Prosecutors refused to charge sexual assault, even after rape kit DNA matched suspect

NEW LONDON - State officials intervened in a Waupaca County case and charged a man with sexually assaulting a 17-year-old girl after local prosecutors twice refused to take him to court, USA TODAY NETWORK-Wisconsin has learned.

The Waupaca County District Attorney’s Office in 2014 declined to charge Leroy Whittenberger, 49, with assaulting the teen two years earlier. The office again refused to charge Whittenberger this past February, despite new DNA test results and despite his two previous convictions for sexually assaulting minors.

In a Feb. 4 email to New London police officials, which the news organization obtained through an open records request, Assistant District Attorney Danuta Kurczewski said her office’s original concerns with the case remained.

Although new DNA testing questioned Whittenberger's claim to police that he never had sex with the girl in 2012, Kurczewski told police officials that the evidence didn’t erase doubts about the sex being consensual rather than forced.

Kurczewski didn't address charging Whittenberger with a lesser sex crime, such as exposing genitals to a child or sex with a child age 16 or older. In Wisconsin, offenders can face up to 3½ years in prison for the former and nine months in jail for the latter.

Waupaca County's elected district attorney in 2014 was John Snider. He held the office unopposed since 1986. Then voters in 2016 elected Veronica Isherwood, a longtime assistant district attorney in Waupaca and Portage counties.

Wisconsin Department of Justice prosecutors in April charged Whittenberger with sexual assault. Before taking the step, they were required to obtain Isherwood's approval.

Whittenberger faces four counts of second-degree assault with force. Each count carries a maximum of 40 years in prison. His next court appearance is set for June 5.

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New London Police Chief Jeff Schlueter said in April that he was glad to see the case moving forward. He referred questions about past charging decisions to local prosecutors.

Isherwood declined to discuss her office's decisions in the case, citing concerns that it could jeopardize the state's prosecution of Whittenberger. However, she said sex with a child age 16 or older is a misdemeanor and prosecutors can file charges only within three years of an offense. She also said evidence isn't the only factor in charging decisions. She also considers what pressures victims might endure from a prosecution.

"Just because I can charge something doesn’t mean I will," she wrote in an email to USA TODAY NETWORK-Wisconsin. "Sometimes victims are on shaky emotional ground, and I try not to do anything to exacerbate that situation."

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Whittenberger came to the attention of state prosecutors as part of a Department of Justice-led project to test thousands of old rape kits left in police and hospital storage rooms.

After the teen reported being assaulted in 2012, she consented to undergo an invasive medical exam to collect evidence for DNA tests. That evidence, known as a rape kit, was not sent to labs until state authorities requested it last year.

New London police records show the teen told officers in July 2012 that Whittenberger didn’t use a condom while he assaulted her. In December 2017, lab tests found DNA matching him in sperm collected from her body. Whittenberger had already submitted his DNA to state authorities for a previous conviction.

New London police say the teen’s rape kit was not tested sooner because Waupaca County prosecutors had refused to press charges. Assistant District Attorney Vicki Clussman, who is now a Waupaca County circuit court judge, wrote in 2014 that the teen's "statement lacks credibility." Clussman has not responded to requests for comment.

Kurczewski’s email to New London police earlier this year shows that Waupaca County prosecutors remained hesitant to file charges because of statements by an aunt who lived with the teen in 2012 and a detective. Both voiced suspicions that Whittenberger and the teen had consensual sex.

Police records show the aunt based her suspicions on the teen initially denying sex with Whittenberger and her view that the teen initially acted "unusual" for someone who’d been assaulted. The detective, Cheri Johnson, noticed inconsistencies in the teen’s initial stories to her, the aunt and the teen’s mom.

For example, Johnson noted the teen told her mom about sexual acts performed by Whittenberger that the teen hadn't previously reported to officers. Johnson also repeatedly asked the teen to explain why she hadn’t called 911 or tried leaving Whittenberger, prompting different answers each time.

Johnson wrote in a police report that the teen’s mother felt "this appears to be more of a consensual sexual encounter than a forced sexual assault." The mom told Johnson her daughter had a history of chatting with men on the internet and had other sexual contacts at the aunt’s home where the teen reported being raped.

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Department of Justice authorities have raised alarms in recent years over the handling of sexual assault cases by local officials across the state — specifically citing concerns that symptoms of trauma are mistaken for untruthfulness. Advocates for survivors of sexual assault say false reporting by victims is very rare.

Erin Thornley Parisi, executive director of the Rape Crisis Center in Madison, said it is common for survivors experiencing trauma to struggle with providing consistent stories after an assault. She said prosecutors should strive to inform judges and juries about the effects of trauma, and not deny filing charges because of it.

Prior to the New London teen's allegations in 2012, Whittenberger faced other charges of sexually assaulting children.

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Lincoln County prosecutors charged him in 2001 with sexually assaulting a 15-year-old girl. He pleaded guilty to a misdemeanor sex crime, and a judge sentenced him to 18 months of probation.

Marathon County prosecutors charged him in 2007 with sexually assaulting a 17-year-old girl. He again pleaded guilty to a misdemeanor sex crime and was sentenced to three years of probation.

New London police records don't indicate whether the teen or her aunt knew about Whittenberger's convictions when they were interviewed in 2012. Whittenberger and the teen’s aunt were friends through her work. On the day the teen reported being assaulted, Whittenberger had asked the teen’s aunt if he could rest at her home. He and the teen were then left alone for several hours while the aunt was at work.

The teen’s aunt told New London officers that she had trusted Whittenberger and regretted leaving him alone with her niece. She called it a dumb mistake.

Police records show Whittenberger refused repeated requests to meet with detectives about the teen’s allegations in 2012. But during one phone call with an officer, he claimed to only give the teen a massage while at the aunt's home.

Whittenberger's attorney, Tom Johnson, did not respond to requests for comment. Department of Justice officials declined to comment on the case since it is pending.

USA TODAY NETWORK-Wisconsin reporter Alison Dirr contributed to this report.