I recently wrote about a case out of Michigan where a prosecutor declined to file charges in a rape case by saying there was no element of force or coercion, despite the victim’s testimony and the corroboration of key parts of her statement by one of the accused parties. While it turned out that the alleged perpetrator’s statement didn’t amount to a confession, now making headlines is a case where an accused rapist did confess, and prosecution was still refused.
District Attorney Ken Buck told the woman he could not press charges against her attacker, despite the man’s admission to police that she said no. Buck said he must only prosecute cases in which he has a reasonable chance of convicting someone, and this was not one of those cases.
“A jury could very well conclude that this is a case of buyer’s remorse,” Buck said.
The woman, whose name is being withheld because the Tribune does not identify people who allege sexual assault, is 21 and from Colorado Springs.
She says she was drunk Dec. 1 when she called a former lover — she specified he was not an ex-boyfriend — to invite him to Greeley.
Although they used to have a sexual relationship, they hadn’t spoken in a year. There was a falling-out after she had an abortion, according to him, and after he made a pass at her younger sister, according to her.
Police did not release the man’s name because he has not been charged.
The man arrived and had sex with her, while she lost and regained consciousness and repeatedly told him no, she said. She told police she was pretty sure, but not certain, that she said no several times.
The man told police she said no a couple times, but he had thought she wanted to have sex with him. He said she was barely conscious when he finished, and that’s when he realized he made a mistake, according to the police report.
“He tried to wake the victim up to get her more conscious so he could apologize,” the report says.
Let’s go over all that again. The woman was drunk. She was drifting in and out of consciousness. Already, consent is impossible. Then, the alleged rapist admits that the woman said no. He even admits to needing to wake the victim up after the “sex” was over. And the last time I checked, “sex” with an unconscious person who has said no is rape on multiple counts.
But prosecutor Ken Buck indicates that this can be easily seen as “a case of buyer’s remorse” — perhaps the oldest misogynistic trope in the book, that women regularly happily and enthusiastically consent to sex, but decide that it wasn’t such a good idea in the morning and then ruin the poor man’s life by filing rape charges for completely unknown and incomprehensible reasons. The idea that a person who would so much as seriously think the term “buyer’s remorse” when referring to an alleged rape — let alone would use that phrase publicly with media — was allowed to be a DA is astounding and disgusting to me.
But this case was four whole years ago. Surely all instances of injustice and rape apologism/victim-blaming matter, but why bring up this one right now?
When Weld County District Attorney Ken Buck refused to prosecute a rape case five years ago, he probably had no idea that anyone beyond a small circle of people would care.
He learned otherwise quickly enough as the victim demanded a meeting with him (which she secretly — but legally — taped), organized a protest and made sure the media knew all about her plight.
Today, Buck is the Republican nominee for the U.S. Senate seat held by Democrat Michael Bennet. He leads narrowly but trails by double digits among female voters, many of whom believe his stances on abortion and other women’s issues are draconian.
The alleged rape victim is back and determined to be heard. She told her story to the Colorado Independent and provided the tape of their meeting (click here for a pdf of the transcript), in which Buck appears to all but blame her for the rape and tells her that her case would never fly with a Weld County jury.
“This case matters to the Senate race today because it shows his general view of women,” said Kjersten Forseth, who is interim executive director of ProgressNow Colorado and has also listened to the tape.
“This shows us how he views women and what he thinks their role is. It shows us that even when a woman is the victim of a rape he will not advocate for her. It shows that he is not a believer in women’s rights. He will not side with rape victims. This case is a statement on what his beliefs really are,” Forseth said.
“Do we want him making policy for the entire United States?” she asked.
Good question. From the transcript (which is only 4 pages long, and you can read for yourself by clicking the link above):
(118) KB: It’s the totality of the circumstance… prior relationship with him… talk to the experts who try rape cases and have not found a prosecutor yet who would …
(130) Victim: His statement says, “When he finished, … (reading police report)…tried to get the victim to wake the victim up so he could apologize.” How is that not “physically helpless, meaning unconscious, asleep, or unable to act” (legal code)
(139) KB: Because when you look at what happened earlier in the night, all the circumstances, based on his statements and some of your statements, indicate that you invited him to come to your apartment… that you told him how to get in …. It would appear to me and it appears to others that you invited him over to have sex with him. Whether that you, at that time, were conscious enough to say yes or no… ?
(147) V: So you’re telling me that previous sexual relations is enough to provide consent, and you’re telling me that because of me calling him and because of previous sexual relations and because I invited him up and told him how to get in, that invited him up for sex…
(153) KB: I’m telling you that’s what the circumstances suggest, to people, including myself, who have looked at it. Although, you never said the word yes, but the appearance is of consent.
V: Even though, he also stated that I told him no.
Wow. I hardly know where to begin. What we seem to have here is a victim who is knowledgeable and lucky enough to understand her rights, only to be faced with a DA who thinks those rights don’t mean shit. It’s clear that Buck is not just talking about misogynistic jury attitudes here, which are a problem, but about his own view of the case — when asked whether inviting a man with whom she has had prior sexual relations up to her apartment is enough to indicate consent in spite of the admitted presence of a “no,” Buck responds “I’m telling you that’s what the circumstances suggest, to people, including myself, who have looked at it.” (emphasis mine) And even if it was jury attitudes that were the problem, it’s a prosecutor and judge’s job to educate juries about the law, and what exactly terms like “rape” and “consent” mean. There’s most certainly no guarantee of a jury responding to that education, but failing to try in light of this set of evidence is unconscionable.
Now, let’s be real: I oppose Ken Buck’s candidacy for the U.S. Senate because he’s a Republican, and I oppose virtually every single thing that is in the Republican Party platform. I wouldn’t want him to win even if he didn’t think that women should be forced against their will to give birth to children conceived through rape, and even if he didn’t think that a rape case in which the accused admits his victim said no and was unconscious looks like “buyer’s remorse.” I imagine that few reading here would feel any differently.
But the fact that these last two things are true is scary. Even more so than just standard Republican viewpoints on their own. These things show a straight up hatred for women — no matter what lessons he may have supposedly learned from this episode. Sure we want public servants to learn and improve, but figuring out that maybe women are people after you’ve already dramatically impacted and actively harmed women’s lives on the job just isn’t good enough. Especially when his current policy stances continue to show such little regard for women’s lives now.
Which is all to say that if you live in Colorado, now might be the time to get out there and start campaigning.