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County attorney cites lack of evidence as reason not to charge in MSU frat rape case

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The Gallatin County attorney said a lack of physical evidence, and doubt that sexual contact even occurred, were among the reasons why he did not file charges in a reported rape at a Montana State University fraternity.

In a letter that County Attorney Marty Lambert wrote to MSU police on Oct. 9, he said he declined to prosecute an MSU student who an 18-year-old woman thought might have raped her at the Pi Kappa Alpha fraternity, also know as the Pike House, on Sept. 13, 2013.

In addition to a lack of physical evidence, Lambert said a campus-wide alert sent about the two reported rapes that allegedly happened the same weekend possibly contaminated witnesses or led to the destruction or loss of evidence.

From an investigative standpoint, it would have been better if MSU had not sent out the notice until after witness interviews and evidence collection had been completed, Lambert said.

“There are many obstacles to a successful prosecution of this case,” Lambert wrote.

The rape report was one of two sexual assaults reported to MSU police on the same September weekend last year.

Police responded to a report of a rape at the Sigma Chi fraternity on Sunday, Sept. 15, at 1:24 a.m. A woman reported partying and drinking with new friends at the house, located at 722 S. Willson Ave. The victim was then reportedly taken into a bedroom and sexually assaulted by two unnamed men.

The same morning, at about 3:45 a.m., MSU police received a late report of a rape.

A woman said she had been partying with a man she knew on Friday, Sept. 13, at the Pike House, at 1321 S. Fifth Ave. She suspected that she had been drugged and sexually assaulted.

After investigating, MSU police filed a request for prosecution in the Pike House case, that requested the county attorney investigate a male student for sexual intercourse without consent, a felony, and misdemeanor counts of negligent endangerment and unlawful transactions with children.

The letter detailing Lambert’s reasons for declining to prosecute the man was released to the Chronicle after the newspaper filed a request for confidential criminal justice information last week.

According to investigative details:

On Sept. 15, 2013, the girl, who was also an MSU student, went to Bozeman Deaconess Hospital for a sexual assault exam.

She said the night of Sept. 13, she had been drinking at the Pike House and didn’t recall much about what occurred, but believed a man had possibly drugged and sexually assaulted her.

During interviews with investigators, the girl and her friends said they were invited to the Pike House for a party.

At the house, the girl said she had four beers shortly after arriving at about 7:30 p.m.

Around 10 p.m., the girl said she drank three “Jagerbombs,” a combination of Jagermeister liquor and an energy drink that a man gave her and her friends.

Witnesses reported that the two later went on the rainy roof of the Pike House, something the girl said she faintly remembered.

One fraternity brother told investigators he took pictures of the two but later deleted them.

The girl was later driven back to her dorm room by two other fraternity brothers, something the girl said she also didn’t remember. She did not have her underwear when she returned to the dorm.

In a text message exchange between the two the day after the party, the man wrote to her, “I’m sorry but I feel like we really need to talk about this.”

“It was a big mistake on my part,” the man continued. “We were both way too drunk and made some bad decisions.”

The sexual assault nurse examiner evaluated the girl about 32 hours after any possible sexual activity occurred. The nurse reported only a few minor scratches and bruises on her arms and legs. No date-rape drugs were found in the girl’s system.

The male student was never interviewed by police or by the school’s Title IX coordinator, who was conducting a separate investigation.

Lambert said in his letter that there was no physical evidence that the two ever had sex. And if they did have sex, they did it in the rain, Lambert said.

A fraternity brother told investigators that the man was “kind of bragging” about what had occurred, but said that he “could not finish,” a statement the defense would interpret to mean that he couldn’t obtain an erection and intercourse never happened, Lambert said.

And even if there was some physical evidence of sexual activity between the two, prosecutors couldn’t prove that the sex wasn’t consensual.

Lack of evidence of intercourse is “a significant problem for the state, one that could by itself create reasonable doubt if the case were charged and if it were to go to trial,” Lambert wrote.

Mental incapacitation would require proof that the girl was rendered incapable of controlling her conduct, but she was at least sufficient enough to get up and down from the fraternity’s roof, Lambert said.

The minor injuries the girl had could have been sustained from climbing on and off the roof, Lambert said.

If Lambert were to charge the man, he said that defense attorneys would “no doubt” blame the girl for drinking as much as she did and for reporting the rape about 24 hours after the incident.

“I fear her credibility would be harmed by these and other questions posed by (the man’s) defense,” Lambert said.

Lambert also declined to prosecute the man for misdemeanor negligent endangerment because the girl was not physically injured at the Pike house.

There was sufficient evidence to charge the man with misdemeanor unlawful transactions with minors for giving the girl alcohol. However, Lambert said he consulted with the girl who was worried that her identity would be disclosed if he was charged.

In the wake of the rape allegations, MSU administrators immediately suspended the two fraternities.

The school later sanctioned both fraternities. University investigations found the fraternities had violated the school’s alcohol policy, student conduct code and fraternity/sorority risk management policy.

Similar sanctions for both fraternities included prohibiting hard alcohol on the fraternities’ premises, requiring all members to participate in sexual assault prevention training and annually offering that training as part of new member education.

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