Missoula (8 page)

“I feel really bad about throwing my sheets away,” Kelly said, breaking into tears as she realized how inexplicable her silence must seem to someone who hadn’t been in her position. “I didn’t know what to do. I just wanted to forget about it, like it didn’t happen. It was really hard for me to even report it.”

In fact, psychologists and psychiatrists who study sexual assault report that victims frequently react to being raped much the way Kaitlynn Kelly did. In a 2012 presentation in Baltimore, David Lisak—a clinical psychologist and forensic consultant who is an expert on the subject of acquaintance rape—explained to a room full of prosecutors, defense attorneys, police officers, and health-care professionals that when people are raped, the experience is so traumatic that it often causes them to behave in a wide variety of ways that may seem inexplicable. “How many people have ever heard a rape victim say, ‘I felt paralyzed’?” Lisak asked the room. “How many have ever heard a rape victim say, ‘I wanted to scream, and I couldn’t’? How many people here who treat trauma victims have heard them say, ‘I had a nightmare last night; I was trying to run away and I couldn’t move’?”

When a rape occurs in a dorm room, Lisak said, investigators often determine that the victim could have gotten out of bed with apparent ease and fled the room. But “the fact that they didn’t immediately make a break for it, or the fact that they didn’t scream—none of those things necessarily mean that this was a consensual encounter.”

After Lisak spoke, his colleague Russell Strand, a sexual-crimes expert who heads the Family Advocacy Law Enforcement Training Division at the U.S. Army Military Police School, told the same room full of people a story about a military couple who threw a party at their house. One of the guests, a soldier, became too drunk to go
home. The husband and wife escorted him down to their basement and offered him a couch to sleep on, where he promptly passed out, after which they went back upstairs and fell asleep in their own bed, with their four-year-old son lying beside them.

In the middle of the night, the wife woke up to discover that the drunk party guest was lying next to her with his fingers in her vagina, masturbating her, as her husband and son slept in the same bed. She was horrified but said nothing. She lay there in silence for the next fifteen minutes while he continued to penetrate her with his fingers. Defense attorneys for the assailant built their case around the fact that she could have immediately stopped the assault by waking her husband but had remained mute instead.

Prosecutors took the case to trial, regardless, put the wife on the witness stand, and addressed the issue, head-on, by skillfully framing their questions to elicit an honest explanation that would resonate with the jury. According to Strand, one of the prosecutors began by telling her, “Help me understand what you are able to remember about your experience.”

“Well, his fingers were in my vagina,” the woman said.

The prosecutor asked, “What were you thinking when you woke up and realized, ‘His fingers were in my vagina’?”

She answered that she was thinking, “Oh my God, I hope my husband doesn’t wake up….He would have killed this guy, and my four-year-old son laying next to me, his life would have been ruined, my life would have been ruined, and my husband’s life would have been ruined. So my first thought was ‘I hope he doesn’t wake up.’ ”

This testimony, Strand said, caused the assailant’s case to fall apart, and he was convicted.

AS DETECTIVE CONNIE BRUECKNER
continued interviewing Kaitlynn Kelly, Kelly became unglued. Brueckner tried to comfort her by praising her for reporting the assault. “What happened isn’t okay,” Brueckner offered. “I can see that you’re upset. You are a strong gal, and you probably have very good judgment most of the time….There’s some Kleenex there if you need it.”

Then Brueckner pointed out that the case was going to be tricky
to prosecute because both Kelly and Calvin Smith were drunk. “I’m sorry he didn’t hear you [when you said no],” Brueckner said. “But the good thing coming of this is, you’re not stuffing it someplace where it is going to come back later in your life….You’ve got a good, supportive family. And there are great services on campus….And you can move past this, I’m sure. It’s much better to do that now than try to deal with it five years from now.”

“I just don’t want him to do it to anybody else,” Kaitlynn Kelly wept. Just twenty-one minutes into the interview, before Detective Brueckner had even talked to her assailant, it seemed to Kelly as though Brueckner had already decided not to charge Calvin Smith with any crime.

“We will talk to him, absolutely,” Brueckner assured Kelly. But then she added, “I can’t guarantee you this is going to turn into some big thing where he’s going to go to jail….Some people come in here and they’re like, ‘I want him in jail!’…And it’s not easy to just throw people in jail when it’s a ‘he said, she said’ scenario. But we will bring him in, and it will be very clear to him that [this] kind of behavior is unacceptable. And that he needs to be certain when he’s engaging in anything sexual with anybody, that that person is okay with it.”

Detective Brueckner told Kelly that her safety and well-being were Brueckner’s primary concern, followed by making Calvin Smith understand that what he did wasn’t acceptable. Putting him in jail, Brueckner said, was much less important: “To me that is sort of secondary to everything else that’s going on here. Do you agree with that?”

Kelly did not agree if it meant letting Smith off with nothing more than a lecture on accountability. “I don’t know how,” she protested to Brueckner, “he couldn’t hear me saying, ‘Stop!,’ because, like, his face was right next to mine.”

“I’m sure he did,” Brueckner replied, but then she suggested that Smith, in his inebriated condition, might not have understood that Kelly was withdrawing the consent she’d given earlier.

Kaitlynn Kelly objected that Calvin Smith must have understood. “I don’t think he cared,” she said.

“And that’s the problem with these kinds of cases,” Detective Brueckner argued. “You can’t give consent when you are so doped up,
or high, or drunk that you have no idea….It is pretty simple. But it gets clouded when everyone is intoxicated.” As the interview drew to a close, Brueckner told Kelly, “Tuesday I’ll give him a call and have him come down here and get his statement. Like I said, these aren’t easy cases. But I want him to go through this, and make it clear that, no matter what he says, or what you said or did, you were too drunk to consent. And it sounds to me…that you never even consented. So it’s not even an issue….Are you going home this weekend?”

“No,” Kelly replied. “If I go home, I will not come back….My mom wants me to drop out and come home. My mom is devastated.”

“You seem like a strong girl. I think you can hang in there and get through it….As horrible as this is, as hard as it is right now, what you’re doing…will have a positive effect on people….And certainly Calvin is going to know that this is completely unacceptable….And you know what? His friends he tells that he’s going to be coming down to police? Well, they are going to know, too,…that this is not okay. One bad thing like this can actually have a good and healthy ripple effect on people, and hopefully prevent this kind of thing from happening to others.”

DETECTIVE BRUECKNER PHONED
Calvin Smith and left a voice-mail message asking him to call her back because she “had a few questions” she wanted to ask him. In August 2014, when Smith met with me to talk about his encounter with Kaitlynn Kelly, he said he wasn’t concerned about the voice mail. He’d been so drunk during his hookup with Kaitlynn Kelly ten days earlier that he didn’t remember much about it. But he was certain the sex had been consensual, and he was pretty sure Kelly had enjoyed it. When Brueckner called, Smith told me, “I assumed it was about the pants.”

According to Smith, he’d consumed alcohol only once when he was in high school, because, as a serious athlete, he’d been careful to avoid things that would have a negative effect on his performance. But after enrolling at the University of Montana, in August 2011, he decided, “Well, I might as well do the drinking thing, now that I’m out of sports.” During his first month in Missoula, Smith said, he got drunk “probably four or five times”—pretty much every weekend.
Then, on September 30—the night he met Kaitlynn Kelly—Smith went big. He got totally shit-faced. “Never had that much to drink in my life,” he said. “I remember being pretty drunk and not being able to walk too straight. I don’t know how I didn’t throw up.”

As Calvin Smith recalled that night, around 9:00 he went to a friend’s off-campus house, where he began playing beer pong. He estimates he had ten to twelve beers before returning to his dormitory, shortly after midnight, with his friend Ralph Richards, whereupon Smith had two shots of rum with some guys who lived across the hall. At that point Smith and Richards decided to leave the dorm and hang out on the plaza outside nearby Jesse Hall, Smith said, “because there is always things happening in front of there, and people to talk to, and fun stuff happening.”

After bumping into Kaitlynn Kelly and agreeing to have sex with her, according to Smith, “she basically carried me up to her room. Because I could barely walk myself at that point. I was kind of leaning on her….So we go up to her room and lay down on her bed. At that point things got kind of…” Smith paused for a moment, then reiterated that he was so hammered he can’t recall much about what happened next.

On October 14, Smith went to the police station to be interviewed by Detective Brueckner. What Smith told her about how he ended up in Kelly’s dormitory closely matches what Kelly told Brueckner. Concerning what happened after they entered her room, however, Smith’s account and Kelly’s account are difficult to reconcile. According to a page-and-a-half summary of Brueckner’s interview with Smith that she submitted with her case report,

Smith described a very open discussion with the girl about having sex….Smith’s impression of the girl was that she was not intoxicated….

He described her room as dark and recalled her bed was pushed up against the wall. Smith did not think anyone else was in the room. He remembered making out with the girl on her bed. He stated they both took their pants off. Smith clarified that he “might” have taken her pants off for her. Smith stated the female was lying down on the bed and he was at her feet.

He stated he used his fingers to penetrate her vagina. He did not believe he penetrated her anus. Smith stated the female was not saying anything but was moaning. He stated it was his impression she was consenting to his sexual contact. Smith reported the female gave him oral sex at one point. He denied ejaculating but admitted to having an erection. Smith stated he never held her down or prevented her from leaving. He recalled she “moved by herself.”

Smith stated he and the female “made out” some more after which she asked him to leave. He recalled asking her if she was sure, to which she replied yes. He recalled getting up and leaving her dorm. Smith did not initially recall going into the bathroom in the dormitory. He later stated he remembers “as if in a dream” that he was in the girls’ bathroom. He clarified that it was a memory, but he remembered it as a dream and did not think it had really happened. Smith recalled following the girl to the bathroom and then returning to her bedroom. When I informed Smith that the girl had reported she was crying in the bathroom, Smith became visibly distraught and tearful. He began to cry and stated he was very sorry she was upset and never meant to hurt her or make her sad. He seemed genuine in his emotions. It was clear from speaking to Smith that he was surprised at the accusations and disturbed that her experience was that their contact was non-consensual….Smith later stated he may have attempted to have sexual intercourse with the girl at which point he recalled she asked him to leave. He described this as a “turning point” in their encounter. Smith confirmed that he left when she asked.

Smith did not initially report taking the girl’s jeans. When confronted about the clothing, Smith stated that he did take the jeans when he left her room. He stated he was embarrassed by his actions. He explained that he had never had sex before and took the jeans as proof to his friends. He recalled swinging the jeans around in his dorm room after he returned from Turner Hall. Smith said he disposed of her jeans the next day.

Smith did not recall having any blood on his hands when he left the girl’s dorm room. He stated he later discovered some
on his hands and jeans. He felt it was perhaps due to her being on her menstrual cycle. Smith stated that when he left Turner Hall he walked to Noon’s [a twenty-four-hour gas station and convenience store nine blocks away] and then returned to his dorm room.

Smith appeared extremely upset at the end of the interview. He was very concerned about the consequences of the investigation. He repeatedly expressed how sorry he was and a desire to let the girl know he never meant any harm. Smith realized he had made mistakes. He stated he should not have been drinking nor should he have been sexual with someone else who may have been drinking. Smith understood that taking the girl’s jeans was wrong.

During his interview with Detective Brueckner, Calvin Smith told me, she repeatedly asked if Kelly ever said “no or anything like that. And I was like, ‘No….I would have stopped if she said no.’ I did stop, at the end, when she said she didn’t want to anymore.” Smith said Brueckner and another detective “kept asking me weird questions, like if I had any blood on me or anything….But it wasn’t enough to, like, worry me or anything. And then, basically at the end of it, they were like, ‘She is saying that you raped her.’ ”
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That was the point, Smith recalled, when “I started crying and freaking out.”

Smith’s uncontrollable sobbing prompted Brueckner to turn off her tape recorder and inquire, off the record, if there was any risk that he might go home and commit suicide. When he assured her that he had no intention of killing himself, according to Smith, she urged him not to worry about being prosecuted. “We still have a lot of investigating to do,” she told him.