Cry Rape: The True Story of One Woman's Harrowing Quest for Justice (26 page)

Kuykendall’s deposition, conducted by Armstrong, was even more contentious. Although Kuykendall had not met Patty, she reviewed records of her contacts with the Rape Crisis Center. A ten-year center employee, Kuykendall had provided sexual assault training to law enforcement officers, at times working alongside Woodmansee. She considered him knowledgeable and “somewhat” sensitive, but had raised a concern with him—just prior to Patty’s case becoming public—about the use of ruses. He had mentioned this during a training session as a possible tool, and Kuykendall and two other Rape Crisis workers took him to task on it, saying they didn’t think it was a good idea.

This riled Armstrong, who demanded to know whether Kuykendall was aware that “essentially . . . all jurisdictions in the United States”

allow police to use ruses. She reiterated that such tactics could “back-fire” in sexual assault cases by creating a climate of distrust. She added that Woodmansee, on hearing these concerns, still “didn’t get it,” so the Rape Crisis Center told the state Justice Department it didn’t want him teaching these classes.

Armstrong asked if Kuykendall was aware that “the police department uniformly believes” Patty did not tell the truth. She thought this might have changed, due to DNA evidence. “Well,” said Armstrong,

“there is DNA evidence that demonstrates that the person she claimed raped her [did not]. Is that what you meant?” Kuykendall didn’t know enough to say. Armstrong railed against her ignorance. Had she or anyone at the Rape Crisis Center seen Woodmansee’s “fifty-page” report?

Had they reviewed Patty’s “prior medical or psychological records”?

Had they seen the record of the SANE nurse or those from the Dane County Mental Health Center? Was Patty’s behavior—confessing that she lied about being raped and then not telling the mental health workers differently—“consistent with a victim of rape”?

“Yes, it is consistent,” answered Kuykendall, to whom it made “perfect sense” that Patty would not be candid with the mental health workers with Woodmansee present or even later “if she felt she was still
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somehow under his jurisdiction because he had taken her to the center.”

Moreover, Patty’s actions squared “with what she told our counselor.”

Armstrong bore down on the particulars. Was it “consistent with a rape experience” for a victim to use the word “sensitive” in describing her assailant? “It can be,” answered Kuykendall. “So you’re saying more often than not,” misstated Armstrong, “the victims will say that their brutalizer was sensitive?” No, she wasn’t saying that. But Kuykendall had heard other victims say similar things, which made sense because

“very often someone who was being brutalized would want to seek out any semblance of kindness or sensitivity on the part of the person doing this to minimize the impact of what was happening.”

What about laughing? Is it typical, Armstrong asked Kuykendall, for a victim to laugh while describing a sexual assault? Yes, as a matter of fact: “Laughter is a nervous response that many people have, especially describing such intimate and graphic things.” What about getting drunk, as Patty did that night? This was not surprising, given “some people’s extreme desire to block out the reality of the assault.” What about a victim who would “party with the alleged perpetrator”? This, said Kuykendall, is not uncommon in cases of domestic abuse.

Armstrong, exasperated, said he had presented what he thought were

“some extreme examples” and yet Kuykendall was not troubled by any of them: “Is there anything that I could say to you that Patty did or said during the course of the alleged rape where you would say, gee, I haven’t heard this before and that seems inconsistent?” Kuykendall replied that she would have thought it peculiar if Patty had framed some things to police the way she put them in her so-called diary. But given that this was written strictly for her own benefit, her representations were “consistent” and “understandable.” Armstrong asked a few more questions, then cut Kuykendall off in midsentence and ended the deposition.

Linda Moston’s deposition, which Armstrong also handled, took place at her home in rural Waunakee. Short had trouble finding it and arrived late; Armstrong, much to Short’s displeasure, had begun without him. Moston proved nearly as astringent as Armstrong, whom she accused right off the bat of “trying to put words into my mouth.”

Armstrong asked whether Patty’s pain and sense of powerlessness owed partly to her stepfather’s sexual abuse of Patty’s older daughter, 184

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“assuming that Patty testified to that under oath.” Moston knew of no such abuse, which no one had testified to. She also rebuffed Armstrong’s claim that Patty suffered from “alcoholism and drug dependency,” saying her main problem was depression. And when he began a question by saying, “And if Patty was not raped,” Moston would not stand for it:
“Patty was raped.”

“You personally don’t know that,” began Armstrong. “I do,” Moston interrupted. “In my heart, in my body, in my soul, I know that [she] was raped, beyond a question of doubt.” Armstrong kept expressing skepticism, but Moston remained adamant. “Patty’s not lying about the rape.”

“I just don’t believe Patty is capable of making up a story like this.”

“Patty would not want to call this kind of attention to herself.” Eventually he gave up.

Modl, in deposing Patty’s sisters, also tried to shut down unwanted testimony. When Brenda expressed anger over the tardy testing of Patty’s bedding, he demanded: “Do you have any experience in law enforcement?” “Any training in law enforcement?” “Have you had any experience in your entire life with the Wisconsin crime lab and their processing of evidence?” When Sue lamented that Patty had no support person during her October 2 interrogation, she got the same: “Do you have any special experience or training in dealing with rape victims?” “Have you ever had any employment that involved counseling rape victims?”

Yet both sisters affirmed Patty’s truthfulness and attested to the emotional trauma she had endured—a key element to her pursuit of damages. Since the rape and its aftermath, they said, Patty had become more withdrawn and afraid. “Her spirit is gone,” said Sue. “She’s mis-trustful. She’s frightened. She is worried, worried about relying on anyone anymore.”

Other witnesses also gave supportive testimony. Dr. Stevens affirmed that even at a short distance, Patty could not likely discern a person’s facial features: “Her central loss is too great to make out any details.” Kilmark, after outlining her extensive experience and training in psychology and sexual assault (including having lectured at national conferences for survivors of sexual abuse), said she believed Patty was raped and, due to that event and others that followed, “lived in a constant state of stress and fear.” Bartell had “no reason to disbelieve”

Patty’s account, based on their therapy sessions. The psychotherapist
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was personally familiar with cases in which women made false claims of sexual assault, but Patty did not fit the bill.

The last person deposed was Jill Poarch. This took place in two sessions, with Short posing questions during the first. This was the only deposition, besides her own, that Patty attended; she couldn’t afford to take more time off work. Poarch gave detailed accounts of Patty’s sexual assault examination and her subsequent encounter with Woodmansee, who “thought that there should have been more injury” and asked whether the injuries found “could have been self-inflicted.”

During her first deposition, Poarch wouldn’t comment on the appropriateness of the tactics employed by police, including Woodmansee’s ruse. But during the second, after Armstrong rudely dismissed her (“Other than what you’ve heard from Patty, you don’t know anything about the investigation in this case, do you?”), Poarch spoke up: “It just doesn’t feel right that you would use an interrogation tactic like that with a victim.” Sexual assault was already an underreported crime and the way Patty’s case was handled, she felt, made victims more reluctant to report. Indeed, after what happened to Patty became “very public knowledge,” Poarch said, “we saw fewer patients and there was also a greater percentage of patients that decided not to report to law enforcement.” Armstrong’s rejoinder: “In your view, is it okay for an alleged rape victim to have lied about the rape?” No, replied Poarch, that was not what she meant.

Short was heartened by these depositions, feeling they might get the case past summary judgment and into court. In fact, he thought he had a strong case. Patty and her witnesses had stood up well to opposing counsel, collectively affirming that she was credible. The police, clearly, had conducted only a cursory investigation before using lies and psychological pressure to get Patty to recant. A jury might regard this as unfairly coercive, whether or not she demanded a lawyer or tried bolting for the door.

Getting to this point, however, came at a huge cost for Patty—not just in terms of the emotional battering she endured but also in dollars and cents. Her quest for justice did not deplete her courage or resolve.

But it left her flat-busted broke, and then some.

On the morning of April 28 two representatives of Wisconsin’s Business Enterprise Program arrived without warning at Patty’s coffee 186

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shop. They shut it down and confiscated her supplies. Patty had fallen too far behind in her payments. Patty called Moston, who got word to Short. He tried reaching her, to no avail. Devastated and ashamed, she left this message on her answering machine: “I’m here. I have to take the day off. I can’t talk to people today. Please don’t call me.” Short stopped by Patty’s place to make sure she was all right. He found her grieving the impact of these events on her chief assistant, who had been with her for fourteen years. That was just like Patty, Short related, “always concerned about somebody else.”

Hal Harlowe went to bat for Patty, arguing that Business Enterprise had not given proper warning and otherwise failed to follow its own procedures. Kilmark helped arrange a repayment plan. But Patty’s coffee shop franchise was lost forever, and it would be five months before she was given a new vending machine run. In between, she got a part-time job at a neighborhood grocery store, and Short assumed the lawsuit’s ongoing costs.

On May 9, a day past the deadline, Short filed his response to Axley’s motion for summary judgment. He recounted Patty’s assault and subsequent “humiliating interrogation,” saying she was not allowed to leave the room or come back with an attorney. He disputed the defendants’ immunity claims, saying “no reasonable officer would have conducted such a slipshod investigation and coercive interrogation.” He said Woodmansee had disregarded his training regarding the proper investigation of sexual assault.

Accompanying this filing was an excerpt from the state sexual assault training manual used in sessions conducted by Woodmansee.

It advised that victims’ reactions are widely divergent and can include showing little emotion and even smiling and laughing: “Do
not
assume that a victim’s behavior is a red flag for untruth.” Short also submitted a response pleading that made prodigious use of Kuykendall’s testimony that Patty’s behaviors were not inconsistent with what one would expect from a victim of rape.

Short’s pleadings were nowhere near as polished as those from opposing counsel. They contained minor factual errors and misspellings.

But they identified dozens of instances in which the two sides had different takes on what occurred. Short’s goal was to establish that there were fundamental disagreements over matters of fact, which a jury
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should decide, as opposed to disagreements over matters of law, which were in the judge’s purview.

Several days later, Axley submitted a nineteen-page rebuttal to Short’s objections to its findings of fact and a fifty-nine-page reply brief in support of its motion to dismiss. Included was a section that capital-ized on Short’s failure to notice that Woodmansee forwarded Patty’s file to the district attorney’s office the day after receiving her attempt to lodge a complaint against him. There was, Axley asserted, “
no
evidence that Detective Woodmansee’s decision to refer [Patty] for prosecution was related
in any way whatsoever
to her letter to Woodmansee’s supervisor.” (Emphasis in original.)

Short, exhausted, did not respond to this latest set of filings. He and the Axley attorneys filed a joint final pretrial report that disclosed each side’s prospective witnesses. Short listed eighteen names, including all of the people deposed as well as Mark and several additional members of Patty’s family. Axley listed twenty-four witnesses, including Maples, Riley, Thiesenhusen, Maida, Buckley, and Dominic. Both sides named the principal players: Patty, Woodmansee, Draeger, Schwartz, and Feagles. There were, it was agreed, five major factual issues: 1. Whether Defendants falsely arrested Doe in violation of her constitutional rights.

2. Whether Defendants retaliated against Plaintiff in violation of her First Amendment rights by prosecuting her for activity protected under the First Amendment.

3. Whether Defendants coerced a confession from the Plaintiff in violation of her constitutional rights.

4. Whether Defendants had probable cause to recommend prosecution of Doe for obstructing an officer.

5. What sum of money, if any, should be awarded to Doe to compensate her for the alleged violation of her constitutional rights.

No jury ever got to decide these issues. On May 18, 2000, Judge Shabaz threw out the lawsuit “with prejudice and costs,” saying the plaintiff “has not demonstrated any violation of her constitutional rights.” He found that Woodmansee had probable cause to believe Patty had lied given “the lack of physical evidence” and discrepancies in her account. The detective’s alleged failure to contact potential witnesses or analyze evidence was immaterial since he had “no duty to further investigate” once he came to believe that Patty had committed the 188