The call went out at 10:31 a.m. March 22. Within 10 minutes the courtroom filled with supporters on both sides eager to hear the verdict. Six officers in uniform lined the back walls, two in plainclothes. Everyone sat nervously awaiting the jury’s return. Some prayed, others held hands in silence staring at the jury room door.
After a three day trial and less than four hours of jury deliberation, former University of Idaho student Jesse Vierstra was found guilty on one count of felony rape. The room was split — one side filled with relief, the other burst out in tears, uncontrollably sobbing.
What started in October 2012 was finally over.
But the question still remained — Vierstra had faced two prior accusations of sexually motivated battery against him during his time at UI, both dropped to misdemeanors and eventually dismissed. He paid $240 plus $137.50 in court costs.
Michelle Evans, senior deputy prosecuting attorney for Latah County, said the issue doesn’t lie with prosecution, but with Idaho law.
“It (Idaho law) certainly limits what we can do,” Evans said.
Latah County Prosecutor Bill Thompson said when it comes to sexual assault laws, Idaho’s are antiquated.
“Across the border in Washington, they can prosecute different types of sexual assault to fit a whole variety of sexual assaults,” Thompson said. “Idaho doesn’t have sexual crimes, just lack of consent. We have to prove either force or threats of force or that the person is incapable of giving consent because they are unconscious, for example.”
Thompson said as the prosecution, they have no control over Idaho statutes, which can be frustrating.
“Idaho sets rules for us and we have to screen cases based on limitations the legislature has put on whether it’s criminal or not, which is very frustrating for us because it’s easy to see … that if somebody has sex intentionally with a person and the other person didn’t consent, that’s not right,” he said. “But it’s not necessarily criminal in Idaho.”
In cases such as Vierstra’s, forcible rape needs to be proven. This includes proving there was penetration and resistance that was overcome by force or violence. But Idaho statute does not define resistance, which Evans said can be an issue.
However, on April 1, in the State of Idaho v. Russell Jones, the Idaho Supreme Court revised the definition of resistance.
“Given the plain language of Idaho’s forcible rape statute and Idaho’s well-established case law regarding resistance, we hold the statute does not require that rape victims resist to their utmost physical ability and that verbal resistance is sufficient resistance to substantiate a charge of forcible rape,” according to the court’s opinion.
Chief of Police David Duke said this will set the precedent for further rape prosecutions.
Despite this recent definition revision, Thompson said refining the rape statute isn’t something he sees happening in the future. This is especially due to the predominately conservative male legislature, which is not a receptive forum for the kinds of changes they need.
“Sex crimes are uncomfortable for people to deal with,” he said. “No one likes to talk about what happened to them sexually, they are uncomfortable even making reports.”
When reports are made, it’s even harder to get a conviction.
Thompson said each case is driven by its own unique facts.
“I can remember over the last handful of years, two cases where I got rape convictions. One was a court trial where just the judge heard evidence, the other a jury trial,” he said. “The majority of sexual assaults are resolved in plea negotiations, but really the strength of the case rest on its exact facts.”
Evans said recently she’s tried two rape cases — aside from the Vierstra case — one in December where the accused was acquitted.
“Before that we had a rape case where the girl was unconscious and somebody walked in on them and the jury still didn’t find he committed rape, they found attempted rape,” Evans said.
Aside from changing legislation, Evans said the key to a successful conviction lies in the report. She said victims need to report early, get a medical evaluation and help the police preserve evidence.
Duke said the delay in report, which can lead to a lack of physical evidence to collect, is what inhibits their ability to prosecute rape cases. He said this is the case with the first two reports made against Vierstra in August 2011.
Duke said the two reports were made about a week after the incidents occurred.
“Usually there’s a delay when an acquaintance rape is reported, when it’s a stranger it’s usually reported immediately. But there are very few of those in the city,” Duke said. “When evidence can’t be collected, you have to go completely on what was said to us without a basis for facts.”
He said without physical evidence — such as a medical exam — the reports can be hard to corroborate.
“Sometimes there are witnesses, but when there are only a few people involved, that’s when credibility comes in — whose statement to believe,” he said.
With Vierstra’s case, as the first two reports were dropped down, Thompson said this is when the university’s involvement can help.
“The university will almost always look to see if there is student disciplinary action they need to address,” Thompson said. “It’s not unusual for those cases that don’t meet the element of criminal charges that the university will impose its own sanctions.”
He said because UI has lesser standards to prove misconduct and a broader definition, they can take action on the victim’s behalf.
“So at least there’s some consequences to the person and more importantly a degree of protection for the victim,” he said. “The university is a great asset and an important part of overall picture of how these cases are dealt with.”
Dean of Students Bruce Pitman said in this specific case, UI took the action that was available to them. This includes cooperating with the Moscow Police Department and their investigation, as well as action through the student code of conduct system.
Although Pitman said he could not comment on the specific action taken against Vierstra, he said he is pleased the case was resolved in the court system and hopes it will encourage other victims to go through the formal processes.
In general, Pitman said UI has a three-step process for handling sexual assaults at the university end.
“We provide support — counseling and medical. We also as a part of that make sure they are connected to other resources such as ATVP,” he said. “We always encourage the student to pursue legal remedies and we also have responsibility under Title IX to look at the situation broadly, even if the victim does not want formal action, to see if there are any continued risks to the community and attempt to reduce or eliminate those risks. So we did that and we do that.”
Pitman said in some cases action may be removing someone from the residence halls, or making sure there is no contact in classes on campus while the investigation takes place.
“Whether the victim wants that kind of direct intervention or not, we have an obligation to community,” he said. “If the victim is willing to talk to police then we help make that connection.”
As for the first two alleged victims who accused Vierstra of rape, Thompson said they are a prime example of the limitations of Idaho law.
“We can sit here and say what that guy did was rape — the common sense meaning of rape — but under the definition that the legislature has given to rape it didn’t meet the elements,” he said. “So those are two are great examples of the frustrations we run into where two victims are victimized and we don’t have tools to address it. Unfortunately, it’s not uncommon.”
Evans said for now she encourages victims to get help from the police, Alternatives to Violence on the Palouse and the Women’s Center. But overall, victims need to help police preserve evidence and report the crime.
“Reporting as soon as possible is what will help the most,” Evans said.
Vierstra is currently awaiting sentencing, scheduled for 9 a.m. June 3.
Katy Sword can be reached at [email protected]