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Chapter 7 describes yet another rape involving University of Montana students. Kaitlyn Kelly and Calvin Smith meet on a bench outside Kelly’s dorm at 3 A.M. on October 1, 2011. Kelly’s friend suggests they hook up after Kelly calls Smith attractive. They agree and Kelly says, “Let’s go!” but when they get to Kelly’s dorm room her roommate and her roommate’s boyfriend are there, asleep. Smith says they can be quiet, but Kelly says no. He then violently penetrates her vagina and anus with his fingers against her will. She says no, but he says he just wants to make her “squirt,” and, later, leaves the dorm taking Kelly’s pants as a “trophy.” Kelly is distraught and exhausted, and wakes up to find her sheets, pillow, and the wall next to her bed are covered in blood. She doesn’t understand she’s been raped until talking to her friend the next day.
Kerry Barrett (whose experience of sexual assault is described in Chapter 6) hears from Kelly that she’s been raped. Barrett gets campus security to preserve the security tapes from outside Kelly’s dorm. Kelly decides to report the incident to campus police, and is asked by Missoula police to give a statement at the police department. Detective Connie Brueckner interviews her, asking her why she hadn’t shouted or screamed, but Krakauer writes that studies of sexual assault show that victims rarely behave in this way. It is more common for them to feel paralyzed and afraid. Later, Detective Brueckner interviews Calvin Smith, who gives a very different account. He says the sex was consensual and appears distraught. Detective Brueckner turns off her tape recorder and asks if there is any danger of him committing suicide. She reassures him and tells him not to worry about being prosecuted. Later, Detective Brueckner calls Kaitlyn Kelly and tells her that, despite her bloody clothes, bloodstained mattress, forensic exams, and the video of Smith leaving her dorm with her pants, there is insufficient evidence to prosecute the case.
In October, Calvin Smith gets a notification from the University of Montana Dean of Students, Charles Couture, that he is being investigated for violating of the UM Student Handbook code of conduct for his alleged rape of Kaitlyn Kelly. He is interviewed by Dean Couture and receives a notice that he has been found in violation of the code of conduct with a twenty-point list of the evidence compiled against him. He is expelled, and decides to appeal the decision to the University Court. Krakauer explains the evidence standard used to determine Smith’s guilt. In April, 2011, the U.S. Department of Education sent a letter to colleges and universities, the “Dear Colleague Letter.” It establishes that if more than 50% of the evidence indicates a student is guilty of rape then the student is guilty. This standard is called a “preponderance of evidence.” The standard used in U.S. criminal courts is “beyond a reasonable doubt.” It makes sense for universities to use a preponderance of evidence, a less rigorous standard, Krakauer says, because the harshest penalty a university can give is expulsion, not prison time.
Smith is permitted to have legal representation present at his University Court hearing, but lawyers can only consult with their clients and cannot speak on their behalf. Smith’s main witness at his University Court hearing is Kirsten Pabst, the chief prosecutor for the Missoula County Attorney’s Office. Pabst testifies on Smith’s behalf despite never having discussed the incident with Kaitlyn Kelly. On the stand, she explains why she decided not to prosecute Smith for rape and why, in her opinion, it would be a mistake for the University to expel him. Despite her testimony and testimony from Smith’s parents, the University Court finds that Kelly removed consent three times during the course of the evening, and that Smith is guilty of rape. He is expelled. Kelly and her family are glad her rapist receives some punishment, but they are upset with the Missoula Police Department and Attorney’s Office for not doing more to hold Smith accountable.
Calvin Smith’s sexual assault against Kaitlyn Kelly is the fifth assault described in detail in the book. As with the previous assaults, both Smith and Kelly are intoxicated. They go to Kelly’s room intending to have sex. Consent for sex, however, can be withdrawn at any time leading up to or during intercourse. This is one reason educators encourage university students to seek “emphatic” or “affirmative” consent before engaging in any sexual activity. In this line of thinking, sexual partners should look for obvious signs that their partner grants consent, like their emphatically saying “yes,” before engaging in any new sexual activity rather than waiting for a “no” before stopping sexual advances. In the encounter between Smith and Kelly, Kelly withdraws consent from Smith several times before Smith assaults her. Like many victims of sexual assault, Kaitlyn Kelly does not immediately recognize that she has been assaulted. Only after she has taken time to process her trauma and discuss the events with her friend does Kelly understand that she was raped.
Like Keely Williams, whose previous experience being raped helped her to support Allison Huguet, Kerry Barrett is able to support Kaitlyn Kelly and act as her advocate. Without Barrett’s efforts, the security footage of Calvin Smith entering and exiting Kelly’s dorm would likely have been destroyed. When Detective Brueckner interviews Kaitlyn Kelly, Detective Brueckner seems to think that someone being raped would naturally scream, shout, and otherwise physically resist. But Krakauer notes, again, that a victim’s response to being raped is not necessarily intuitive. He argues that law enforcement in Missoula has not been adequately trained to understand acquaintance rape. Detective Brueckner is operating under false rape narratives. Detective Brueckner’s behavior is even more inappropriate when she interviews Calvin Smith. Her duty as a detective is to interrogate Smith and look for evidence that might corroborate Kelly’s story. Instead, she stops her interrogation to offer Smith sympathy and reassurance.
Chapter 8 introduces the concept of standards of evidence. An evidence standard is used to assess a person’s guilt or innocence and varies according to the institution and possible punishment at stake for the accused. Before the Dear Colleague Letter, all universities used different, self-determined evidence standards when judging rape cases. The letter is important, first, because it requires all universities to use the same “preponderance of evidence” standard. If a college finds a “preponderance of evidence” it simply means it is “more likely than not” that a student is guilty. Second, the letter is important because, for many institutions, this is an easier standard of evidence to fulfill. Yes, more alleged rapists will be found guilty, but Krakauer’s argument is that the punishment they face—expulsion from school, as opposed to imprisonment—is correspondingly light. Calvin Smith’s story shows how the “preponderance of evidence” standard is applied. The University of Montana’s investigation is speedy and efficient compared with the investigation and prosecution of rapes by the Missoula Police, but Smith still has a right to appeal the University’s decision.
The rules of University Court, like the standard of evidence used in it, are quite different from the rules in U.S. criminal courts. For the most part, universities determine their own court policies, and the University of Montana requires students to advocate for themselves. This is why no lawyers are permitted to speak. Kirsten Pabst’s decision to testify for Calvin Smith, an alleged rapist, in his University Court hearing is borderline unethical. Part of her job as prosecutor for the Missoula Attorney’s Office is to maintain professional objectivity. By testifying for Smith, Pabst implies she thinks Smith is innocent. Finding insufficient evidence to prosecute a case in U.S. criminal courts, however, is not the same as determining that a person did not commit a crime. The University Court demonstrates this when, despite Pabst’s testimony, it finds Smith guilty of rape and upholds Dean Couture’s decision to expel him. The problem for Kelly and other rape victims on college campuses is that, even in the rare case when a rapist is expelled, expulsion feels like insufficient punishment for rape.