Missoula (29 page)

“That’s the first part, yes,” Washburn replied, but then she reminded Paoli (and the jury) that there was a second part to the Facebook message he’d neglected to mention.

Paoli conceded that there was a subsequent statement, in which Washburn said, “It’s all ridiculous because I know I didn’t ask for this.” But Paoli immediately resumed asking questions intended to show that she was lying about being raped: “And then you say, ‘It just
seems like the more and more this drags on, the more and more I feel guilty about it.’ Isn’t that right?”

“Yes.”

“And you express concern in here, in your own words, that the whole situation makes you feel like you just lied?”

Washburn acknowledged, “It makes me feel like I lied, yes.”

“And then you say, ‘Maybe my other friends will think I lied about it, or what if it really is my fault….It’s so frustrating.’ ”…

“I wrote that, yes,” Washburn confirmed.

In her Facebook message to Bryan Court, Washburn also mentioned her childhood anxiety disorder. “That’s the anxiety disorder you had prior to this, right?” Paoli asked.

“In the seventh grade,” Washburn answered.

“And that’s the anxiety disorder and suicidal ideations that you have told us that you went and got counseling for; isn’t that right?…And those are the things that I asked you whether your parents obviously should know about, and you said, ‘Yes, they do.’ Isn’t that right?”

“Yes,” Washburn answered.

A little later, Paoli asked yet again, “So, Miss Washburn, you gave Jordan Johnson mixed signals; isn’t that right?”

“It could be seen that way,” she answered.

“And you have told us you could have been clearer?…”

“Yes.”

“And you have told and expressed on several different occasions that you considered yourself responsible and you felt guilty for what happened; isn’t that right?”

“Right.”…

“So you understand that when you say things to people or when you write them down,…individuals rely on what you say….And we should be able to rely on them; isn’t that right?” Paoli scolded.

“Yes,” Washburn replied.

WHEN PROSECUTOR JOEL THOMPSON
was given the opportunity to question Cecilia Washburn again (“redirect examination,” in lawyers’ parlance), he began by saying that he wanted to “clarify” a few of the
statements defense counsel David Paoli had elicited from Washburn. He handed her a copy of the Facebook message she’d sent to her friend Bryan Court, and asked Washburn to read a portion of it that Paoli had deliberately passed over.

“ ‘I have been thinking about this whole messed-up situation,’ ” Washburn read aloud to the jury, “ ‘and it’s driving me crazy, and making me think crazy thoughts.’ ”

Thompson asked her if the intent of the message was to let her friend know that she was having “crazy thoughts.”

“Exactly,” Washburn answered. “My crazy thoughts.”

“Mr. Paoli didn’t ask you about that part of it, did he?”

“No.”

During Paoli’s cross-examination, he’d repeatedly posed questions to Washburn requiring her to acknowledge that, during the period when she claimed she was being raped, her housemate Stephen Green was playing a video game in the living room, a few feet outside her bedroom door. Prosecutor Thompson pointedly asked Washburn, “Have you ever claimed that you made any kind of sound that Stephen should have heard?”

“No, I have not,” she answered.

“You readily admit that you did not scream?” he asked.

“I did not scream.”

“Mr. Paoli asked you about your statement about how you could have been more clear with Jordan; can you explain what you meant by that?”

“I could have done more things to prevent him from raping me. I could have screamed, but I didn’t. I could have rolled off the bed, but I didn’t.”

“Could have scratched his eyes out, couldn’t you?”

“I could have done that, too.”

“So when you are referring to the fact that you could have been more clear, does that mean that you didn’t give sufficient signals to him that you were not consenting?” Thompson asked.

“No, I gave him sufficient signals,” Washburn replied.

“Mr. Paoli also asked you about things that could have happened differently that night. You could have screamed. He asked you that also, correct?”

“Correct.”

“Were you prepared to have a confrontation with the defendant in your home that night?”

“No.”

“Would screaming have caused a confrontation?”

“Yes.”

“Would fighting with him have caused a confrontation?”

“Yes.”

“Why weren’t you willing to have a confrontation?”

“Because I just wanted him out of my house. I wasn’t prepared for that,…and I’m not that type of person, either. I just wanted him gone.”…

Thompson asked Washburn, “Did you have any plans to sue anybody over this or make any money off this allegation?”

“No,” she answered.

“Are you here because Jordan Johnson didn’t snuggle with you after sex on that night?”

“No.”

“Are we here because the quarterback refused to be your boyfriend?”

“No.”…

“Have you prospered in any way from this process?”

“No.”

“Have you at times regretted coming forward at all?”

“Yes,” Washburn replied, specifying that she’d felt this way as recently as the previous week.

“When you made that comment about wanting Jordan to suffer, that Mr. Paoli talked to you about, why did you say that?”…

“Because it seemed like he wasn’t being held accountable for his actions. I’m the one suffering through the trauma, and he was walking around campus like nothing happened….I want him to feel the pain that he inflicted on me.”

      T
he second witness called by the prosecution was Dr. David Lisak, the clinical psychologist considered to be one of the nation’s foremost experts on acquaintance rape. He was asked to provide “educational testimony”: information about what the best research reveals about rapists and their victims. Defense lawyers David Paoli and Kirsten Pabst were so worried about the potential impact of Lisak’s testimony on the jury that they filed a pretrial motion to prevent him from testifying, but Judge Karen Townsend denied it, and Lisak was allowed to appear.

Prosecutor Joel Thompson began by asking Dr. Lisak about “misconceptions about rape”—rape myths. When people hear the term “rapist,” Lisak said, many of them “think of a guy in a ski mask, wielding a knife, hiding in the bushes, breaking into a home. And it’s a scary image, and it does happen, but…the vast majority of rapes, well over eighty percent, are actually non-stranger rapes.” One of the other myths, he added, was the widely held belief that “a non-stranger assault is less serious and has less serious harm, but the research shows that victims of non-stranger assault are equally affected as victims of stranger assault.”

Wondering about other misconceptions, Thompson asked Lisak if rapists can be identified by personality or a psychological profile. “There’s no profile of a rapist that you can use to say either somebody is or that somebody isn’t,” Lisak said.

“But surely rapists are creepier than the average population?” Thompson asked.

“Actually, no,” Lisak answered. We all like to think that we would
be able to recognize the sort of person who might be a rapist, he said, “but the truth is, we can’t.”

“So rapists can be likable?” Thompson asked.

“Absolutely,” Lisak answered.

“Sociable?”

“Absolutely.”…

“Can they be thought of outwardly as kind?” Thompson inquired.

“Yes,” Lisak answered.

“Gentle?”

“Yes.”

“Even timid?”

“Yes, even timid, some of them,” Lisak said.

Thompson encouraged Dr. Lisak to tell the jury what scientific research has revealed about the psychological impact of rape. Lisak explained that being raped is often profoundly traumatic to the victim. In the last ten or fifteen years, he said, there has been a great deal of research about how traumatic experiences affect the brain “at a neurobiological level” and why people sometimes react to being sexually assaulted in ways that are very different “from what we would expect intuitively.”

“So when we talk about how victims react to trauma,” Thompson asked, “is there any one way that they react?”

“No,” Lisak answered. “There is an enormous variability in how victims react in sexual assault.”

Prosecutor Joel Thompson wondered why, if a woman realized a man was trying to rape her, she wouldn’t “fight to the death” instead of letting herself be subjected to such a traumatic experience.

It is a common assumption that any woman threatened with being raped would do everything in her power to physically resist, Dr. Lisak said, “but it’s not what we find….In fact, most women who are sexually assaulted do not resist. The fear is overwhelming. They often feel helpless. Sometimes they make a conscious choice not to resist because they are afraid if they resist, they will be hurt even worse.” Many victims report afterward to the police that they actually tried “to placate the assailant as a strategy to avoid further harm.”

Asked to elaborate, Lisak explained, “One of the things that is
difficult for most of us, frankly, to understand about a rape, is that there doesn’t have to be a gun to the head, there doesn’t have to be a knife present, there doesn’t have to be a verbalized threat for the act itself to be enormously terrifying and threatening….There is a difference between sexual violence and other forms of assault. Sexual violence is so intimate.” When your body is penetrated by another person against your will, Lisak said, it often induces a uniquely powerful kind of terror. According to many peer-reviewed studies, a large percentage of the victims of non-stranger rapes “actually feared they were going to be killed,” even when “there was no weapon and no overt violence.”

Thompson asked how rape victims typically reacted immediately afterward, according to the research.

“There are many different kinds of responses,” Lisak said. “Victims of non-stranger rape are often very confused about what happened. They may be very upset. Distressed. But they don’t automatically label what’s happened to them as rape. In fact, there’s a lot of research about this.” It’s not uncommon, he explained, for victims to “go back and forth between feeling like something really bad happened to them, and being very confused, and even trying to deny that something bad happened to them…as a way of trying to essentially tell themselves that, no, something bad didn’t happen to me.”

Dr. Lisak noted that a great amount of research had been conducted into the effects of trauma on the brain. “And what we now understand,” he said, is that traumatic experiences impact the brain so profoundly that memories associated with trauma “are categorically different from what we think of as normal memory….We have even identified the brain structures that are primarily responsible for this difference.”

If a victim made an equivocal statement such as “ ‘I think I was just raped,’ would that strike you as unusual?” Thompson asked.

“No,” Lisak answered. “It’s quite common….If somebody is experiencing something very traumatic, it’s scary but it’s enormously confusing. It’s overwhelming. And one of the first reactions for many people is to try to undo it, to try to pretend like it didn’t happen.” In a related phenomenon, Lisak explained, it’s common in the aftermath of a rape to see the victim have “quite extensive interaction with the
person who’s alleged to have committed the assault” as an “attempt to try to undo it….You know, if I interact with this person normally, then I can tell myself that…what I feared just happened to me didn’t really happen.”

“But in the immediate aftermath,” Thompson suggested, “couldn’t we at least say that no rape victim in her right mind would give her perpetrator a ride home afterwards?”

“No,” Lisak answered. “I personally have encountered that on many occasions….That is not that uncommon.”

“That’s certainly hard to understand, isn’t it, for the layperson?” Thompson asked.

“Well,” Lisak answered, “it’s hard to understand from outside of the experience. I think that’s the challenge here….These kinds of assaults are not a normal part of most people’s experience.”

Thompson asked, “Is there an element of self-blame that is important in non-stranger rapes?”

“Yes,” Lisak answered. “It’s extremely common for victims, actually, of both stranger and non-stranger rape, although you see it, oftentimes, more intensely in non-stranger victims. They blame themselves almost in any way imaginable.” When you are sexually assaulted by someone you know and trust, Lisak explained, “the world is all of a sudden a very, very terrifying and unpredictable place.” Self-blame becomes an irrational strategy for regaining a sense of control, because to accept that what happened was beyond one’s control is “far scarier” than blaming oneself. Psychologically, he observed, self-blame is “much easier” and “feels better” than living in fear.

Moreover, Lisak said, self-blame seems “to be more accentuated” when victims are raped by an acquaintance. He said that non-stranger rape is “oftentimes more difficult to recover from,” as well, because “if you have been assaulted by somebody you thought you could trust, how do you restore your sense of trust in the world or in people? And how do you trust yourself?” After being betrayed and violated by a person you were sure would never harm you, “how do you then trust your own judgment thereafter?…That’s a hard thing to resolve. And it seems to feed self-blame….You say, ‘Well, it was my fault it happened, so I’ll fix the things that I did wrong, and that will prevent this from happening to me again.”

“GOOD MORNING!”
defense counsel Kirsten Pabst said with an icy smile as she greeted David Lisak to begin her cross-examination. “How was your stay?”

“Very nice,” Lisak replied. “Thank you.”

“You’re from Massachusetts?” she inquired.

“That’s right,” he answered.

“You are a professor from Massachusetts?” she asked.

“I retired from teaching in May,” he said, “so I’m no longer a professor.”

“You’re an erstwhile professor from Massachusetts,” Pabst noted with disdain.

Lisak’s testimony—skillfully elicited by prosecutor Joel Thompson and buttressed by an abundance of peer-reviewed research—had been powerful, and it undermined some of the key arguments Pabst and David Paoli were relying on to keep Jordan Johnson from being convicted. Lacking effective counterarguments to refute Lisak, Pabst resorted to ad hominem attacks. For the remainder of the trial, she and her co-counsel, David Paoli, would repeatedly refer to Lisak as “the professor from Massachusetts,” “the Boston professor,” or some variation thereof, to remind the good Montana folk sitting in the jury box that he was an East Coast intellectual who probably drove a Prius, lived in an ivory tower, and was out of touch with the real world.

Kirsten Pabst also portrayed Dr. Lisak as a highly paid anti-rape crusader who reflexively endorsed the claims of anyone purporting to be a victim of sexual assault. “So you testify on behalf of people who allege that they have experienced trauma at the hands of another?…And you get paid for that?” she asked him.

“Yes,” Lisak answered.

“You said it’s about three hundred and twenty-five dollars an hour?” she asked.

“Yes.”…

“Dr. Lisak,” Pabst demanded, “with all due respect, this is a very personal area for you, is it not?”

“If you’re referring to the fact that I was abused when I was a kid,” Lisak answered, “certainly then. But now I’m fifty-eight years old.”

“But isn’t it true that it was your experience when you were a little boy that led you into the area and gave you this passion for this work that you do?” she asked.

“If you’re trying to imply that…I’m biased toward victims,” he answered, “I think I’ve managed over the course of my professional life and my development as an individual to understand that life is more complicated than that.”

Moving along, Kirsten Pabst interjected a bit of humor as she jumped to a new avenue of interrogation. “I don’t know you very well,” she quipped in a coy voice, “but I want to talk about sex….Would you agree that not all sex is bad sex?”

“Yes,” Lisak answered.

“And would you agree that not all bad sex is nonconsensual?…Just because it’s bad sex doesn’t mean it’s rape.”

“Correct.”

“And awkward sex is not necessarily rape.”

“Correct.”…

“Disappointing sex is not necessarily rape; you’d agree?”

“Yes.”…

“Would you also agree that there is more than one way to communicate consent,” Pabst asked, “ranging from a look,” to written consent with a notary public present, “and a lot of things in between?”

“Yes,” Dr. Lisak agreed, but then he added, “Sometimes the person on the receiving end thinks they are perceiving consent when in fact it hasn’t been communicated.”

Not wanting the jury to go down this path, Pabst steered the discussion back to the “continuum of consent.” Sometimes, she argued, “a smile, depending on the relationship, can constitute consent. Or a kiss.”

“I would disagree with that,” Lisak said.

“What about a French kiss?” Pabst inquired.

Giving no ground, Lisak pointed out that it was easy to misunderstand the meaning of a smile or any kind of kiss.

“Okay,” Pabst said. “So two married people having sex, you’re saying that there needs to be a discussion about it first—‘Do you want to have sex?’ ‘Yes, I do’—before it’s consensual?”

“No,” Lisak answered. “I think when there is obviously a more
intimate relationship between two people, then the methods of communication are much more fluid and…have much more history to them. So I think there are a lot more ways in which two married people can communicate to each other and understand each other. And that would be much less so with people who don’t know each other as well.”…

Pabst asked, “You stated there’s a great variability in the response to sexual assault, correct?”

“Yes,” Lisak answered.

“But you would also agree there’s a great variability in the response to good consensual sex?”

“Sure.”

“And a great variability in response to bad consensual sex?”

“Yes.”…

“You testified that victims, generally speaking, often deny and minimize their assault during and after the event,” which, Pabst noted, leads to the victims blaming themselves for being raped. But what if the event in question actually wasn’t rape? Pabst wondered. What if it was simply bad consensual sex? And if the alleged victim wasn’t raped, she argued, what Lisak interpreted as self-blame might in fact be a woman who’d made a bad decision “acknowledging responsibility.”

“That’s right,” Lisak conceded.

Dr. Lisak had made it clear to the jury from the outset that, at the request of the prosecution, he had not examined the facts of the Jordan Johnson case. His testimony was intended to be strictly “educational,” to share his expert knowledge of non-stranger rape as a societal phenomenon. But, Kirsten Pabst wondered, if he
had
looked at the facts of this particular case, was it possible that “you may have come to the conclusion that the alleged complainant made a false report?”

Lisak acknowledged that anything was possible.

“But that would have been inconsistent with the objectives for which you were hired,” Pabst sneered, implying that Lisak’s statements should not be trusted because he’d been paid by the prosecution to testify.

“The objective for which I was hired,” Lisak reminded both Pabst and the jury, “was simply to…provide educational testimony.”

“About nothing in particular?” Pabst inquired sarcastically.

“Objection!” Joel Thompson protested from the prosecutors’ table.

“Sustained,” declared Judge Townsend. “Are you finished, Ms. Pabst?”