecuted. “We still have a lot of investigating to do,” she told him.
Over the next few weeks, Detective Brueckner interviewed Ralph Richards, Greg Witt, Smith’s roommate, and a number of other witnesses. And then in early November, Brueckner phoned Kaitlynn Kelly to update her about the status of the case. “Basically,” Kelly said, “she told me they didn’t have enough evidence to charge Calvin. She said there was no DNA found on anything I gave them….She made a big deal of the fact that I’d thrown my sheets away, as if that was the only evidence they had. She didn’t say anything about my bloody clothes or the bloodstained mattress….She didn’t say anything about the forensics exam….Nothing about the video of him walking out with my goddamn pants. She just shut me down. That was that. I got the shitty end of the stick.”
After a victim has reported a crime to the police, many people believe that the decision whether or not to charge the suspect with a crime, and then prosecute the suspect, is the prerogative of the victim. News media often contribute to this misconception in stories about rape victims by reporting that a victim “declined to press charges.” In fact, the criminal justice system gives victims no direct say in the matter. It’s the police, for the most part, who decide whether a suspect should be arrested, and prosecutors who ultimately determine whether a conviction should be pursued.
To make an arrest and prosecute an individual in criminal court, the police and the prosecutor must possess enough evidence to lead a reasonable person to believe that the charge is probably true. This fundamental legal standard is commonly referred to as “probable cause.” Brueckner’s announcement that Calvin Smith would not be prosecuted because of a lack of probable cause was, and remains, hard to fathom. It would have been a challenging case to present to a jury, and it might have ended with Smith being acquitted. But rapists have been charged, prosecuted, tried, and legitimately convicted with much less evidence than the Missoula Police Department and the Missoula County attorney had at their disposal for assembling a case against Smith.
* * *
*1 pseudonym
*2 pseudonym
*3 pseudonym
*4 pseudonym
*5 In Montana, the legal term for rape is “sexual intercourse without consent.” Sexual intercourse is defined as “penetration of the vulva, anus, or mouth by the penis of another person, penetration of the vulva or anus…by a body member of another person, or penetration of the vulva or anus…by a foreign instrument or object…to knowingly or purposely…cause bodily injury or humiliate, harass, or degrade; or…arouse or gratify the sexual response or desire of either party….[A]ny penetration, however slight, is sufficient.”
CHAPTER EIGHT
It was difficult for Kaitlynn Kelly to summon the courage to tell her mother and father that she’d been raped. “It was bad—probably the most pain I’ve ever put my parents through,” she told me. Kelly’s father was furious when he learned that the police had punted her case and no charges would be filed. He and Kaitlynn went to the Missoula Police Department to request a copy of her case report, she said, but the police refused to show them anything. “They just jerked us around….My dad was livid.”
Fortunately for Kaitlynn Kelly, she had reported the rape to the University of Montana in addition to the Missoula police, and the UM dean of students, Charles Couture, took her case seriously. On October 20, 2011, shortly after he met with Kelly, Dean Couture sent Calvin Smith a letter notifying him that
I have initiated an investigation into the allegation that you have violated Section V.A. 18 of the University of Montana Student Conduct Code. Section V.A. 18 prohibits rape. Reportedly, on October 1, 2011, you raped Kaitlynn Kelly, in her room in Turner Hall.
The fact that an investigation is underway should not be interpreted in any way as an indication my decision about the allegation has been reached, since the purpose of my investigation is in fact to decide whether the allegation is accurate.
I have scheduled Wednesday, October 26, 2011, to meet with you at 10:00 A.M., in University (Main) Hall 022, to discuss the allegation and Student Conduct Code rules of procedure. You have the right to have a person of choice, including legal counsel, present throughout any and all of the proceedings….Failure to meet with me would be a serious violation of the Student Conduct Code.
Upon the conclusion of my investigation, if I have found sufficient evidence that you violated the Student Conduct Code as alleged, I intend to seek your immediate expulsion from the University….In the interim, you are to have no contact of any kind with Ms. Kaitlynn Kelly, including third party.
Calvin Smith showed up for his October 26 meeting with Dean Couture alone. Because he hoped to extricate himself from the predicament without having to tell his parents about it, paying for a lawyer was out of the question. Smith had intended to bring his friend Ralph Richards along for support, but Richards was an important witness, and Couture wanted to interview him later, without Smith present. “So I went and talked to [Couture] by myself,” Smith told me. “He was like, ‘All right, I want to hear your side of the story.’ ”
Smith was adamant that Kaitlynn Kelly had consented to the sex they’d engaged in. Throughout their meeting, however, Dean Couture challenged Smith’s assertions, working from what Kelly had already told him. Couture, Smith said, “just kept going on and on about how I needed to tell the truth, and it would just be faster if I told the truth. And then at the very end, he was like, ‘Yeah, you’re guilty….Yup, yeah, you’re going to get expelled.’ ”
For a significant part of this encounter with Dean Couture, Calvin Smith blubbered like a child, just as he had cried at the conclusion of his interview with Detective Brueckner. Smith repeatedly insisted that he had not raped Kaitlynn Kelly and tearfully begged Couture not to expel him. Afterward, realizing he was in way over his head, Smith confessed to his parents that he was in serious trouble.
When Calvin’s mother, Mary Smith,*1 learned what was going on, she told me, “I seriously was in disbelief…I don’t know how this could have happened. Especially with him….He does not have a mean bone in his body.” Mary and her husband retained a highly recommended Missoula attorney, Josh Van de Wetering, to represent Calvin for the remainder of the university’s adjudication of his case.
On November 2, 2011, after interviewing Calvin Smith, Kaitlynn Kelly, and other witnesses, Dean Charles Couture sent Smith a letter that stated,
Thank you for meeting with me recently to discuss the allegation that you violated The University of Montana Student Conduct Code. I have found sufficient evidence to support the allegation that you violated Section V.A. 18, by having raped Ms. Kaitlynn Kelly….My finding and recommended sanctions are based, in part, on the following evidence:
1. Detailed written account from the rape victim, Ms. Kelly, in which she stated that she and you went to her residence hall room to engage in voluntary sex; when she got there she saw that her roommate and her boyfriend were present and asleep, at which time she said “no” to sex because of their presence; she got into bed with you and she went to sleep, only to be awakened by you “repeatedly and violently penetrating her vagina with three fingers”; despite the victim telling you, “stop, no” multiple times, you continued to rape her; later you inserted your fingers into the victim’s anus “with the same force and motion” as you continued to rape her
2. Your admission to having consumed 10 to 12 beers during an alcohol drinking game called beer pong prior to the incident
3. Your admission to having consumed at least two shots of rum, in addition to the beer, prior to the incident
4. Your admission to having been “really, really drunk” during the incident
5. Your admission that you really didn’t remember very much about the incident until sometime later