Ken Buck's refusal to prosecute alleged rape an effort to make him seem insensitive to women
Update below: Late last month, Colorado GOP boss Dick Wadhams said Democrats' decision to attack Ken Buck with ads on issues like abortion shows that they're "intellectually bankrupt," since the voting public is clearly more interested in "the economy and taxes and spending."
But Buck opponents aren't letting up on related topics -- like his alleged insensitivity to a 2005 rape victim.
The Colorado Independent's Scot Kersgaard authored a story today on the case -- the first of three articles about Buck's "handling of rape cases as the Weld County district attorney and his stance on women's issues," according to a note at the end of the piece. The left-leaning site plans to publish these followups tomorrow and Wednesday, respectively.
However, the person who put Kersgaard in touch with the former University of Northern Colorado student in question was Kjersten Forseth, executive director of ProgressNow Colorado, a liberal advocacy organization that participated in a September 21 news conference intended to highlight Buck's opposition to abortion for victims of incest and rape.
Forseth confirms that she had been in touch with the 2005 incident's victim prior to the press event on the 21st. While speaking there, she even quoted from a 2006 Greeley Tribune article in which Buck explained that he'd decided against prosecuting in part because "a jury could very well conclude that this is a case of buyer's remorse."
What led to this conclusion? Buck laid out some of the obstacles of a successful prosecution in a meeting with the victim that was recorded; a transcription of the conversation is on view below. At the time, Buck said, "You had consumed a lot of alcohol. You had a prior relationship. According to him, you were naked from the top up when he came into the bedroom."
She had also called to invite the man to come over -- but both she and the man confirmed that she said "no" to sex on multiple occasions.
Prosecutors regularly have to make tough decisions about whether to take a case to trial -- and in Kersgaard's article, assorted representatives of the Greeley Police Department back up Buck's conclusion despite a report in which a detective wrote that he would be requesting a summons for felony sexual assault. But Forseth believes the victim "hadn't gotten a fair shake," and she was admittedly frustrated when media members attending the September 21 press conference didn't get in touch with her about the incident -- until Kersgaard did so some time later.
The recording hasn't been released thus far, Forseth says, due to it's iffy sound quality -- some parts of it are inaudible, as noted in the transcript -- and because some members of the victim's family don't know about the incident and might recognize her voice. But she agreed to speak with Kersgaard, and Forseth's glad she did, in part because she feels Buck's tone throughout the recording "is so judgmental. He was judging her from the beginning, and I think that was one of the things that infuriated me as a woman. I thought, I can't imagine being a rape victim and going into a DA's office and having someone treat me like that.
"Many rape victims speak about how the rape itself can be very traumatic, but sometimes going through the process of reporting it can make the trauma even worse -- and in her case, there appears that there was no sensitivity at all."
In Forseth's opinion, Buck's treatment of the victim is reflective of his "indifference" toward women -- "a disregard for what they go through." Moreover, she rejects Wadhams's argument that focusing on such topics during a period of serious fiscal upheaval constitutes an effort to distract voters from examining Buck opponent Michael Bennet's economic record.
"While these guys may be pretending to talk about jobs and the economy -- and I don't believe their solutions will do anything to revitalize the economy -- there's this hidden social agenda that we as women need to understand," she maintains. "Look at Amendment 62" -- the so-called Personhood Amendment supported by Kristi Burton, the face of a similar 2008 measure. "That would ban some forms of birth control, and these candidates are fine with it. And taking positions like that hurts women physically and societally and economically, because it controls a woman's ability to plan her own family.
"Ken Buck and some of these candidates nationally look at society as a whole and think the best place to be is back in the 1950s -- and the 1950s was not a stellar decade if you were a women, if you were a minority, if you were a homosexual. We shouldn't be looking back to that time. We need to be moving forward."
Page down to read the unofficial transcript of the aforementioned meeting, provided by ProgressNow Colorado:
Update, October 12: Also accessible on the next page is an additional statement by Forseth, who wants to make it clear that she was not trying to "shop around" the story of the victim in question. In addition, note that an audio clip from the meeting between Buck and the alleged victim has been made available to the Huffington Post; it's been edited to obscure the woman's identity. Learn more about it in the new post "Michael Bennet Welcoming Bill Clinton, Michelle Obama -- and President Barack Obama, Too?"
I would just like to be clarify that this story was brought to my attention by our researcher and I was very reluctant to pursue it because it concerns a victim of rape and who did not have closure. I brought up the quote of "buyer's remorse" at the press conference not to highlight the case, but instead to show Ken Buck's callousness toward women. It was not my intention to rehash this case in particular.
I talked to this victim months ago, and did not "shop around" this story to media about a rape Ken Buck refused to prosecute. Rather, I felt that in light of Buck's opposition to abortion or emergency contraception in the cases of rape and incest, that his "buyer's remorse comment" was reprehensible and demonstrates his views on rape and women in general.
The Colorado Independent missed this press conference, so we sent them the release and the article from the Greeley Tribune as follow-up. Scot Kersgaard contacted another person involved in the press conference and asked if we knew who the rape victim was. Scot was referred to me. I called the victim to get permission for Scot to talk to her and she consented to do so.
Meeting with Ken Buck
Present: Victim X, a 2nd male voice (unidentified), the victim's lawyer. Possibly also another assistant DA.
Man #2: Everything in the police report is all the information. It seems from my reading, based on suspect's statements, that this falls under (h) of 18.3.402, that Victim was in such a state that she was not able to give consent physically. It's Vic's desire to have the case proceed. We wanted to get your thoughts about it.
(95) Ken Buck: This is a case that is troubling to me. Troubling to Steve (ADA), the nature of a crime is on a such a magnitude.... We have looked at this from a lot of different angles. We have to fulfill our ethical obligation that this case would have an expectation of proof beyond reasonable doubt before a jury. That is in conflict with the law. "We may think we know who killed the Ramsey girl, but if we can't prove it, we can't bring a case forward." ... And that's where we're coming from with this decision.
Man #2: Is it the prior phone call that was made...
(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.
KB: He stated that in a phone call that you had with him later.
V: No, that's not what that says ... (reading police report). He stated the victim did say no, he does recall the victim rolling over and saying no. That's me saying no during the act, that's men not giving consent.
KB: Do you recall your answer to police officer in your first interview, the police officer asked if you said no, you said I don't recall."
(168) V: I said I'm pretty sure that I said no, but I cannot be 100% sure. And at that point, it was because I said I couldn't be sure that I had actually verbalized. I know that that I had done my best to say no but I couldn't be sure. I did push the suspect away, told him know, passed out." (reading from police report).
(175) Man #2: ...The thing that struck me about this, as opposed to some other cases that I've looked at, is "his recognition that he had done something wrong, almost immediately, and certainly by the time he was done. In my mind, that's what sets this apart from a he said, she said... his own recognition... recognizing that he made a mistake... trying to get her conscious enough to apologize. That was the thing that really struck home with me... His words against himself, might be enough to increase this to a reasonable likelihood..."
KB: Different people see differently, but I haven't come across a prosecutor yet that...
M2: I thought it was likely that at least there would be differing opinions. I don't know if it ever gets to a point where you take a vote or something.
KB: "There's only one vote." There haven't been any contradicting opinions... experts here... experts in other offices.
V: Unlawful sexual contact. If not sexual assault, (explains 4 requirements)
KB: I think the same level has to be met. he has to have entered apartment and engaged in an act... If we were going to charge him with something, it would be an all or nothing situation. Could a jury find a lesser charge, perhaps, but to me the decision is based on the overall facts. It's not a case where, unless we've included, we're missing a jurisdictional element or a minor element. It's either a sexual assault or it's not.
V: So, I'm just going to run through again what you're telling me that I'm saying: It does not matter that I told him no, it doesn't not matter that I pushed him away, and that he admits to all of this. Is that what I'm hearing you say?
KB: No, you're not hearing me say that.
V: I've heard from numerous people that this is moral, but not illegal.
KB: There is contradictory evidence over consent. The act of inviting him, appear to be consensual acts, then there are statements that appear to be indicate that there wasn't consent. That conflict is the conflict that doesn't give us the proof beyond reasonable doubt.
V: I appreciate you meeting with me. Anything else?
M#2: These are difficult cases... "before we do something further"
KB: when you say do something further, what to you mean
(250) M#2: we've talked about a motion to compel prosecution, and that's the only other option. Ultimately that's going to be [Name redacted] decision. But that's really the only option... Whether or not we're going to do that, I don't know. Incredibly high burden...
(255) KB: Be aware of something, if this, if you file this motion, it will be very public, publicly covered event. There are a lot of things that I have a knowledge of, that I would assume (name of possible suspect redacted) knows about and that they have to do with, perhaps, your motives for (unintelligible) and that is part of what our calculation has been in this.
V: I'm interested to hear more about that, my motives, for what this has been.
KB: You have, you have had HIS baby, and you had an abortion.
V: That's false, that's just false.
KB: Why don't you clarify?
V: I did have a miscarriage; we had talked about an abortion. That was actually year and a half ago. So...
(268) KB: That would be something that you can cross-examine on, that would be "something that might be a motive for trying to get back at somebody." And it would be a (unintelligible). And it's part of what we have to take into account whether we can prove this case or not. And there are a lot of things that, um, you know, for as why weren't not prosecuting the case. We've got to weigh all that, and it not something that I feel comfortable with, but something I have to be.
(274) V: I would be interested in you actually bringing that up with me, actually being honest with me as to why you're not willing to take this case. Instead of dancing around, you know, what you've told me because if there are other things, I would be interested in hearing them...
KB: I don't appreciate your inference that I'm not being honest with you. I'm taking the time to meet with you. I've had prosecutors review... I'm being absolutely honest when I say "Totally of circumstances, I don't believe that we can prove this case." That the...?
(280) V: So you're looking at the fact that I had a miscarriage with his child, and what else? Give me more information, because I'm really interested in knowing the totality.
KB: That's part of it. And part of it is, when you describe yourself as "bedfellows" and you did indicate that you were "bedfellows" and "it's hard to convince a Weld County jury that this wasn't consensual, when that is your label. So there are those kinds of factors. This office doesn't believe in (blaming the victim?) for the conduct of the case but, we do have to take into account what a Weld County jury sees in the relationship. You had consumed a lot of alcohol. You had a prior relationship. According to him, you were naked from the top up when he came into the bedroom. So, there are enough indicators or (indications?) that in my opinion make this impossible to prove beyond a reasonable doubt.
V: if we decide to take it to a judge, then this will be very public, and honestly I plan on making it public... Date rape is something that happens; it is against the law... I'm hearing that a jury won't buy it, but I'm prepared to have that conversation as to why... Is that it? Thank you very much.