Montana’s most progressive community has come to be known as the “rape capital” of America for its poor handling of sexual assaults. But when the DOJ stepped in, a local county attorney refused to stand down.
LOS ANGELES — Missoula has long been known as the most progressive community in Montana, an island of blue in a largely red political landscape. The home of the University of Montana, its liberalism to some degree reflects the youthfulness of its population — its median age is 30.9, compared to 39.8 for the state as a whole.
Lately, national media have given the city a much less desirable label — the “rape capital” of America — citing law enforcement statistics indicating that there have been at least 80 reported rapes in Missoula over the past three years. Those assaults include an alleged gang-rape by members of the UM football team.
Missoulians have stated that nothing sets them apart from other hard-drinking, hard-partying college towns. Their efforts to shed the negative publicity have been complicated by an extraordinary standoff between local and federal law enforcement officials that has now escalated to a new level of acrimony.
On Feb. 11, Missoula County Attorney Fred Van Valkenburg sued the U.S. Department of Justice, arguing that federal officials do not have the authority to investigate how his office handles sexual assault cases or sue him to enforce civil rights laws.
The DOJ, responding to complaints of gender bias by female students at UM and other women, had begun an investigation in April 2012 of the sexual assault policies of three local agencies — the Missoula Police Department, the University of Montana Office of Public Safety and the Missoula County Attorney’s office.
Both the MPD and the school police cooperated in the investigation and, as part of settlements announced last May, agreed to reform their policies. Van Valkenburg, however, was decidedly less helpful, denying DOJ investigators access to staff members or case files.
Three days after the prosecutor filed his lawsuit, the department notified him by letter of the results of its inquiry, reporting that “an institutionalized indifference to crimes of sexual violence, coupled with bias against the women who represent the overwhelming majority of victims of sexual assault, handicaps the County Attorney’s Office’s ability to protect victims of crime effectively or handle sexual assault cases fairly.”
One deputy prosecutor, the DOJ said, had even quoted religious passages to an alleged sexual assault victim, “in a way that the victim interpreted to mean that the Deputy County Attorney was judging her negatively for having made the report.”
According to the letter, the department has jurisdiction under two federal laws to investigate discriminatory conduct and seek a court injunction to remedy it.
Van Valkenburg said the timing of the DOJ’s action was “one of the most unfair, unethical things that I have witnessed in 35 years of public life,” and the allegations in the report were “half-truths, mistruths and maybe even outright lies.”
The prosecutor had previously rejected a settlement offer from the U.S. attorney’s office in Montana that would have required him to add staffers, including a victim advocate, and designate some prosecutors to specialize in sexual assault cases.
“It’s the kind of guy he is,” Shantelle Gaynor, Crime Victim Advocate grants administrator in the Missoula County Office of Planning and Grants, told MintPress News in an interview. “He’s got his back up and he’s up for a fight.”
Van Valkenburg, a former state senator in Montana, was first elected county attorney in 1998. “[His] stubbornness is so much a part of his public persona that most locals likely envision him as perpetually red-faced and
argumentative, unmoved by opposing opinions,” the Missoula Independent newspaper said of him in a recent profile.
The county attorney’s office employs 17 deputy county attorneys, making it one of the largest prosecutorial agencies in Montana. According to the DOJ’s report, it filed charges in only 14 of the 85 reports of sexual assault referred for prosecution by Missoula police between January 2008 and May 2012 — less than 17 percent.
“The [office’s] failure to prosecute sexual assault, particularly non-stranger sexual assault, does not seem to reflect inherent or insurmountable evidentiary hurdles,” the DOJ said. “Rather, it is indicative of bias in the way the County Attorney’s Office responds to sexual assault cases as a class.”
Van Valkenburg insists the federal government is improperly second-guessing his exercise of prosecutorial discretion.
“The U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit have both held ‘a prosecutor has
absolute immunity for the decision to prosecute a particular case and for the decision not to prosecute a particular group of cases,’” he said in his lawsuit.
The acrimony goes back to an April 30, 2012 meeting between Van Valkenburg and federal officials in downtown Missoula.
Four months earlier, the Missoulian newspaper had broken the story that the University of Montana was hiring an investigator to determine whether several male students, including three football players, had assaulted two female students. Once the initial articles were published, additional women came forward with stories of being assaulted.
The officials told Van Valkenburg they would be looking into his office for failing to prosecute sexual offenses, but
according to Van Valkenburg, they refused to disclose what evidence they had to prove discrimination.
“When they came, I really wanted to know what it was they said that we were doing that was in violation of the law,” Van Valkenburg told the Missoula Independent. “They absolutely refused to say. They won’t tell you anything and that’s true just as much today as it was in May 2012.”
Shut out by Van Valkenburg, the DOJ investigators had to rely on interviews with law enforcement officers, including former Missoula Police Chief Mark Muir, victims, advocates, witnesses and other members of the Missoula community.
One alleged victim told the investigators that the Missoula police detective in her case informed her that “because no one had a limb cut off and there was no video of the incident,” prosecutors “wouldn’t see this [the rape] as anything more than a girl getting drunk at a party.”
A clinical psychologist who had counseled victims of sexual assault in Missoula said she was reluctant to have her own sexual assault case prosecuted by the county attorney after hearing how it had treated those women.
“For victims of sexual assault, MCAO’s response indicates that a decision to report and participate in an assault investigation will be, at best, a waste of time or, at worst, a re-victimization,” the DOJ said.
“It’s just been an impasse”
As part of their settlement agreements, the Missoula Police Department and the University of Montana Office of
Public Safety are required to improve their response to sexual assaults by providing annual training to all officers and offering additional in-depth training to all detectives who conduct such investigations, among other efforts.
“The level of training has been phenomenal,” said Gaynor, who also noted that the agencies are now giving the response to sexual violence a higher priority.
But Van Valkenburg says the changes that the DOJ has asked him to make “would cost Missoula County hundreds of thousands of dollars annually” at a time when the resources of his office are “already stretched thin.”
“It’s just been an impasse” between the county attorney and federal officials, said Kelsen Young, executive director
of the Montana Coalition Against Domestic and Sexual Violence.
The courts may need to break the deadlock, which is somewhat reminiscent of the repeated clashes that outspoken Maricopa County, Ariz., Sheriff Joe Arpaio had with the Department of Justice over racial profiling and other practices. The head of the investigation of the county attorney’s office, Assistant Attorney General Thomas Perez, sued Arpaio for a “pattern of discrimination” by law enforcement officials.
“We do not seek to second-guess the decisions of you or your attorneys to charge an individual with a crime,” the
DOJ said in its Feb. 14 letter to Van Valkenburg. “Our goal has been and continues to be … enhancing the public’s trust in your office’s ability to respond to and make effective prosecutorial decisions about allegations of sexual assault and better protecting women in Missoula.”
Gaynor has mixed feelings about the DOJ’s report. While it demonstrated, she said, the “individual failings” of some prosecutors, she knows there are others who “put their heart and soul into these cases.”
“Almost any community” has problems in prosecuting sexual assault cases, she noted. “We live in a gender-biased society and the criminal justice system is [not equipped] to deal with that.”
The victim advocate office in Missoula receives no general fund from the state and relies on federal grants. According to Gaynor, the community’s sexual violence problem is magnified by chronic underfunding of
government services and a lack of prevention work in the schools.
“The issue of access to the criminal justice system is an ongoing problem in most of our counties,” Young told MintPress News.
Van Valkenburg has said he will retire after his current term ends later this year. His show of defiance may play
well with some constituents, but those who work on behalf of sexual assault victims fear it could ultimately be as unproductive as General Custer’s Last Stand on the plains of Montana.
“It just has really delayed the whole process of getting sexual assault victims the treatment they deserve,” Young said.