As a criminal defense attorney and a longtime feminist, I am startled at the current social climate against young men accused of sex assaults. In light of all the negative press surrounding the Missoula County Attorney's Office, the public outcry to prosecute more campus sex assault cases and the biased journalism in town, people have forgotten about the Constitution and the presumption of innocence. Our justice system is designed to protect the accused from rumor, speculation and mob mentality. Victim's "rights" do not trump the rights of the accused.
Somehow in sex assault cases, there appears to be a presumption of guilt. When a woman accuses a man of sexual assault, she is automatically believed and damn anyone who questions her. Every effort to defend the accusation is portrayed as victim blaming. Taxpayer dollars are being spent to fly in out-of-state so-called "experts" to explain how rape victims act that defies common sense. Have we forgotten our history of false rape accusations? The Scottsboro boys? The Tawana Brawley case? Brian Banks? Conor Oberst? The Duke lacrosse team?
Timothy Schwartz was accused of sexual assault and suffered 15 months of his own private hell. Warehoused in our local jail for five months, his mom drove six hours to and from Bozeman every Sunday to spend 30 minutes with him. When he was finally released on bond, he was required to wear a GPS bracelet, a Scram bracelet, go to drug treatment, submit to random urine tests and wear a drug patch on his arm—all to the tune of about $1,000 a month, for the privilege of not being incarcerated. Meanwhile, the accuser, Jane Doe, had moved to California.
Accepted protocol invokes the rape shield laws, so Jane Doe is afforded anonymity forever while Tim Schwartz is just a Google search away from being a known rapist. Even now that Tim was found not guilty, Jane Doe's anonymity remains protected.
Jane Doe surrendered her personal responsibility with the hope the Missoula County Attorney's Office would champion her cause. Despite Jon Krakuaer's book lamenting the failure to prosecute, the Missoula County Attorney's Office did prosecute this case, three times.
Our prosecutors should not defend or represent victims of crimes. Prosecutors are supposed to represent all of us and make discretionary decisions on how to wield their power to make our communities safer. In this case, the prosecutorial team became so personally invested, that when Tim was found not guilty they criticized the jury for their decision. Like a teenage cyberbully, the unprofessional and knee jerk response by the prosecutorial team was to blame the jury. We used to be concerned about jury nullification; now we should be worried about jury vilification.
Two hundred people were accommodated to attend the "rally" for Jon Krakuaer and his new book, making the front page of the Missoulian. Where were those 200 people at an actual trial of a campus rape case? Why does the Missoulian show up the last day for closing arguments?
The Independent printed a cover story titled "The Trials of Jane Doe" (June 5, 2015). In the article, Dan Brooks quoted the lead prosecutor, Jane Doe, the victim's advocate/attorney and the Missoula County Attorney. Not once did he speak with either defense attorney, Tim, his mother, stepfather or sister who sat in the courtroom every day. Brooks wrote when the verdict was read, "Kauffman (the defense attorney) cried."
What motivated Brooks to add the fiction that Kauffman cried? What makes Kauffman cry is the destruction of our presumption of innocence, the mass hysteria over campus sex assaults, the adulation of celebrity over reality and the one-sided reporting by the media. Brooks gave no attention to Tim Schwartz, who had been exonerated of rape. It appears the journalist was more concerned with writing an article that fulfilled his preconceived notions about the victimization of women on college campuses. The reason is that the media has a narrative and if the verdict does not fit into their bias, it is simply ignored. Some call it Cat logic. If you don't look at it, it doesn't exist.
The media plays a vital role in our democracy, and if we cannot depend on journalistic ethics, the nation is in trouble.
The undisputed facts are Jane Doe had sex with Tim and they spent the night together. When Jane Doe woke up in the morning, Tim got out of her bed and began cleaning up from the night before. While he cleaned up the dorm room, Jane Doe received a text from her roommate (sleeping 43 inches away from Jane Doe the entire night) wondering what was up. The roommate texts: "What what in the butt." Jane Doe replies: "Hell No! He isn't that attractive but he is pretty good in bed lol but he needs to leave."
When Tim finally gets the hint, he leaves Jane Doe's room and the dorm floor girls flock around Jane Doe making fun of her hickeys and teasing her about the guy she spent the night with. Jane Doe starts to feel like the sex wasn't what she wanted and goes out to lunch and shopping. Fifteen hours after the sex she reports she was raped to law enforcement. If Tim had been found guilty of her accusation, he could have been sentenced to a mandatory minimum of two years in the state prison to life. Any parent with an adolescent boy should be terrified.
Feminism means freedom, but not without responsibility. Women have fought for equal pay, equal opportunities and sexual and reproductive freedoms. If the current system is so bad, let's go back to the house mothers with their rolling pins, checking in the college girls for their 7:00 curfews every night.
The bottom line is college kids are having sex with each other. Along with this comes conflicted emotions and regrettable sex. Young lives are being decimated over the spectacle of dragging these kids through the criminal justice system and kicking the can to the jury. The Missoula County Attorney's Office should not abdicate their prosecutorial discretion because it is politically incorrect. A trial is a war zone and there can only be winners and losers. If the pressure continues to push these cases to trial, we all lose..
Criminal defense attorney