Whitman County prosecutor details reasons behind not prosecuting rape case

PULLMAN – Whitman County Prosecutor Denis Tracy stood by his office’s decision not to prosecute a former Washington State University fraternity member accused of second-degree rape during an interview this week with the Daily News, where he elaborated on the reasons behind his decision and provided further details about the case.

The interview comes on the heels of Pullman Mayor Glenn Johnson and other Pullman residents expressing their frustration with the prosecutor’s decision to decline moving forward with the case despite the Pullman Police Department’s recommendation to do so.

The alleged rape occurred following a party in September 2016 at the Delta Upsilon fraternity at WSU.

Referencing court documents, Tracy said there are many facts about the case the public should be aware of that led him to his decision.

Tracy said the 18-year-old woman who reported the rape arrived at the fraternity at about 9:30 p.m. and took six to eight shots of alcohol before 11 p.m. Shortly after consuming the alcohol, witnesses at the party reported seeing the woman kissing and engaging in “heavy petting” with a man for more than an hour, during which time the woman received numerous hickeys on her neck.

The woman’s friend, who also attended the party, reported the man left at about 12:30 a.m. and the woman slept in the fraternity’s sleeping porch for about two or three hours.

Tracy noted the effects from one drink are expected to wear off each hour.

At about 2:30 a.m., Tracy, continuing to cite court documents, said the woman woke up and attempted to join a group of people playing drinking games. He said while it is unclear, the woman may have taken another shot of alcohol at this time.

The woman reportedly groped at least two men and began stating she wanted to have sex after waking up. Tracy said witnesses said the woman allegedly reached her hand down the shorts of a man she later accused of raping her and fondled him. After the man left, the woman reportedly groped another man who was sleeping in the room, according to witnesses. She was soon asked to leave the party by a fraternity member.

When the woman said she was too drunk to go home, the fraternity member, according to Tracy, agreed to allow the woman to stay and escorted her to the media room and told her she could sleep there. A camera in the fraternity’s hallway shows the woman walking steadily and without assistance into the media room at about 3 a.m.

Video surveillance shows the man accused of rape entering the media room about 15 minutes later. He is seen leaving the room at about 5:45 a.m.

At 6 a.m., the surveillance video shows the woman leaving the fraternity, Tracy said.

While the woman told police she talked to the suspect as she exited the front door of the fraternity, video surveillance does not show her talking to anyone. The woman also told police that prior to going to the media room, a man had choked her in the hallway. She said she escaped after she kicked him in the genitals and ran away in “terror” before hiding in the media room, Tracy said. She reported she fell asleep in the room and when she woke up, the man was raping her.

Video surveillance of the fraternity did not back up the woman’s claims of being choked or “running in terror,” Tracy said. The media room was not under video surveillance.

When the woman returned to her apartment, she reportedly told her roommate she had been raped and that the marks on her neck were from being choked by a man at the party.

“She irrefutably was not choked,” Tracy said, adding doctors found the marks were consistent with hickeys.

While area universities teach their students to be particularly careful when alcohol and sex are involved, Tracy said, Washington state law defines second-degree rape as when a victim is incapable of consent due to a mental incapacity – the inability to understand the act or consequences of engaging in intercourse.

“Could she understand what happened? That is the legal test,” he said.

He said a witness in the media room heard the woman respond positively to the interaction, which he said indicated active, willing participation on the woman’s part.

“No reasonable jury could be convinced beyond a reasonable doubt that the suspect was guilty of rape in this case,” he said.

Johnson said he met with Tracy on Wednesday to discuss the decision not to prosecute.

“On this case, after Denis explained the circumstances, I understand where they are coming from,” Johnson said.

Tracy said after reviewing the evidence, the woman also agreed with his office’s decision not to prosecute the case.

He said it is his job as prosecutor to pursue cases he believes can be proven beyond a reasonable doubt – a much higher standard of proof than probable cause, which is the degree required of police.

Tracy said it took the PPD 16 months to investigate the case and another eight and a half months for the prosecutor’s office to conduct its investigation and review. More than two years after the woman reported the alleged assault, the prosecutor’s office issued its determination.

Tracy said the case should have been reviewed in a more timely matter, and his office is taking steps to ensure future cases are handled quicker.

“The eight-and-a-half-month period was too long, and all I can do is apologize to (the woman) that it took so long for my office to decide. It should not have,” Tracy said.

Tracy said with the #MeToo movement, he has seen the public become more aware of sexual assault cases.

“Scrutiny of these cases is a very good thing,” he said.

In September 2016, five days after the allegations surfaced, the WSU Interfraternity Council held an emergency meeting and voted 23-1 to suspend the chapter, partly because of the sexual assault allegation and partly because of fraternity members supplying alcohol to minors. The chapter was also suspended by its national headquarters at the meeting.

Delta Upsilon is still suspended from the university and will remain unrecognized until at least January 2021.