Missoula County Attorney Fred Van Valkenburg knew the other shoe would eventually drop in his public tussle with the U.S. Department of Justice over how to handle sexual assault cases. He said as much to the Missoula County commissioners before filing a lawsuit against the DOJ for overstepping its jurisdiction, noting, "They will try to do something to embarrass us, to make us worried ..." But Van Valkenburg didn't quite expect the high-profile kick in the teeth delivered Feb. 14 in a letter stating that, after a 10-month investigation, the DOJ had found "substantial evidence" suggesting county prosecutors discriminate against female sexual-assault victims and that the county's shortcomings put "all women in Missoula at risk."
"Our investigation indicates 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," Assistant Attorney General Jocelyn Samuels and U.S. Attorney Michael Cotter wrote in the letter.
The story garnered national headlines with damning stories by Mother Jones, the New York Daily News and Jezebel, among others. But after taking a few days to review the DOJ's claims, Van Valkenburg, who learned about the letter at the beginning of a vacation in Hawaii, provided a more detailed rebuttal.
"It's nonsense," Van Valkenburg says. "These people are making stuff up."
Van Valkenburg says a good illustration of how the DOJ is twisting the facts comes from an incident in which a woman claimed to be drugged prior to being sexually assaulted. In that case, prosecutors received video footage supporting allegations that a perpetrator slipped something into the woman's drink. The DOJ notes that the man had just one day earlier filled a prescription for Xanax. "Nonetheless," the letter states, "MCAO declined to charge the case, citing insufficient evidence."
Only by reading the letter's footnotes does one learn that no drugs were found in the alleged victim's system. The DOJ goes on to suggest "there are indications that this may have been due to a false-negative test caused by setting the toxicology levels too high."
Van Valkenburg says allegations from the mother of a 5-year-old girl who was allegedly sexually assaulted by an adolescent boy are similarly weak. In that instance, the DOJ wrote that a county prosecutor told the mother "boys will be boys" when explaining why the perpetrator was only sentenced to two years of community service. Van Valkenburg calls it an unverified accusation.
"They don't in any way rely on stuff that would actually prove their case in court," he says. "They rely on hearsay that is uncorroborated. Really, there is no evidence."
The DOJ also alleges that the Missoula County Attorney's Office has a low sexual assault prosecution rate. Between 2008 and 2012, MPD referred 85 sexual assault cases to the prosecutor's office. County attorneys filed charges in 14 of those, equating to a total of less than 17 percent.
Van Valkenburg says those numbers are "on par" with other communities. The University of Kentucky Center for Research on Assault Against Women notes that prosecution rates nationally hover between 14 percent and 18 percent.
Jenny Daniel, who advocates on behalf of sexual and domestic violence victims as the city-county's JUST Response program coordinator, agrees that a 17-percent prosecution rate, though it can be disheartening to victims, is the norm. "I don't think that Missoula is so unusual," she says.
Van Valkenburg believes the DOJ's accusations are a direct response to his lawsuit. On Feb. 11, just three days before the DOJ released its letter, Van Valkenburg asked a federal court judge to order the federal government to cease its investigation of the Missoula County Attorney's Office. He argued the DOJ has no authority to scrutinize an elected county prosecutor.
"They are obviously retaliating because I filed a complaint for declaratory judgment in federal court," Van Valkenburg says. "They are not good people who are making these claims."
Van Valkenburg says he is not backing off his lawsuit because of one thinly veiled attempt to make his office look bad.
Amid the back and forth between Van Valkenburg and the DOJ, victim advocates like Daniel are simply trying to do their jobs. Daniel says during her 10 years of service, she's seen no evidence of widespread insensitivity in the county attorney's office. Instead, she believes universally low prosecution rates are part of a broader problem dealing with sexual assault cases in general.
"We're really running up against societal views," she says, "because so many of [the cases] that have been taken to the jury haven't been convicted, and they are really pretty open-and-shut cases, in my opinion."