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Tuesday, March 5, 2019 by Nadia Hamdan
Sexual assault survivor accuses Travis County prosecutor of lying about her case
Lawyers for a woman who says she was sexually assaulted in Austin are asking a court to force Travis County prosecutors to answer questions and provide evidence after learning of a prosecutor’s phone call they say defames the woman.
Emily Borchardt is one of eight plaintiffs who filed a class-action lawsuit against the city and the county, arguing that officials inadequately handled their rape cases because of their gender.
In a court filing in Nueces County on Monday, lawyers asked for depositions from the three prosecutors on Borchardt’s file: First Assistant District Attorney Mindy Montford, District Attorney Margaret Moore and Assistant District Attorney Mona Shea.
In September, Montford spoke on the phone with Dawn McCracken, her former sister-in-law and a family friend of the Borchardts. The conversation was recorded and provided to KUT. (Texas is a one-party consent state, meaning only one party needs to agree to a conversation being recorded.)
During the call, McCracken asked Montford to explain why Borchardt’s case had not been prosecuted. Montford spent more than half an hour sharing explicit details of the case without Borchardt’s permission. Montford also made claims that do not match the statement Borchardt filed with police. More than a dozen times on the call, the assistant district attorney said Borchardt had said the sex was consensual.
“I’m not allowed to talk about (this case) right now, but I wanted you to have it because you’ve got to have some perspective,” Montford told McCracken. “If (Borchardt) was saying it wasn’t consensual, that’s one thing. But she says it was consensual.”
In the police report that KUT obtained and in her two-and-a-half-hour recorded victim statement, Borchardt does not say that the sex was consensual.
Montford also alleged Borchardt might be lying about the assault. At one point in the conversation, McCracken asked why Montford’s account was so different than the one she had heard from Borchardt and her family. Montford said perhaps the police detective was not sharing all the details with the family.
“In a way, he’s probably trying to protect her to some degree and not share all this with her parents,” Montford said in the recording. “It’s almost better to have the family pissed off at us rather than disappointed in her, you know, and her decisions.”
Montford said Monday she had not reviewed the pleadings and could not comment.
In an interview with KUT last month, Montford confirmed she had indeed made the phone call to McCracken, claiming she wanted to give the family some level of comfort, but said she did not share all the details of the case because of the pending lawsuit.
“I’m surprised she recorded it, because I was being very sensitive to the victim and her family,” Montford said. “So, I wanted to not necessarily go into all the specifics that were in the report.”
Montford said she never read the full police report or spoke with Borchardt herself. Instead, she said, she relied on information conveyed to her during a meeting with prosecutor Shea and Austin Police Detective Dennis Goddard.
“I don’t doubt that they told me the right thing,” Montford told KUT. “My recollection is there were two individuals, and she said it was consensual (with) one. But I do want to go review it.”
When KUT asked why she believed the victim might be lying about her sexual assault, Montford said, “That’s what the detective told me.”
APD has declined to comment on the case because of the pending lawsuit.
Borchardt said she was abducted and raped in January 2018. She said she thought she and her boyfriend were in a ride share with two men, but they attacked her after her boyfriend was dropped off. She said she remembers a hand reaching around her neck and then waking up in a motel room with the men; one tried to rape her.
Borchardt said a man in a second room told her he would protect her, but he ended up raping her repeatedly for the next 11 hours. That man told police he did not know her and consented to a DNA test. The results showed sexual contact.
Borchardt said Goddard told her that her case was declined for prosecution because her injuries were not severe enough to prove force and because she “consensually took a shower and consumed whiskey” with her attacker. Borchardt argued she did what she had to do to survive.
Borchardt told KUT last month that she didn’t trust the police and prosecutors from the moment she reported the assault.
“I thought (Goddard) was acting really casual about everything,” Borchardt said. “It would just make me shut down and doubt myself, like, what if I did go crazy and this is my fault in some way? I just didn’t get any sense of compassion from him.”
Borchardt, who was a senior at UT-Austin, dropped out of school and now lives with her family in Corpus Christi.
Her lawyers say they hope officials will be forced to provide information that will help them determine the scope of a possible defamation claim.
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