Marion man charged with sexually assaulting teen; rape kit wasn't tested for five years

WAUPACA - A rape kit tested five years after the evidence was collected led prosecutors to file charges this week against a Marion man accused of sexually assaulting a 17-year-old girl he had just met.

This is the second reported prosecution stemming from the testing of old rape kits by the Wisconsin Department of Justice. The first charges were filed in a Fox Crossing case in February.

Leroy R. Whittenberger, 49, was charged Monday in Waupaca County court with four counts of second-degree sexual assault with force in connection with the 2012 incident. He was ordered held on a $5,000 cash bond.

He is scheduled to be in court again on Tuesday.

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New London Police Chief Jeffrey Schlueter said Wednesday that his agency stored the teen’s rape kit after it was collected in 2012, because the case involved a known suspect and the Waupaca County District Attorney's office declined to file charges in 2014.

"The prosecution was denied and when they denied the prosecution, the case stopped moving forward at that point," Schlueter said. "The kit just wasn’t sent in because the case wasn’t moving forward."

Schlueter said charges were declined by Vicki Clussman, who is now a Waupaca County judge. The case is now being prosecuted by Department of Justice lawyers before Waupaca County Judge Troy Nielsen.

Schlueter said he was "glad it’s moving forward."

Clussman didn’t immediately return a message seeking comment. A court employee said she was on the bench. Waupaca County voters elected Clussman in April 2014.

Online court records indicate that he has been convicted of three misdemeanor sexual assault charges in Wisconsin since 2002.

In a 2001 Lincoln County case, he was convicted of fourth-degree sexual assault, downgraded from second-degree sexual assault of a child.

Whittenberger received 18 months of probation. He was also ordered to provide a DNA sample, undergo sex offender treatment and have no contact with female children.

He was convicted in two 2007 cases of fourth-degree sexual assault in Marathon County, according to court records. He was ordered to again serve probation.

The results of the 2012 rape kit came back in December of last year, and authorities matched the material to Whittenberger, according to the criminal complaint filed by the Department of Justice.

According to the criminal complaint:

Whittenberger met the girl's aunt when he applied for a job at her workplace. They exchanged phone numbers and started texting and calling, she told police.

The girl's aunt told him she was raising a 17-year-old girl and that she was concerned about the text conversations she was having with men. He offered to pose as a younger man and strike up a text conversation with the girl to get additional information. Her aunt gave him the girl's phone number and he ultimately told her that she had nothing to worry about.

A couple weeks later, he texted the aunt saying he wanted to talk to her about something. He came to her apartment and was allowed to stay there and sleep while she was at work. The 17-year-old was there with him.

Before the victim's aunt got home, the girl texted her to say that Whittenberger had left. When the aunt called him to ask why, he said he was tired, needed to sleep and had chores to do. But he called her later in the day and told her that he owed her a huge apology and had needed to talk with her but now couldn't.

Whittenberger told an officer that he was at the apartment with the girl but that nothing happened beyond him giving the girl a massage.

The victim said that after her aunt had gone to work, she and Whittenberger were sitting on the living room couch. At one point, they talked about a man who had been texting her, and he told her that that was actually him — an admission that made her uncomfortable because the man texting her had been sending her pictures of a penis. She said she didn't know what to do because Whittenberger was a friend of her aunt's.

She said she got up to turn on the television and that Whittenberger began to assault her when she bent over.

She told police in 2012 that he raped her and repeatedly forced her to perform and endure other sexual acts.

She said that the apartment was very small with thin walls so she didn't feel she could protect herself from him. She said she tried to kick him but felt overpowered.

He left when he learned her aunt was coming home, she said.

Note for survivors of sexual assault: The Wisconsin Department of Justice’s Office of Crime Victim Services offers help finding support resources and information about rape kits. Call 800-446-6564 or email info@byyoursidewi.org.