The trials of Jane Doe 

As Missoula tries to change the way it handles sexual assault, one victim finds the process "keeps getting worse and worse"

It's been 15 months since Jane Doe told police that Timothy Eugene Schwartz raped her in her dorm room at the University of Montana. Since then, she's seen three trials and two different Missoula county attorneys. She's grown apart from her best friends. She's dropped out of college and moved home to California. But she keeps coming back to Missoula because she has to.

"It keeps getting worse and worse," she said back in February, a few days before the second trial. "It keeps getting dragged out. But I wanted him to go to jail, and I couldn't live with myself if I just let him get what he wanted out of it."

She sticks her chin out when she says that—a tic that she repeats when she says she can't stand the smell of wine anymore, or when she says she wanted to hit current Missoula County Attorney Kirsten Pabst. It is the gesture of a young woman who has decided to be tough before testifying as the principal witness in a rape trial, again.

"If it's another hung jury, I don't know what I'll do," she said. "I don't know if I can do it a third time. It already ruined my last year. I was hoping to be done with it this year."

Three days later, on Feb. 24, the second attempt to decide State v. Timothy Eugene Schwartz ended in a mistrial. The Missoula County Clerk of Court accidentally called one of the same prospective jurors called from the first trial, and that juror mentioned it in open court, invalidating the whole pool. Although calling the same juror twice is unlikely, the county had no system in place to prevent it. Jane Doe was going back to California, where she would wait three months before returning to Missoula a third time.

Or she could just drop the whole thing. According to lead prosecutor Jen Clark, Schwartz's attorneys proposed the same deal before each trial: he would plead guilty to criminal endangerment, serve no jail time and not register as a sex offender. Most prosecutors agree that's better than what Jane Doe would likely get from a jury. At pretty much every step of this process, Missoula County gave her a good reason to quit.

"Why is this not going anywhere?" she asked in February, before the second mistrial. "Why can't it be a guilty?"

The answer to that question depends on whom you ask. Last Tuesday, Missoula County convened another 12 jurors to decide State v. Timothy Eugene Schwartz, and they couldn't come up with a verdict either—not at first, anyway. At 4:30 p.m. on Friday, they informed Judge John Larson that they could not reach a decision. After another hour of deliberation, they sent a second note that added the word "hopelessly" to "deadlocked."

The prosecution braced itself for another hung jury. But after the judge sent the jurors back to deliberation with new instructions, they reached a consensus. At 7:05, they filed back into the courtroom with a verdict of not guilty.

Jane Doe came to Missoula for her freshman year of college. After three trials that lasted more than 15 months, she is going home the alleged victim in a rape acquittal. Something is wrong with how Missoula has treated her. But what?

The question of how Missoula treats women who file rape complaints has been amply documented, both in an investigation by the U.S. Department of Justice and in a recently published book by John Krakauer titled Missoula. In the latter, Krakauer convincingly argues that a combination of widespread misunderstanding and individual stubbornness caused police, prosecutors and the University of Montana to mishandle a series of sexual assaults between 2010 and 2012.

Despite the title of his book, Krakauer makes it clear the rate of reported rapes in Missoula is no higher than in other college towns of comparable size. He considers the experiences of the victims whose cases he wrote about typical. But he aggressively criticizes newly elected Missoula County Attorney Kirsten Pabst, both for her work as a prosecutor under former County Attorney Fred Van Valkenburg and in her role as a defense attorney for Jordan Johnson, the UM quarterback acquitted of rape in 2013. When she took office at the beginning of this year, Pabst inherited a scandal and the scrutiny that comes with it.

click to enlarge i23cover.jpg

She also inherited 38 pending sexual assault cases, including State v. Timothy Eugene Schwartz. First tried under Van Valkenburg and then retried under Pabst, it seems like a literal test case of how the Missoula County Attorney's Office has improved its approach to victims of sexual assault.

"If you can't look at yourself in the mirror and say, 'I want to do a better job,' then I think you need to get out of public service," Pabst says in an interview with the Indy. "I can't tell you that we're all the way there yet. I can tell you that we're very committed to being better sexual assault prosecutors."

Three years after the events described in Krakauer's book, it's difficult to say how much Missoula has improved its treatment of rape victims. Everyone interviewed for this story wants to help Jane Doe, yet somehow she's had to deal with a series of legal flukes, bad coincidences, scheduling setbacks, staffing changes and, ultimately, frustration. She is the one who keeps having to take a deep breath, stick out her chin and come to terms with another disappointment.

"The justice system sucks," she says.

Here is one difference between rape and other violent crimes: your typical violent crime is a whodunnit. Everyone agrees what happened—someone broke into a house or someone beat somebody up—and the state has to prove who did it. In a rape case, however, everyone agrees who was involved, and the state has to prove what happened.

In Montana, that means proving two people's state of mind. In order to establish that a defendant is guilty of sexual intercourse without consent—the statutory term for rape—the prosecution must prove not only that the victim did not consent to sex, but also that the defendant knew the sex was nonconsensual.

Timothy Schwartz and Jane Doe mostly agree what happened on the night of Feb. 16, 2014. Jane Doe was drinking in her dorm room with her roommate and friends from their floor. Around 11 p.m., Schwartz arrived with his friend. A few hours and an unsuccessful beer run later, her roommate went to sleep and the other guests went home. Schwartz lay down on the floor and Jane Doe went to bed fully clothed.

Here accounts diverge. According to Jane Doe's testimony, Schwartz turned off the lights, climbed into her bed and began grinding his body against hers. When she told him to stop, he said, "You know you want it." "No, I don't," she said. Then Schwartz flipped her onto her back, pulled off her clothes and forced his penis into her vagina.

According to Schwartz, Jane Doe invited him into her bed. They kissed for a few minutes before he asked her, "Do you want to have sex?" She said yes. After they both orgasmed, he went to sleep. In the morning, he stayed in the room for about two hours. He says Jane Doe invited him to come back later that day to help her with a paper she was writing about rape.

These two narratives are mostly the same, except for the part where Jane Doe explicitly tells Schwartz she wants to have sex with him. She says she told him no. Even if the jury believes her, the prosecution must prove that Schwartz heard her, that he understood what she meant and that he knew he did not have consent.

"That's a thing in our statute that needs some work," Clark says. "The most common out jurors take on these is 'He didn't have consent, but he didn't know.'"

According to Ben Fowlkes, who served on the jury in the first trial and wrote about his experience for the Independent, nine other jurors decided Schwartz didn't know he was raping Jane Doe because she didn't scream. They wanted physical evidence beyond the bites on her lip and bruise on her neck. They questioned why she went to Curry Health Center the next afternoon instead of first thing in the morning.

Even though they believed her testimony and found Schwartz's account incredible, they could not agree on a verdict.

Although the hung jury disappointed Clark, it did not surprise her. Like the other prosecutors interviewed for this story, she considered it a kind of victory.

"We were all pretty excited with the hung jury on it, because rape cases are generally really tough," she says.

Clark describes another case she prosecuted, in which the defendant confessed to putting on the victim's boyfriend's deodorant, sneaking into her bedroom and penetrating her while she was asleep. When she woke up and told him stop, he apologized and left. The jury found him not guilty.

"We questioned the jurors after that," Clark says, "and a woman said, 'We don't think he had consent, but we don't think he knew that he didn't have consent.' She was sleeping. How could he not know?"

Jury selection for the third trial of State v. Timothy Eugene Schwartz began at 9 a.m. on Tuesday, May 26. All 28 of the men and women summoned had heard of Krakauer's book. Only one had read it. Asked if they had an opinion about it, all 28 prospective jurors raised their hands.

"In Missoula, we haven't had a rape prosecuted in a long time," one woman said. "But now it's like a witch hunt."

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