Teachable trial 

UM law class cross-examines the Johnson case

Of all the details covered during 12 days of testimony and arguments in the trial of University of Montana quarterback Jordan Johnson, one created the biggest challenge to both legal teams: Johnson knew the woman he was accused of sexually assaulting.

"People think rape and think stranger in the bushes ... but acquaintance rape is totally different," says UM School of Law professor Andrew King-Ries. "It challenges a lot of people's ideas, perceptions, misconceptions, stereotypes around what a rapist looks like, what a rape victim looks like. As an attorney, how do you address that?"

This semester, that is exactly the question King-Ries has posed to the second- and third-year students in his class on domestic violence law. King-Ries, who practiced for eight years as a prosecutor specializing in domestic violence cases, urged his students to follow the Johnson trial for a real-life example of what he's been teaching in the classroom.

"[The Johnson trial] gets students to think about some of the challenges of cases like this," he says. "And it's close to home, being played out right in front of their faces."

click to enlarge Missoula Independent news
  • Photo by Cathrine L. Walters
  • Jordan Johnson’s defense attorneys, David Paoli and Kirsten Pabst, take questions after the jury found their client not guilty.

On March 1, after deliberating for just over two hours, the jury found Johnson not guilty. The verdict closed the latest chapter in UM's ongoing rape scandal, during which 10 students associated with the football program have been accused of sexual assaults since December 2010. The saga has dominated local news and drawn the attention of national media, including The New York Times, ABC News and ESPN.

King-Ries wasn't surprised by the verdict. Though he thought the state presented "compelling evidence," he also notes it faced a nearly impossible task. "The burden of proof is beyond a reasonable doubt. It's the highest burden we have in the legal system, and it's the [prosecution's] burden by itself ... In this case the only witnesses to what happened in that room are Johnson and this woman. That makes for an incredibly difficult case."

From a teaching perspective, King-Ries has found no facet of the Johnson case more fascinating than how it highlights what he perceives as "a gap" in Montana statute. State law, he pointed out to his class, defines "without consent" as "the victim is compelled to submit by force ... or the victim is incapable of consent." But what if a woman says, "No," and the man has sex with her despite her verbal objection? What if he applied no physical force but still ignored her wish?

"Acquaintance rape most often fits in that gap," King-Ries says. "If they say, 'No,' that should be respected and that should be enforced. But the way our statute is written, it doesn't really fit."

For King-Ries and his students, this posits an interesting discussion question: Should it?

Despite questions raised by the trial, King-Ries says he understands why the verdict came back not guilty. After the hearing, an unnamed juror from the trial was quoted in the Missoulian saying, "We were kind of hung up on the fact that we just couldn't do a conviction, because we weren't sure whether Mr. Johnson was aware of whether the sex was non-consensual." Given the evidence, the parts of the trial he was able to follow and Montana law, King-Ries feels the issue of whether Johnson was aware that she had not given consent is fair.

"It seems to me that's where the jury should be focusing their attention in an acquaintance rape case," he says.

Third-year law student Fallon Stanton was among those discussing the trial in King-Ries' class. Much of what she absorbed, she says, was "practitioner stuff," but her observations galvanized in her why rapes, particularly acquaintance rapes, are believed to be underreported crimes. She plans to practice criminal prosecution after graduating this spring, and says the Johnson trial has informed the way she hopes to practice law, especially when it comes to the treatment of the alleged victims in sexual assault cases.

Later this spring, Stanton plans on writing a paper about how the legal process can further hurt victims of sexual assault. While she doesn't see a clear alternative to the current way of doing things, she says her paper will aim to identify the reasons victims of sex crimes are sometimes deterred from pressing charges.

"With these cases, people start critiquing the victim, which is not to say the person accused of rape is necessarily guilty, but it's a reason some victims don't want to go through with pressing charges ...," she says. "She will be harassed and critiqued for the rest of her life."

Stanton says she is not yet finished with her research for the paper, but in one way or another, the perspective she gleaned from the gallery of the Johnson trial will leave an impression on the final product.

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