six eyewitnesses.
According to Belnap, Baker told her the kicker was this: “ ‘They said you were moaning, so you couldn’t have been passed out. We needed one more person to take your side and back up your story, and there wasn’t one. I’m sorry, but there is nothing we can do.’ ” The case was closed.
The Missoula police chief at the time was Mark Muir. In an interview with Muir broadcast in 2014 on
60 Minutes Sports
, correspondent Armen Keteyian asked why the case was never prosecuted. “A lack of ability to show it was nonconsensual sex,” Chief Muir replied, adding that it was an easy decision to make. He reminded Keteyian that Kelsey Belnap had told Detective Baker that the men with whom she had sex “would likely have believed” it was consensual. “How do you overcome that?” Muir said.
According to Montana law, Keteyian countered, a person who is physically incapacitated is incapable of providing consent. Given her extremely high blood alcohol level, he wondered, wasn’t Belnap clearly incapacitated?
“No,” Chief Muir answered. “Physical incapacitation differs from incapacitation of the mind.” The fact that Belnap “had blackouts does not, specifically, indicate that she was physically helpless at the time,” Muir asserted, implying that Belnap’s case would have been prosecutable if she’d been completely unconscious the whole time, but because she was intermittently semiconscious, her claim that she never gave consent wasn’t credible.
But the relevant law, Montana statute 45-5-501, doesn’t say a victim has to be “physically helpless” to be incapable of giving consent, as Muir incorrectly asserted. The law states that a victim is incapable of consent if he or she is “mentally defective or incapacitated”; “physicallyhelpless”; or “overcome by deception, coercion, or surprise.” And with a blood alcohol content of .219 percent more than two hours after the alleged rapes began, it’s hard to imagine that Belnap wasn’t mentally incapacitated to a significant degree.
During an on-camera interview with Missoula County Attorney Fred Van Valkenburg, Keteyian observed that when Belnap’s first assailant shoved his penis in her face, she told him “no” and tried to push him away. “Isn’t that enough?” Keteyian asked, referring to indication of an absence of consent.
Because Kelsey Belnap said nothing further to communicate her lack of consent as the sexual activity escalated, Van Valkenburg replied, he didn’t have enough evidence to take the case to trial. “This was not a prosecutable case,” he told Keteyian. “So I don’t have any sort of regret about not filing this. I don’t think we did anything wrong.”
Van Valkenburg, who was the head Missoula County prosecutor, neglected to mention the incriminating evidence he actually did have, such as the emergency room nurse’s notes and Detective Baker’s statement in his case report that when Kelsey Belnap’s initial assailant stuck his erect penis in her face, “she said something to the effect, ‘I don’t want to’ and pushed him away with her hands.”
Nor did Van Valkenburg acknowledge the substantial and well-documented injuries to Belnap’s vagina or the text messages to Belnap from Betsy Fairmont saying, “I am so sorry. I should have taken better care of you”—texts that Detective Baker downloaded from Belnap’s phone and submitted as evidence. Furthermore, the recorded statements the perpetrators made to Baker failed to explain how, exactly, Belnap expressed consent while facedown and semi-comatose, bent across a bed. The perpetrators’ statements also failed to address the implausibility of their claims that she eagerly engaged in painful, injurious sex with four men she’d never met before that evening.
The Missoula County attorney’s decision not to prosecute infuriated Kelsey Belnap and her family. Gang rape is an especially heinous crime. It seemed likely that the men
According to Belnap, Baker told her the kicker was this: “ ‘They said you were moaning, so you couldn’t have been passed out. We needed one more person to take your side and back up your story, and there wasn’t one. I’m sorry, but there is nothing we can do.’ ” The case was closed.
The Missoula police chief at the time was Mark Muir. In an interview with Muir broadcast in 2014 on
60 Minutes Sports
, correspondent Armen Keteyian asked why the case was never prosecuted. “A lack of ability to show it was nonconsensual sex,” Chief Muir replied, adding that it was an easy decision to make. He reminded Keteyian that Kelsey Belnap had told Detective Baker that the men with whom she had sex “would likely have believed” it was consensual. “How do you overcome that?” Muir said.
According to Montana law, Keteyian countered, a person who is physically incapacitated is incapable of providing consent. Given her extremely high blood alcohol level, he wondered, wasn’t Belnap clearly incapacitated?
“No,” Chief Muir answered. “Physical incapacitation differs from incapacitation of the mind.” The fact that Belnap “had blackouts does not, specifically, indicate that she was physically helpless at the time,” Muir asserted, implying that Belnap’s case would have been prosecutable if she’d been completely unconscious the whole time, but because she was intermittently semiconscious, her claim that she never gave consent wasn’t credible.
But the relevant law, Montana statute 45-5-501, doesn’t say a victim has to be “physically helpless” to be incapable of giving consent, as Muir incorrectly asserted. The law states that a victim is incapable of consent if he or she is “mentally defective or incapacitated”; “physicallyhelpless”; or “overcome by deception, coercion, or surprise.” And with a blood alcohol content of .219 percent more than two hours after the alleged rapes began, it’s hard to imagine that Belnap wasn’t mentally incapacitated to a significant degree.
During an on-camera interview with Missoula County Attorney Fred Van Valkenburg, Keteyian observed that when Belnap’s first assailant shoved his penis in her face, she told him “no” and tried to push him away. “Isn’t that enough?” Keteyian asked, referring to indication of an absence of consent.
Because Kelsey Belnap said nothing further to communicate her lack of consent as the sexual activity escalated, Van Valkenburg replied, he didn’t have enough evidence to take the case to trial. “This was not a prosecutable case,” he told Keteyian. “So I don’t have any sort of regret about not filing this. I don’t think we did anything wrong.”
Van Valkenburg, who was the head Missoula County prosecutor, neglected to mention the incriminating evidence he actually did have, such as the emergency room nurse’s notes and Detective Baker’s statement in his case report that when Kelsey Belnap’s initial assailant stuck his erect penis in her face, “she said something to the effect, ‘I don’t want to’ and pushed him away with her hands.”
Nor did Van Valkenburg acknowledge the substantial and well-documented injuries to Belnap’s vagina or the text messages to Belnap from Betsy Fairmont saying, “I am so sorry. I should have taken better care of you”—texts that Detective Baker downloaded from Belnap’s phone and submitted as evidence. Furthermore, the recorded statements the perpetrators made to Baker failed to explain how, exactly, Belnap expressed consent while facedown and semi-comatose, bent across a bed. The perpetrators’ statements also failed to address the implausibility of their claims that she eagerly engaged in painful, injurious sex with four men she’d never met before that evening.
The Missoula County attorney’s decision not to prosecute infuriated Kelsey Belnap and her family. Gang rape is an especially heinous crime. It seemed likely that the men
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