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8. Your admission to having said to Ms. Kelly, “It’s okay, I just want to make you squirt”; you said you saw some girls squirt in some pornography you had previously watched
9. Your admission to having followed Ms. Kelly into the female bathroom in Turner Hall after the incident and looking over the top of the stall and watching her while she urinated
10. Your admission to having taken Ms. Kelly’s jeans with you back to your room in Craig Hall after the incident because you wanted a souvenir
11. Your admission to having awakened in your residence hall room and becoming aware of the jeans and not initially knowing whose they were or where they had come from
12. Your admission to later remembering how you obtained the jeans and how they got to your room
13. Your admission to having thrown the jeans away later, because why would someone want to keep them
14. Detailed written account from Ms. Kerry Barrett who viewed several bloody items taken from Ms. Kelly’s room by a Missoula Police Officer; Ms. Barrett observed blood on a pillowcase, mattress pad, mattress, and “a large blood stain on one of the pairs of shorts the detective took”
15. Detailed notes taken from an interview with Ms. Nancy Jones, Ms. Kelly’s roommate; Ms. Jones had been in her bed in a deep sleep during the incident; she was awakened when she heard the door to her room slam; she later observed a male (later identified as you) bend over and pick something up (later identified as Ms. Kelly’s jeans and belt) and leave the room; Ms. Jones saw blood all over her roommate’s sheets. Ms. Jones heard sobbing in the study lounge next door; she went in and found Ms. Kelly sobbing hysterically; Ms. Kelly told her what had happened; Ms. Kelly grabbed three fingers on one hand with her other hand, and told Ms. Jones that the unidentified male at the time (later identified as you) was “stabbing her” with his fingers. Ms. Jones said she noticed later that morning the bloody sheets were gone, and that Ms. Kelly had thrown them away
16. Ms. Kelly went to the Curry Health Center two days after having been raped because of pelvic pain
17. The attending physician found superficial abrasions and bruises on both of Ms. Kelly’s inner thighs
18. The attending physician found abrasions within the “vaginal vault,” and “very tender with any palpitation”
19. The victim’s menses had not yet begun
20. The victim sought services from the Curry Health Center Student Assault Resource Center after her rape
Appropriate sanctions for such egregious behavior are:
1. Permanent expulsion from the University of Montana, effective immediately
2. No access to any University property or University-sponsored activity, effective immediately
You have the opportunity to accept or deny the charge of having violated the Student Conduct Code and/or to accept the sanctions. If you deny the charge and/or [do] not accept the sanctions, you have the right to an administrative conference with the Vice President for Student Affairs, or her designee, and a hearing before the University Court. Please indicate how you wish to proceed by signing on the appropriate line below.
Calvin Smith denied the charge and asked to appeal Dean Couture’s ruling at an administrative conference with the Vice President for Student Affairs, Teresa Branch, which was scheduled for November 7. At the conclusion of the conference, Vice President Branch concurred with Dean Couture that Smith was guilty of rape and should be expelled. According to Smith, Couture then offered him the university’s equivalent of a plea deal: If he voluntarily withdrew from the university instead of forcing the institution to expel him, nothing about the rape would appear on Smith’s record. Smith told me that he never even considered accepting the offer and explained to Couture, “I’m not going to say that I did this.” Instead, Smith appealed Branch’s ruling, as the Student Conduct Code allowed, to a higher body called the University Court. A hearing before this court was scheduled for the afternoon of November 18, 2011.
—
BY DESIGN, the UM adjudication process differs in crucial ways from the way rape cases are handled in the criminal justice system. When the administrators of a university are confronted with a rape allegation, they are likely to have two predominant goals: to determine the facts as quickly and as accurately as possible; and, if the accused student is subsequently found guilty, to protect other students by immediately banishing the rapist from the campus. Like their counterparts in the criminal justice system, university officials understand that they also have a grave responsibility to avoid punishing the innocent. But because the harshest penalty a university can impose is expulsion—which does not deprive an accused student of his liberty or saddle him with a criminal record—most universities, including the University of Montana, believe it is more important to discover the truth than to protect the rights of the accused at any cost.
Unlike the university adjudication process, the American criminal justice system routinely allows the suppression of evidence and other procedural actions to ensure that the constitutional rights of the accused aren’t violated and requires the prosecution to prove its case “beyond a reasonable doubt” to obtain a conviction. Inevitably, going to such lengths to protect the rights of the accused sometimes results in guilty parties escaping accountability. This is widely understood to be a cost of protecting sacrosanct civil rights enshrined in the U.S. Constitution. As the English jurist William Blackstone famously pronounced in the eighteenth century, “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.”
But the University of Montana, like every other American college and university, is obligated by Title IX of the Education Amendments of 1972 to protect students from sexual harassment and sexual violence. Although the Title IX legislation was intended primarily to create equal athletic opportunities for male and female students, it also required institutions of higher education to establish a comprehensive system for handling sexual-assault complaints.
Because UM’s adjudications of alleged rapists are disciplinary proceedings rather than criminal proceedings, the university is not bound by the rules of evidence that pertain in the criminal justice system and is, therefore, free to give as much weight to the rights of alleged victims as to the rights of the individuals they have accused. To prevent legalistic quibbling from obscuring evidence and, should a rapist escape punishment, potentially endangering members of the campus community, UM tries to minimize the role of lawyers in its handling of rape cases.
As Dean Couture pointed out to Calvin Smith, the Student Conduct Code gives students accused of violating the code the right to have a lawyer present during all disciplinary proceedings. But the code also dictates that “the role of legal counsel…is limited to consultation with the student only.”*2 During official proceedings, lawyers are forbidden to raise objections or even speak directly to university officials. Beyond whispering in their clients’ ears, attorneys are forced to bite their tongues.
Josh Van de Wetering, the lawyer representing Calvin Smith, was exasperated by his inability to speak up on behalf of his client during UM’s adjudication of Smith’s case. Most lawyers who represent clients in university adjudications are similarly frustrated. At 1:05 p.m. on November 18, less than two hours before Smith’s University Court hearing was scheduled to begin, Van de Wetering sent an e-mail to Dean Couture asking to postpone the hearing until December 2, in order to have more time to obtain police reports about the case.
Smith had by this time learned that three days earlier, Chief Deputy County Attorney Kirsten Pabst declined to prosecute the case. Van de Wetering believed that this information should be considered by the University Court before it arrived at a verdict, and he informed Couture that he intended to call Pabst as a witness for Smith at the hearing. Van de Wetering said he hoped to call Detective Brueckner as a witness, as well.
Couture immediately sent Van de Wetering an e-mail denying his request:
<
br /> Josh, I am perplexed as to why you waited until less than two hours until the hearing to request an extension. I was informed yesterday that Police Chief Muir had denied your request for the female detective to participate….Based on statements in your email, I think you need to be reminded that you shall not call any witnesses at the University Court hearing. Your client shall call his own witnesses and present his own case. Your participation shall be strictly limited to private consultation with your client. Your client’s appeal shall begin today at 3:00 pm….After I have presented the University’s case against your client, your client may request the Court Chair to continue the hearing on December 2. This is an educational proceeding, not a criminal one.
Van de Wetering fired back,
I am not seeking to stall the case. I am merely trying to ensure my client has a quality defense against extremely serious accusations that if confirmed will impact the rest of his life. That effort is complicated and its importance underscored by the fact that you have concluded a rape did occur, while trained investigators and prosecutors have concluded it did not, a fact I cannot leave unconsidered….
I understand what my role is, and while I find it oppressive, to think that you, with your education and experience, will be presenting the University’s case while forcing an 18-year-old kid to try to stand up against you by himself, I will abide by the rules. We will be there at 3:00, and I will ask the chair for additional time.
And please rest assured, the entire proceeding has indeed been an education.
The seven individuals on the University Court are appointed by the president of the University of Montana. The court is composed of three undergraduate students, one graduate student, two faculty members, and one staff member. At Calvin Smith’s hearing on November 18, 2011, held in the basement of Main Hall, the chair of the court was a distinguished professor from the university’s School of Business Administration; she served as the academic equivalent of a judge and ran the proceeding. Dean Charles Couture, representing the university’s interests, acted as the equivalent of a prosecutor, calling witnesses and presenting evidence against Smith.
The first person Couture called to testify was Kaitlynn Kelly, who answered questions posed by Couture and the members of the court for seventeen minutes, providing an abbreviated version of the same information she had previously conveyed in her one-on-one interviews with Couture and Detective Connie Brueckner. The court then received testimony from six witnesses who had been summoned by Couture on behalf of Kelly: Kerry Barrett, Kelly’s roommate, the roommate’s boyfriend, the coordinator of the university’s Student Advocacy Resource Center, and Kelly’s parents.
Ninety minutes into the proceeding, it was Calvin Smith’s turn to present the witnesses he’d asked to testify on his behalf. The first witness to appear was prosecutor Kirsten Pabst, supervisor of the sexual-assault division at the Missoula County Attorney’s Office.
Pabst was forty-four years old and had a commanding presence. She’d been raised by working-class parents in Havre, Montana, a windswept railroad town on the Great Northern Hi-Line, thirty miles from the Canadian border. During her childhood, she told Missoulian reporter Kathryn Haake, “when times got lean” her family sometimes lived in a converted garage without running water. In 1985 she enrolled at the University of Montana; she became a fine arts major, but she dropped out before graduating and moved to Great Falls. A single mother at the time, she was working at a restaurant when she decided to return to school to become a paralegal. She eventually got a law degree at UM, and in 1995, a week after having her second child, she went to work as a prosecutor for Cascade County. Two years later she landed a job as a deputy Missoula County attorney, and she had been employed as a prosecutor there ever since.
In 2006 Pabst was promoted to chief deputy Missoula County attorney, with responsibility for supervising the prosecution of sexual-assault cases. By 2011, when she appeared at Calvin Smith’s University Court hearing, Pabst had been married twice, given birth to four children (the youngest of whom was still a toddler), and was an expert horsewoman and an accomplished artist. With her brash demeanor and shoulder-length blond hair, she cut a distinctive profile around town.
“I was completely astounded when I realized Kirsten Pabst was appearing as a witness for Calvin,” says Kerry Barrett, recalling her reaction when Pabst showed up for Smith’s hearing. “She was in charge of the criminal case against Kelly’s rapist. And here she was at University Court defending him.” Barrett’s surprise grew when she observed Pabst interacting warmly with Smith and his parents, as if they were old friends.
Like Kerry Barrett, Dean Couture disapproved of the county prosecutor’s advocacy on Calvin Smith’s behalf. After the hearing, Couture told Kelly that Pabst’s presence was “totally out of place” and “not appropriate.” Couture frowned on Pabst’s involvement in the university’s adjudication of Smith’s case for several reasons, not least of them being that the university was required to use a very different burden of proof in determining Smith’s innocence or guilt than Pabst had used when she’d declined to file criminal charges against him.
Seven months earlier, in April 2011, the U.S. Department of Education’s Office for Civil Rights had sent a letter to colleges and universities nationwide; it became known as the “Dear Colleague Letter.” In no uncertain terms, it reminded universities of their obligation to protect students from sexual harassment and sexual violence under Title IX. To make it harder for students to rape with impunity, the Dear Colleague Letter decreed that schools must use a burden of proof known as “the preponderance of evidence standard” when adjudicating sexual-assault complaints. To find a student guilty, in other words, a school needed only to determine that, after a review of credible evidence, it was “more likely than not” that the accused individual had committed the offense. More than once during the Calvin Smith hearing, Dean Couture reminded the University Court that this is a much lower burden of proof than Pabst or any other prosecutor was obligated to use in a criminal trial—“the beyond a reasonable doubt” standard.
Kirsten Pabst testified before the University Court, in support of Smith, for forty-two minutes, more than twice as long as any other witness, including Kaitlynn Kelly. Pabst used the opportunity to explain her rationale for declining to prosecute Smith—and therefore why, in her opinion, it would be a mistake for the University Court to find him guilty of rape. Pabst emphasized that when she’d discussed the case with Detective Connie Brueckner, Brueckner had told her “there wasn’t even probable cause” to file criminal charges against Smith. According to Pabst, she then conducted an independent review of the evidence Brueckner had gathered, “and we both came to the same conclusion: that it wasn’t prosecutable.” Pabst explained that in Montana, prosecutors of sex crimes are required not only to prove that the victim didn’t consent but “to prove that the defendant reasonably knew that she didn’t consent.”
“We get a lot of alcohol- and drug-related cases where there is sexual contact—date rape–type cases,” Pabst continued. “And they are really, really hard cases for us….But this one was different. This one was a little bit more clean-cut, in that, according to all of the witnesses, Mr. Smith and the alleged victim” agreed to have sex. “Her friends, and his friends, both were trying to get them—pardon me for sounding crude—were trying to get them laid….And the victim in fact told the detective that that was her plan: to go back to her room and have sex. So we don’t have the whole really blurry consent issue that we normally do.”
However, when questioned by a member of the court, Pabst conceded, “Of course, somebody can withdraw consent. But it’s unusual to have such a really clear picture of consent going into it, and all of the witnesses are in agreement on that. So that was a really big factor. The other thing was that everyone agreed that Mr. Smith did not finish the sex act. And that he stopped at some point. Here it gets a little bit more blurry, but he was requested to stop at some point where it became uncomfortable fo
r her, and he did.”
A few minutes later Pabst added, “Once there was an affirmative verbal agreement to have sex, so consent was given, she’s really fuzzy on whether or not she verbally withdrew that consent. So it’s not fair for us as prosecutors to expect a suspect to read someone’s mind when they’ve verbally given consent.”
Although Kirsten Pabst took considerable time from her busy schedule to appear before the University Court on behalf of Calvin Smith, she never bothered to speak to Kaitlynn Kelly, in violation of a Montana law*3 that requires prosecutors to consult with rape victims. Nor, apparently, did Pabst take the time to listen to the recording of Detective Brueckner’s interview with Kelly, because a number of Pabst’s assertions about what Kelly did or didn’t say to Brueckner are just plain wrong.
For example, when Pabst testified that Smith “was requested to stop at some point where it became uncomfortable for her, and he did,” Pabst failed to mention that the only reason Smith finally stopped, according to Kelly’s testimony, was that she managed to shove him away and flee from the room, after telling him numerous times to cease penetrating her with his fingers and forcing his penis into her mouth.
In her testimony to both Detective Brueckner and Dean Couture, Kaitlynn Kelly was the opposite of “fuzzy” on whether or not she verbally withdrew consent: Kelly adamantly and consistently stated that she said “no” and “stop” many times while Smith was penetrating her. Kelly also clearly asserted that she verbally withdrew her consent to have sex when she initially entered her dorm room and saw that her roommate and her roommate’s boyfriend were present.
When Calvin Smith said, “It’s okay. We’ll be quiet,” in reply to her initial withdrawal of consent, Kelly can’t recall if she reiterated that she wouldn’t engage in sex while other people were in the room. But she is certain that she didn’t say anything that could have been interpreted as an affirmation of consent after she withdrew it upon entering the room. And the University of Montana’s policy concerning rape and other sexual misconduct clearly states that consent cannot be inferred “from silence, past consent, or consent to a different form of sexual activity.”