Updated 6:10 p.m., March 5
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 that they say defames the woman.
Emily Borchardt is one of eight plaintiffs who filed a class-action lawsuit against the city and county, arguing 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 was not prosecuted. Montford then spent more than half an hour sharing explicit details of the case without Borchardt's permission. Montford also made claims that don't 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.”
Borchardt never says the sex was consensual in the police report, which KUT obtained, or in her two-and-a-half-hour recorded victim statement.
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 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 did indeed make the phone call to McCracken. She said she wanted to give the family some level of comfort, but that 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 strangled, abducted and raped in January 2018. She said she thought she and her boyfriend were in a rideshare 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 then said a man in a second room told her he would protect her, but ended up raping her repeatedly for the next 11 hours.
The man who allegedly raped Borchardt in the second room told police he did not know her and consented to a DNA test. The results showed sexual contact.
Borchardt said Goddard told her 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 to survive.
Borchardt told KUT last month she didn't trust the police and prosecutors from the moment she first 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."
A day after this story was published, Travis County District Attorney Margaret Moore said she had read the transcript of the phone conversation and that she believed the “allegations of impropriety are unfounded.”
“I realize that Ms. Borchardt and her family are deeply traumatized and in much pain,” Moore said in a statement sent to KUT. “However, I think it is important for the public to understand that Ms. Montford believed she was providing information to Ms. Borchardt through an intermediary acting on Borchardt’s behalf."
Borchardt, who had been 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.
This post has been updated with a statement from District Attorney Margaret Moore.
Correction: An earlier version of this story stated Moore replied two days later; it was only one day.