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At that time, Jane didn't disclose anything about her father's behavior. No charges were brought. Jessica says she was enormously frustrated by the inaction. She and Yolanda still don't understand why Jeff wasn't arrested in 2015, or why the text messages weren't enough to generate charges. Throughout the process, Jessica says, she struggled to understand what was happening, even though she frequently kept in touch with the city-county Crime Victim Advocate Program. "I had to constantly call them and be, like, do you have any information?" Jessica says.
I asked Missoula County Chief Deputy Prosecutor Jason Marks why the texts weren't enough to arrest Jeff. Marks says that without incriminating testimony from the victim, his office had no probable cause to press charges.
"Really, we either need a video, which sadly we see sometimes, that establishes that yes, this happened, or we need the kid to be able to say it happened," Marks says. "People being suspicious and having concerns—there being red flags—gets you to an investigation, the kid going into First Step, maybe the suspect being brought in and questioned about it. But it doesn't get you to a point that you can prosecute."
Moreover, Marks says, it's not always a slam-dunk even if the child later does open up and decide to disclose the abuse.
"And then you get a defense attorney who's, like, 'Well, the first time the kid said nothing was going on, and there's been this custody fight or intervening circumstance, so we think Mom's putting her up to it,'" Marks says. "So it makes for a more challenging case."
The path to arrest and a plea deal
The texts alone didn't amount to probable cause. But then one night in 2016 Jeff was drinking at a woman's home in Missoula with some friends. The woman's grade-school-age daughter went to her bedroom in the basement. Jeff disappeared from the party for a little while. According to court records, the little girl came back upstairs later that night and told her mother that Jeff had followed her into her bedroom and forced her to perform oral sex. The mother called 9-1-1. Police arrested Jeff.
Investigators brought Jane into First Step for another interview. With the knowledge that her dad had been charged with assaulting another child, she told detectives that her father had sexually abused her for as long as she could remember.
She finally told Jessica, too. Jessica says she was sitting at home watching TV with Jane when her daughter turned and said she needed to talk. "Everything came out," Jessica says. Jessica learned that when Jeff previously had unsupervised custody of Jane during the daytime, he had molested her in grocery store and Walmart bathrooms.
The county attorney's office charged Jeff with two felony counts: one of rape, for the event reported by the other victim's mother, and one of incest, for the abuse alleged by his daughter.
Jessica and Yolanda both wanted to see Jeff put on trial and sent to prison for the rest of his life. But Yolanda was worried. She thought about those headlines in which convicted pedophiles received short prison sentences. In 2013, for instance, a petition circulated demanding the recall of a Billings judge who sentenced a 47-year-old teacher to a month in jail for raping a 14-year-old student (though the sentence was later overturned and lengthened by another judge to 15 years with five suspended). In May 2016, a former Missoula County Youth Court officer received a six-year deferred sentence—less than the mandatory minimum punishment—for sexually assaulting a 13-year-old girl. In Oct. 2016, a Glendive man convicted of raping his 12-year-old daughter received a suspended sentence, prompting a dozen constituents to write Gov. Steve Bullock asking for intervention. Bullock responded that he was horrified by the case, but couldn't do anything.
When the county attorney's office announced that Jeff had entered a guilty plea as part of an agreement with prosecutors, Yolanda feared a similarly unsatisfying result. She and Jessica were upset when Marks told them he thought a plea deal would offer a better chance of conviction than a trial. The proposed sentence offered the possibility of parole in 10 years, though it would be months before the sentencing hearing made it official.
Yolanda texted me when the plea deal was reported in summer 2016, furious at the news.
"There is such little support for [Jessica] and her daughter and other victims like her, and so little justice done to the perpetrators, that it is easy to give up," Yolanda wrote. "The process is long, and [Jessica] has given so much time and energy for barely an acknowledgement that her daughter's father committed incest."
Marks says he knows that victims and the public often want to see the harshest possible penalty for men who rape children. Jessica told me that she wanted Jeff to be publicly humiliated for what he did. When news of the plea deal was published in the Missoulian, it prompted outrage from others as well. One commenter demanded that Jeff receive the maximum prison sentence before speculating that Jeff must be related to the judge or prosecutor. Such comments don't escape Marks' notice. But in the absence of physical evidence, sexual assault prosecutions usually rely on testimony from the victim to prove their case. And Marks says that testifying at a trial in front of their abuser and strangers isn't always the best thing for a traumatized child. Prosecutors can ask adult victims to decide for themselves if they want to testify. Children—especially younger children—often aren't able to make that call. Marks won't disclose how he decided that Jane shouldn't be asked to testify, but he does say that, in general, he takes the advice of parents and therapists and performs his own assessment of the situation when deciding whether to put children on the witness stand.
In any case, there's no guarantee a jury will believe the victim. In Jeff's case, Marks says that without testimony in front of a jury, the text-message evidence and First Step interviews alone wouldn't have been strong enough to convict him on the incest charge.
"If a jury comes back with a not guilty [verdict], they're left with—they told the truth about this terrible thing that happened to them, and no one believed them," Marks says. "So there's a lot of countervailing pressures against 'damn the torpedos, take the case to trial.'"
And even if prosecutors secure a conviction, the judge is the sole authority who can hand down the sentence. There's no guarantee what a judge might decide to do.
Determining prison sentences for pedophiles
Montana's sexual assault statutes give judges wide leeway for rape charges involving minors, from a four-year prison term to a life sentence. Judges can opt to defer sentences, too.
In Missoula, former Youth Court officer Vayeeleng Moua was convicted last May of raping a 13-year-old girl. Prosecutors asked for a 20-year sentence with 15 years deferred. Lake County District Court Judge James Manley instead handed down a six-year deferred sentence, and a requirement for community-based treatment. Manley said the sentence was "the most unique and difficult decision I've had to make," and asserted that it was based on psychological evaluations of the offender indicating that he posed little risk of re-offending and had been punished enough by his own conscience.
The outcome frustrated the state prosecutors who worked on the case, but Manley's decision is understandable if you ask Andy Hudak, a Whitefish-based therapist and lobbyist for the Montana Sex Offenders Treatment Association. I called Hudak to see if he could shed light on how judges make sentencing decisions.
It's true, Hudak says, that some judges make uninformed decisions based on personal bias. But other judges sometimes hand down short sentences based on recommendations drawn from the offender's psychosexual evaluation, which the public doesn't have access to.
Hudak—who discloses that he is a victim of sexual abuse himself—says that lengthy prison sentences are not always the best way to deal with sex offenders. He emphasizes that he shares with victims and citizens the same protectiveness toward children and disgust at molestation, but he also thinks that gut instinct isn't necessarily the best source of smart public policy.
"I'm all for spending a million dollars to lock up a high-risk guy to protect the community. Yeah. We're for that. But not for a guy who's low risk, who does not represent a danger to people's children," Hudak says.