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January 18, 2020

10/5/2017 7:30:00 AM
In sexual assault case, truth is a hard-won thing
Welcenbach fights to clear her name, get justice

Richard Moore
Investigative Reporter

News analysis

These days, former Oneida County detective sergeant Sara Welcenbach is fighting battles on multiple, though connected, fronts - she continues to try to clear her name for what she says are trumped up charges of misconduct against her, and she is pursuing justice in the criminal prosecution of the man she says raped her in 2011, former Oneida County deputy Lee Lech.

In both matters, Welcenbach has and is facing a formidable adversary, namely, her former employer, the Oneida County Sheriff's Office, which is led by sheriff Grady Hartman.

In the first instance, in which Welcenbach, formerly known as Sarah Gardner, was accused of taking monies from the county drug unit she headed, Welcenbach's efforts have so far been mixed.

On the one hand, Hartman has succeeded in getting the county's law enforcement grievance committee to fire the detective sergeant. Though the committee did not find her to have committed a crime, and made no findings on some other charges brought by the county, it did find her guilty of conduct unbecoming an officer, making a false official statement or entry in official records, and other charges sufficient to terminate her employment.

Hartman and the department failed, though, to make criminal felony charges against Welcenbach stick. Those were dismissed on a prosecutor's motion.

In the second instance, Welcenbach decided to pursue charges of sexual assault against Lech after declining to pursue prosecution in the years following the 2011 alleged rape at an out-of-town training exercise. (The River News does not normally identify alleged sexual assault victims, but in this case Welcenbach has identified herself publicly, both in a federal lawsuit she filed against the sheriff's department and in her county grievance committee hearing, which she elected to have take place in open session.)

Lech has now been charged in Dane County, where the training event was held, with two felony counts, one for sexual assault and a second for attempted sexual assault.

Here, too, the sheriff's department has been adversarial. While the agency has no formal role in the prosecution, and while Hartman has said he and his department would fully cooperate with any criminal investigation of Lech, the sheriff's department has also publicly cast doubts on the veracity of the allegations, both in sworn testimony and in court documents.

To wit, the lead investigator in the internal investigation of the alleged assault, jail administrator Mark Neuman, said in sworn testimony that Welcenbach's statements about being sexually assaulted did not add up and did not make any sense.

"Based on the information I have and the statements that I received and the statement that Sara provided, based on all that and training experience and conducting sexual assault and/or other investigations, my conclusion based on that was that there wasn't enough evidence to even say that it actually took place," he said at Welcenbach's grievance committee hearing.

He also suggested that stories Welcenbach told co-workers were not consistent.

"There were four different people that were told about the story from her and four different stories," he testified.

The county, too, fought the release of the investigatory records related to the alleged assault on the grounds that the charges were unfounded. According to the Wisconsin Uniform Crime Reporting Definitions as of October 2016, a complaint is unfounded when it is determined through investigation to be false or baseless.

Baseless is not simply the lack of enough evidence to charge a crime but a determination that the elements required for the alleged crime were not met in the investigators' eyes.

"In other words, no crime occurred," the Wisconsin Uniform Crime Reporting Definitions states in its definition of unfounded, and that was precisely the position the sheriff's department maintained throughout its court efforts to keep the Lech investigation sealed.

The Lech case looms large in the misconduct case, for Welcenbach has filed a federal lawsuit against the county, in which she asserts that the charges related to missing drug-unit monies were retaliation for her initial refusal to pursue sexual assault charges against Lech.

At the time, Welcenbach maintains, Hartman was eager for Welcenbach to seek prosecution of Lech because he was looking for reasons not to promote the deputy, who was a leading candidate for a supervisory position. Hartman has denied that was the case.

Nonetheless, the sheriff put Lech on administrative leave after being told about the allegation by officers whom Welcenbach had confided in. Lech resigned, but, prior to his resignation, and after Welcenbach had repeatedly said she would not pursue the matter, the sheriff ordered Welcenbach to be interviewed about the alleged assault as a condition of her employment.

The department's adversarial approach to Welcenbach is further underscored by the agency's diferent reactions to the departure of the two officers in question.

In bringing the ultimately unsuccessful criminal charges against Welcenbach, Hartman edged close to a guilty judgment in a press release, declaring her to have violated the public's trust and to have "tarnished the badge of every sworn officer who has promised to protect and serve."

By contrast, Hartman did not issue a press release when Lech resigned but went to court to keep the allegations sealed.

"As the Court can see ... , the withheld documents involved an investigation relating to allegations that, if revealed, could very well ruin the reputations of two law enforcement officers," the department's brief in the case stated. "The allegations that were the subject of the investigation were determined to be unfounded. The witness statements involved multiple levels of uncorroborated hearsay."

Obviously, the judge in the case did not agree with the department's conclusion that the records showed the allegations to be unfounded, and neither did the Dane County district attorney's office, hence the two felony charges against Lech.

The sheriff also has not issued a press release about those charges, but, in Welcenbach's grievance hearing, Hartman did indicate what his reaction would be - he said he would be surprised if Lech were charged.

"I would be surprised because of the information," Hartman said. "I don't - I don't think it would be a particularly strong case."

The county's attorney, Lori Lubinsky, said she too doubted that any prosecution was forthcoming.

The foundation of the case

So, is the sheriff right? Just how strong a case might it be? Did the sheriff's department do its due diligence? Is it mostly "he said-she said" and unprovable hearsay? Or does Welcenbach enter the courtroom with a stronger case than many might suspect?

Ultimately, unless a plea deal is reached or the charges dismissed due to now unforeseen circumstances, a judge or jury will decide the legal charges, and new evidence from either side could come to light. But, because of the grievance hearing and the records case, there's already a large body of records and other evidence to analyze and consider.

On the one hand, a lot of it is indeed circumstantial. A lot of it is hearsay. There's no direct forensic evidence, either, at least that has come to light. And Lee Lech himself has yet to have his day in court.

On the other hand, as the judge presiding over the records cased observed, the testimony provided by the victim and by witnesses was remarkably consistent over a period of years and contained revelations that he said were unlikely to be made up. There's also evidence the sheriff's department never considered - such as a medical examination after the alleged assault, not to mention the lack of a motive to lie.

Let's take a look.

One significant place to start before examining the specific case is the general data on sexual assault allegations. That's an important starting point, for it likely colors how law enforcement approaches those who have claimed to have been assaulted.

According to the National Sexual Violence Resource Center, few women lie about such attacks, and many more resist reporting them at all. In 2012, the center estimated that 63 percent of sexual assaults are never reported to the police, primarily because many face scrutiny or encounter barriers when they do.

The center's review of the research found that, of those who do report assaults, the prevalence of false reporting was only between 2 percent and 10 percent: A multi-site 2009 study of eight U.S. communities and including 2,059 cases of sexual assault found a 7.1 percent rate of false reports; a 2010 study of 136 sexual assault cases in Boston from 1998-2007 found just a 5.9 percent rate of false reports; and researchers studying 812 reports of sexual assault from 2000-2003 found a 2.1 percent rate of false reports.

Of course, any individual case could be false, general statistics aside, which brings us to the specifics of the Welcenbach allegations against Lech, and in particular the county's investigation of Lech.

That entire investigation, at least as released to the newspaper, consists of a tape recorded interview with Welcenbach and interviews of five of her co-workers, all of whom she had confided in. The interviews took place between Aug 22, 2014, and Sept. 8, 2014, the day Lech abruptly resigned his position.

At that point, the internal investigation ended.

In its bid to keep the investigatory records sealed, the county portrayed those witness-victim conversations as uncorroborated hearsay - a fact Neuman underscored when he testified about four different witnesses - it was actually five - and four different stories.

Strikingly, however, the judge in the case, Vilas County circuit court judge Neal A. "Chip" Nielsen III, disagreed strongly with Neuman's assessment that the stories were different. In rejecting the county's argument in the records case, Nielsen said he found the stories to be anything but inconsistent.

"The department further argues (against) releasing documents when the allegations consist of uncorroborated hearsay statements or when the allegations are unsubstantiated, unfounded, or untrue, which are all statements made by the department in this case," he said. "I have a grave concern that if there is reason to believe these allegations are unsubstantiated, unfounded, or untrue, they are not found in the documents contained in (the sealed records)."

In fact, Nielsen said he didn't find the statements to be uncorroborated at all.

"[The records] include a statement by the alleged victim," he said. "It contains statements by witnesses that, of course, might be considered hearsay. I do not find the statements to be uncorroborated in that the statements are remarkably consistent and among witnesses, and to the extent they reflect hearsay or information learned from the alleged victim they do so temporally over the period of time from almost immediately following the event until relatively shortly before this investigation. That consistency is apparent in the documents."

As The Lakeland Times has reported before, the newspaper's review of the records also found remarkably consistent stories in the witness statements.

Motive lacking

There is also the matter of motive. So far, no one has suggested any reason Welcenbach might have to make the allegation up.

In his records' decision, Nielsen made just that point. In fact, he said, Welcenbach's own statement would hardly be the statement a liar would conjure up.

"Furthermore, the statement of the alleged victim herself contains information and revelations that would be unlikely to be contained in a confabulation because not everything reflects particularly well on her in the events," Nielsen said.

In addition, in the years following the alleged assault, Welcenbach did not act like a woman pursuing a campaign of defamation.

For one thing, she resisted giving any official statement after the alleged assault until she was ordered to do so in 2014. She refused to press charges. She confided in co-workers, but, as captain Terri Hook testified at the grievance hearing, those she told early on were her friends at the time, not merely co-workers, and she asked for confidentiality.

In some of the conversations she did not even bring up the subject first, but was prodded after her friends and co-workers noticed behavior that concerned them, behavior that many would consider the signatures of a traumatic event.

In Hook's witness interview with Neuman on Aug. 22, 2014, for example, Hook told Neuman she decided to question Welcenbach when they were sitting in her office talking in late 2011 or early 2012.

"I might have questioned her because she was acting different, however, I did make a statement to her that I thought she was acting different," Hook told Neuman.

At that point, Hook continued, Welcenbach told Hook about the alleged assault but said she was not going to tell anyone or press charges.

In an interview with another witness, whose name was redacted from the released records, the witness likewise indicated to Neuman that the witness approached Welcenbach, not the other way around, and she only confided in the witness after being encouraged to do so.

The witness said the witness heard crying as the witness walked down the hallway and so stepped in to find Welcenbach crying. The witness asked her what was wrong and invited Welcenbach to the witness's office, where, the witness stated, Welcenbach began crying uncontrollably - so hard that she could not talk.

"What's going on, as we have been friends for [redacted] years," the witness said to Welcenbach, according to the interview.

The witness said Welcenbach's answer was unclear and hard to make sense of, but at one point she said, "I would like to tell you but I can't."

The witness implored Welcenbach to talk because that would be the only way the witness could help her, and only at that point did she confide in the witness. Even at that point, she declined to name Lech as the alleged assailant.

Later in the conversation she did name Lech but again insisted, when the witness said the witness had to decide whether to report the incident, that she had come to the witness as a friend.

"You can't report this as a friend and as me being a victim," the witness reported that Welcenbach said.

"What do you need from me?" the witness finally asked.

"A friend," Welcenbach replied.

Welcenbach did approach a third witness to tell about the alleged sexual assault, but that occurred within a day or two after the alleged incident and the witness was described by Neuman as a "very close friend" of Welcenbach's, who ended up comforting Welcenbach at a later medical examination.

In a fourth instance, Welcenbach told now retired detective Shannon Murray three years later, in 2014, after becoming upset when told in a meeting with Hook and Murray that Lech might be promoted. Murray said Welcenbach wanted to explain why she had become so upset in the meeting but told Murray she must not tell anyone and, if the information got out, it would ruin her career, according to Murray's interview with Neuman.

In the fifth instance, Welcenbach volunteered the story to another co-worker in 2012, but again said she was going to do nothing about it and just wanted it to go away.

In four out of the five witness statements, the witnesses said Welcenbach was determined to have confidentiality and said she either did not want to press charges or wanted it to go away.

Again, as Nielsen said in court, the witness statements included similar details of the alleged assault, as retold to them by Welcenbach over a varying period ranging from late 2011 to 2014.

Finally, with regard to the interviews that represent the sum total of the county's investigation, Welcenbach's own interview, or statement, was forced, that is to say, Hartman ordered Welcenbach to talk about the assault as a condition of her employment, and Welcenbach steadfastly refused to talk without the order to do so.

"Sara told me if I didn't order her to talk she wouldn't talk and wouldn't cooperate with the investigation," Hartman testified at the grievance hearing.

She also told Hartman she was going to sue him.

In sum, Welcenbach never voluntarily reported the rape allegation. Rather, Hartman ordered her to talk to Neuman, and, when she did, Neuman concluded the statement didn't add up.

Medical and physical reaction

Beyond the consistency of the witness statements, and Welcenbach's reticence to talk about the rape and initial refusal to press charges, the records also reveal another potential source of corroboration: the detective sergeant sought medical treatment for injuries sustained in the alleged attack, and a third-party friend was present for that examination, according to both Welcenbach and that witness's interview with Neuman.

"[Witness] states shortly after this conversation with [Welcenbach] initially that [Welcenbach] was complaining that she was having pain .... and that [the witness] told [Welcenbach] that she needed to go to the doctor and have it checked out," Neuman's report of that witness interview asserts.

According to the statement, the witness then asked Welcebach if she wanted the witness to accompany her to the doctor but was told no. However, shortly after arriving at the hospital, an emotionally upset Welcenbach had a change of mind and called the individual to come to the doctor's office after all.

"[The witness] indicated to me that [the witness] went over to the clinic and [the witness] met [Welcenbach] and [Welcenbach] was crying and very upset," Neuman wrote in the report. "[The witness] indicated at the time of [redacted] contact, [Welcenbach] was in the exam room and [the witness] was in there with her. [The witness] further relates [the witness] was present when there was a conversation between the doctor and [Welcenbach] and that [the witness] heard the doctor tell [Welcenbach] that she has some bruising ..... [The witness] further indicates [the witness] was present when [Welcenbach] was conferring with the doctor and explained to the doctor that she had just been recently sexually assaulted."

No documents in the investigatory file indicate that Neuman made any attempt to review the medical details or corroborate the medical claims, made by both Welcenbach and her witness friend. The witness informed Neuman of the medical evaluation on August 27, 2014; Welcenbach did so on September 2, 2014; the investigation continued until Lech resigned on Sept. 8, 2014.

In addition to medical history, in her testimony before the law enforcement grievance committee, Hook reported that, when she informed Welcenbach about Lech's possible promotion in 2014, Welcenbach reacted like a victim would react.

"I wanted to see how she would react to that, and as soon as I said that Lee has a good contention of getting this job, she started crying and she pulled her legs into herself, and she started saying, 'He can't. He can't be in power. He can't be in power.'"

Under cross-examination, Hook explained why that reaction was significant to her.

"Because I work with sexual assault victims and I understand the things that they - how they try to protect themselves in situations like that," Hook testified. " ... She's trying to protect herself. She's pulling her body into herself to try to protect herself."

And yet, even so, Hook said at the hearing she still didn't know whether to believe Welcenbach's complete story or not. Part of the reason for that was, in the ensuing years, Welcenbach had continued to work well with Lech, Hook testified.

"Sara actually supervised Lee for part of that time, where they worked together in the NORDEG (the drug unit)," she testified. "Sara was the supervisor of the NORDEG, and Lee was one of the investigators in the NORDEG, and they worked together as if, to me, nothing had happened. They joked with each other. They went on search warrants together. They continued to act as if, to me - to me, I was surprised by how well they interacted."

Under cross-examination, Hook was asked if she questioned Welcenbach about that interaction. Hook said she had.

"She said she was trying to move forward," Hook testified.

"Right," Welcenbach's lawyer followed up, "because she wanted to put it behind her, right?"

"That's what she said," Hook testified.

Not everybody agreed with Hook's assessment of Welcenbach's relationship with Lech in the years following the alleged incident. One of the witnesses whose name was redacted and has not been subsequently revealed did notice a change in the way two interacted.

"Lastly, [the witness] indicates that since the event [the witness] has noticed there is some distance between [Welcenbach] and Lee and that they appear to be more distant than usual," Neuman's report of the interview states.

Finally, none of the witnesses - with the exception of Hook - questioned Welcenbach's story in their interviews with Neuman. For instance, the witness who had heard Welcenbach crying and who urged her to talk said the witness thought it all was real and was moved to periodically check up on her.

"[The witness] went on to state that the only thing [the witness] thought of was that in response to all that was said and how she was acting that in fact the incident was real and that it did take place," Neuman reports in his interview. "[Witness] further states from the time of the event up until the time this incident became known that [witness] would continually check on her in ways such as when she would go to conferences [witness] would call her and ask her if everything was okay."

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