Buck, the Republican nominee for the U.S. Senate seat now held by Democrat Michael Bennet, has steadfastly defended his handling of the 2005 case.
MotherJones spoke to the victim earlier this week and also spoke to legal experts who told them the case absolutely could have and probably should have been prosecuted.
Buck’s claim that the victim, who had invited the alleged rapist to her room, might have been suffering from “buyer’s remorse” has sparked national controversy. In an editorial defending Buck, the conservative Colorado Springs Gazette wrote that stories about the rape case were an attempt to “smear” Buck, since “typical” acquaintance rape cases “consist of ‘he said’ v. ‘she said’ and not much more.” But by that standard, the case Buck declined to prosecute was far from typical. The alleged rapist confessed to police and, in a taped phone call, confessed to the victim—and criminal law experts say those facts raise questions about Buck’s decision to forgo prosecution.
Buck has said he showed the case to prosecutors in Boulder County as well as to numerous attorneys in his office who all agreed the case could not be well prosecuted. Others shake their head at that contention.
“When I read the police report, I said, ‘Huh, this really isn’t a he said, she said case: They agree,'” says Michelle Anderson, an expert on rape law who is the dean of the law school at the City University of New York. “They agree that she was drunk, they agree that he knew she was drunk, they agree that she said no to penetration at least three times.” That sort of victim-suspect agreement is rare, Anderson explains. “The classic case of acquaintance rape would include two versions of reality,” she says. “Here, it seems that’s there’s one version.”
“This is the type of evidence [prosecutors] dream of,” says Laurie Levenson, an expert on criminal law at Loyola Law School in Los Angeles. “If you’re a defense lawyer, and your client says she said no and was resisting, usually you’re talking plea deal at that point. It doesn’t necessarily guarantee a slam dunk, but most [district attorneys] would love to have statements like this as a starting point in their prosecution. You almost always get the opposite.”
For Ken Buck, though, the facts of the case were “pitiful.”