A Long and Elusive Fight for Justice

Late in the day on Aug. 25, 1995, the phone began ringing in the office of Patricia Day Hartwell, director of the Rape Response and Crime Victim Center in Idaho Falls.

Her callers were some of the 23 women who had filed formal complaints against a local physician, Dr. LaVar Withers, accusing him of fondling their breasts and genitals during office exams.

For years, these women had watched as doctors, prosecutors, police detectives, church leaders and hospital administrators dismissed their claims. For years, they’d watched as authorities failed to stop Withers.

Now, finally, they were calling Hartwell with what seemed to be favorable news. They’d all received letters from the Idaho State Board of Medicine, reporting that “Dr. Withers had permanently surrendered his Idaho license to practice medicine . . . Dr. Withers will not practice in this or any state in the future.”

Hartwell is a watchful woman not given to wasting words; those she counsels like to say she doesn’t “try to fill up the air in a room.” Her family moved from Oregon to Idaho a century ago because Oregon was getting too crowded. She has a degree in criminal justice and lives with her husband, a nuclear physicist, on a 12-acre sheep farm north of Idaho Falls.

When a copy of the medical board’s letter reached her office, she studied it.

The board, she knew, was obliged to send this notice to all those who had filed formal complaints. But it wasn’t obliged to report such a “surrender” to the public, and it had not. Nor had it explained why Withers was giving up his license. The board’s letter to the 23 women, just six sentences long, provided no details.

That wasn’t enough for Hartwell. Not nearly enough, particularly since the medical board--in words literally true but patently misleading--was telling reporters it had taken no formal action against Withers.

Hartwell wanted authorities to hold Withers publicly accountable. She wanted this not just to punish the doctor, but also to validate the dozens of women who’d come forward with stories about his sexual abuse. Only then, it seemed to Hartwell, could these women begin to recover.

So on Aug. 28, taking matters into her own hands, she faxed a three-page news release to newspapers across Idaho. The state medical board has “permanently revoked” Withers’ license after 23 women filed sexual assault complaints, it reported. One victim has filed a civil suit against the doctor and Madison Memorial Hospital. Three have filed criminal complaints with the Rexburg police.

Although not quite accurate about the revocation, it was this release that finally forced years of whispers about Withers into the public arena.

Thus prodded, the medical board felt obliged to confirm that Withers had surrendered his license during a months-long investigation. The Rexburg police agreed that it had received three complaints. Madison County officials acknowledged the existence of a recently filed $255,000 tort claim against the hospital.

That claim came from a Ricks College student, Katherine Proctor. In it, she charged that Withers had repeatedly molested her during a two-day stay at the hospital in March 1995. She also made intriguing references to Withers’ enduring reputation. Complaints against Withers, she asserted in court documents, were “a matter of common knowledge” at the hospital. Madison Memorial possessed information that Withers had “begun sexually molesting patients not less than 17 years ago.”

Now, finally, Idaho newspapers had a story to tell.

A handful of women started talking to reporters, some openly, others anonymously. The phrase “booby doctor” made its first appearance in an Idaho newspaper. “Tell me,” one woman was quoted as asking, “how can so many women be lying?”

That, as it turned out, would remain an open question for months. The women’s accounts drew no acknowledgment from any public official. Withers’ victims, having finally lifted their voices, found themselves out on a limb. The Jefferson County prosecutor declared that “we can neither confirm nor deny” the newspaper reports. So did the state attorney general. So did the state medical board.

At Madison Memorial Hospital, director Keith Steiner--who has since declined comment--sounded as if he were just now hearing about Withers, although his hospital files contained at least four reports regarding the doctor. “I have just got to wait and see and get all that information and assess it,” he maintained. “We’re just like everyone else, we’re just hearing a lot of different things.”

Withers, meanwhile, was categorically denying all allegations as “totally untrue.” He insisted he hadn’t surrendered his license. He told reporters he voluntarily chose not to renew his license when it came up for renewal. “I decided long ago that when our youngest child is on her own, I would retire . . . I am very appalled and upset with the garbage that is being said. It’s a total devastation.”

Withers didn’t entirely get away with this stance; medical board members within days made it clear that they’d forced the doctor to surrender his license after finding merit to charges he’d sexually abused 23 patients. All the same, much still remained obscure.

The medical board wouldn’t elaborate about those charges. The state attorney general wouldn’t even acknowledge it was investigating Withers. Special prosecutor Steve Clark, the small-town lawyer who’d asked for the attorney general’s help, now claimed he was under a local judge’s “gag order,” although such an order didn’t exist in the court record, and the judge didn’t recall issuing one.

It is hard not to see in this resistance a certain circling of the wagons around a member of an inner circle. “The victims wanted to make a spectacle of LaVar,” Dr. Donald Bjornson, the medical board chairman, would say later. “How much spectacle can you make?”

It wasn’t just a power structure that was closing ranks against Withers’ accusers. So too was a community. A curious silence took hold in the Rexburg area. Phones rarely rang in the homes of those who’d spoken out against the doctor. Virtually no letters about the matter appeared in the Rexburg Standard-Journal. A reporter trying to measure public sentiment found little talk among townsfolk. Those few willing to comment denounced not the doctor, but his accusers.

“I just don’t think it’s true,” a businessman declared. “This stuff of 25 years ago, it’s not good.”

“A bunch of hooey,” insisted a secretary.

“Some of these women I know personally,” observed an 81-year-old woman, “and I think they asked for it, if these things actually took place.”

More than one explanation has been offered here for this type of response, as well as for the years of collective silence. The word “denial” is often mentioned. The fact that Rexburg is a small, rural, insular community is considered relevant. That a prominent citizen of Rexburg might be doing bad things, some suggest, threatened the town’s sense of itself. If the stories about Withers were true, “then the town is bad.”

Whatever the reasons, by the late fall of 1995 it had become abundantly clear just why Withers’ victims had felt so reticent to come forward. Not only their neighbors were backing away from them. So, too, were the prosecutors empowered with bringing Withers to justice.

State Considered Cases Unwinnable

On Nov. 15, deputy attorney general LaMont Anderson arrived at special prosecutor Steve Clark’s plain, cramped office in Rigby, south of Rexburg. Six months before, Clark, feeling overwhelmed, had essentially handed the case to the Idaho attorney general’s office. Now, Anderson was ready to share the results of the state’s investigation.

Anderson opened his briefcase, pulled out his flow charts, and spread them before Clark. Then he spoke. In the opinion of the attorney general’s office, Anderson declared, none of the cases were winnable; none were provable beyond a reasonable doubt.

Anderson listed a number of reasons: Problems with witness reluctance and believability; problems with statute of limitations; problems with proof. It was one person’s word against another, and as a doctor, Withers was supposed to touch patients.

Anderson had something else to tell Clark: The attorney general’s office was only offering advice, not making a decision. It wasn’t the state’s role to decide whether to press charges. That was Clark’s decision to make. Clark was the special prosecutor.

Clark felt nonplused, for this was barefaced backpedaling. Just the month before, Anderson had written Clark, saying if the attorney general’s office was “going to ultimately be responsible for making the charging decision in this case,” it would need to do its own “complete investigation,” which the county would have to pay for. The county had obliged; now the state, its wallet full, was ducking for cover.

Clark grew even more nonplused when, in the days following Anderson’s visit, attorney general Alan Lance started widely and publicly retailing a story to the effect that his office in fact had never intended to make a decision about Withers. Clark contemplated waving around the letter that proved otherwise, but decided not to. “The case has become a political football,” he simply told reporters. “I’m surprised they did what they did. . . . It was my impression it would indeed go to them.”

He knew what was coming, and he knew it would not be a high point of his life. On Nov. 28, all the same, Clark gamely met 17 of Withers’ accusers at the Rigby courthouse. He presented the matter as directly as he could: Based on the attorney general’s recommendation, he would not file charges.

As he expected, the room erupted. Some women were shaking with rage. Only one of the 17, it turned out, had been interviewed by state investigators, although the rape response center had provided a list of more than 70 potential victims.

One of Withers’ accusers, Sandy Brinton, rose with a question: “How can they say they did a thorough investigation, when they never talked to us?”

Then another, Tee Andrew, rose: “What do they need? Fingerprints?”

Soon a chorus of voices was bombarding Clark. “Where do we go from here? the women demanded. “Where do we go from here?”

Clark held up his hands, shook his head. “It ends here,” he said. “It can’t go further. It’s over.”

A Prosecutor Fills the Void

More than one reason can be offered for why, contrary to Steve Clark’s expectations, the Withers affair didn’t end there.

The angry persistence of one victim’s father, Michael Proctor, played an important role. So too did the more muted persistence of Pat Day Hartwell at the Rape Response Center. It certainly helped when the Boise-based Idaho Statesman, in mid-December 1995, published a package of stories about the Withers affair headlined “Nowhere to Turn.” It also mattered that Withers’ victims began meeting weekly, longing still for the validation that a public admission would provide.

By themselves, however, none of these forces were able to reopen the Withers case. The attorney general did successfully propose legislation that created a new crime category--sexual exploitation by a medical care provider--and extended the penalty and statute of limitations in such cases. But at a closed meeting last Feb. 12, Madison County commissioners demurred when Steve Clark, prodded by a handful of Withers’ victims, asked them to appoint a new special prosecutor.

Soon after, a state judge authorized the hiring, but would approve paying a new prosecutor only $50 an hour. The preferred candidate, wanting $75, turned down the job.

So, over the next two months, did a number of other Idaho attorneys. Withers’ accusers, who now totaled 94, literally could find no lawyer in the state willing to act on their behalf.

“I’m stuck,” Steve Clark revealed at the end of March. “I can’t find anyone. I don’t think I will.”

That remained true in mid April. “Withers case still has no prosecutor,” declared a Post-Register headline.

It was this headline, as it happens, that finally reopened the door to the Withers case. Sitting in his small home office in Boise, a tall graying lawyer named Dan Hawkley happened to be scanning his afternoon newspaper. The headline caught his attention.

Hawkley, 52, was a former assistant U.S. attorney in Idaho. During his tenure as a federal prosecutor, from 1983 to 1987, he’d been in charge of his region’s Organized Crime and Drug Enforcement Task Force. Before that, he’d been a chief prosecutor and judge for the Air Force in the Philippines, Guam, Okinawa, Japan and Korea. Now he practiced out of his home, doing what he called “a little bit of everything.”

That was by choice. He’d left the U.S. attorney’s office rather than foreclose on a farmer. The FHA, after all, had loaned the farmer more than he could possibly pay back out of his farm’s net profits; as soon as the feds made the loan, they’d in effect taken his farm.

Hawkley then was a Mormon stake president in his rural community outside Boise. He knew a number of neighbors in severe straits; he was dealing with lots of farmers’ spiritual health. “I feel like pressing for judgment against the federal government,” Hawkley informed the judge. That not being possible, another prosecutor took over the case, and Hawkley came home to resign.

With eight children to support, there was a risk. But his family supported him; his daughters gave him windmills for presents, since he was always tilting at them. They sold their home, moved to a much smaller one. “Regrets?” Hawkley liked to say when asked. “No more than twice a month. But I made a conscious decision. If you undertake to challenge the status quo, there are always risks.”

The biggest case he’d taken in private practice was a pro bono fight on behalf of two homeowners opposed to construction of a prison camp near their small houses. He’d finally had to drop that case just the other day.

Now he stared at the headline in his newspaper. He knew about the Withers case; he’d read the series of articles in the Statesman.

What the hell, he figured. He needed another windmill. Hawkley reached for the phone and punched in Steve Clark’s number.

‘Maybe I’m Not That Important to God’

Two things in particular struck Dan Hawkley when he took over as special prosecutor in the Withers case: One was the cynicism of Withers’ accusers. The other was their fear.

Everyone he called who was from Rexburg refused to meet him in their hometown. They all insisted on coming to Idaho Falls; most didn’t want their name disclosed.

“I had run drug strike forces,” Hawkley would say later. “This was the worst reluctance of witnesses I’d ever seen.”

Receiving the case file from Clark in late May, he could see at a glance that the attorney general’s office had interviewed only a few of those making accusations against Withers. He called Hartwell at the Rape Response Center. Why don’t you put out the word, he suggested. Why don’t you set up some interviews.

At the start of June, he drove the five hours from Boise to Idaho Falls in his battered 1989 Pontiac Grand Am, pulling off the road to doze when he grew tired. On June 3, he began talking to Withers’ accusers.

The first woman he met was Carol Hannah, who told her story of being molested 32 years before as her husband lay dying of cancer. Her abiding anger and disbelief about the new special prosecutor’s intent made Hawkley realize what a doctor’s brief groping could mean to a woman.

“Maybe I’m not that important to God,” another woman sighed. “Obviously I’m not important to that doctor. Obviously I’m not important to those now calling me a liar.”

“What’s really heartbreaking,” offered a third, “is that the authorities were told and failed to act. We felt so abandoned by our leaders, we felt they should care for and protect us. Why didn’t they? That’s such a puzzle.”

Cheerless distrust, recurring nightmares, insomnia--such stories filled each interview and weighed on Hawkley. This wasn’t big game, this wasn’t a big win: Hawkley could imagine the attorney general’s office reaching that conclusion after stacking this matter up with others. A boob-groping doctor; maybe some overreacting women; the need to allocate resources. If he’d been in their place, perhaps he’d have done the same.

He wasn’t in their place, though.

Publicly, Hawkley announced he would decide within two weeks, but he did so, he explained later, simply as a courtesy to the attorney general’s office. After just two days in eastern Idaho, he knew his course. They were going to court.

In Lillie Rasmussen, the 13-year-old who signed the first complaint back in March 1994, he already had one felony count. He also had a list of names that now totaled more than 100. His strategy was simple: From the files of the attorney general and the rape response center, he would cull those reports from the past five years that involved minors, or claims of genital insertion. Those were the ones that were felonies; those were the ones that might still fall within the statute of limitations.

It didn’t take Hawkley long to find them. On his first day in Idaho Falls, he heard from a nurse at Madison Memorial Hospital who wanted to remain anonymous. They met that night in a shopping mall food court.

“Did you ever see Withers touch inappropriately?” Hawkley asked.

“Yes,” she said.

“How many times?”

“You mean a day, a week, or a month?”

“Were any under 16?”

“At least 10.”

“Do you know any of their names?”

“One. My daughter.”

By his second day, Hawkley had learned of at least four potential felonies. They all had been sitting in the existing records, Hawkley would later point out. They all had been available to the attorney general’s office.

Hawkley held his tongue for 10 days, then--still being courteous--on June 13 revealed that, because of “new evidence” he’d uncovered, he would be filing charges against Withers. He was prepared, he added, to prosecute “anybody else” who may have helped cover up the doctor’s actions.

The complaint he finally filed in Madison County on July 2 did not lack in irony. It charged Withers with a single felony count of child sexual abuse--the abuse reported by Lillie Rasmussen more than two years earlier, the abuse that had been available to prosecutors since the investigation’s very start.

There are more felony counts to come, Hawkley warned Withers’ attorneys, pressuring them to accept a plea bargain. He wasn’t bluffing: The existing records soon were yielding incident after incident. One involved a mother who, through an open door before a nurse slammed it shut, saw Withers groping her young daughter’s breasts during a visit for treatment of a knee injury. Another involved a girl fondled every time she visited Withers for an acne condition. By late August, Hawkley had assembled 16 felony counts against Withers, involving five minors.

He met at the month’s end with one of Withers’ lawyers and shared everything he had. The surrender came just days later. Withers now was willing to accept the plea bargain proposed by Hawkley.

Withers, waiving the statute of limitations, would plead guilty to a single “umbrella” misdemeanor charge of battery spanning his entire 30-year career. He would admit to “intentionally and unlawfully touching numerous female medical patients” between January 1965 and May 1995.

By this means--in return for dropping the felony charges and a possibly lengthy jail sentence--Hawkley would gain for all Withers’ accusers the legal standing that the statute of limitations otherwise kept from most of them. They would all, finally, be acknowledged by a court of law.

There were 117 of them now. Hawkley made sure they knew about the coming sentencing hearing in Rexburg. When it began at 10 a.m. on Monday, Sept. 9, an overflow crowd, there since early morning, was spilling onto extra chairs brought in by bailiffs.

Walking into the packed chamber, Withers and his defense lawyers paled. They had expected these women to give the judge written statements, to be included in a confidential presentencing report; they had not expected them to rise in open court to tell their stories. Only now did it become entirely clear what Hawkley had wrought: He’d made it possible for any of the doctor’s victims to take the witness stand.

The deal is off, Withers’ lawyers declared. There’s no deal.

OK, Hawkley responded. Then we’ll go instead with the 16-count felony complaint. From a folder he pulled out that document and signed it on the spot.

“Give us five minutes,” said one of Withers’ lawyers.

Negotiations continued all morning, to no avail. Withers’ victims wouldn’t give up testifying; nor would they limit the number who spoke. When Hawkley circulated a sign-up sheet, 14 wrote down their names. What had started as a sentencing hearing for a misdemeanor guilty plea was about to become a preliminary hearing for a 16-count felony complaint.

Just before noon, Withers’ lawyers finally blinked.

“OK,” they said. “We’ll sign the deal.”

Procession to the Witness Stand

On came Withers’ victims. As a dozen women made their extraordinary procession to the witness stand on Sept. 9, most took a moment to look directly at a stone-faced, unblinking Withers. Most also chose to address Withers directly in their testimony.

They talked of feeling “too intimidated by the community” to speak out earlier. They talked of their sorrow and guilt for remaining silent, for “seeing someone abuse a daughter and not doing anything about it.” They talked of feeling betrayed by Withers and his medical colleagues, “who knew this was going on.” They talked of feeling hurt by people who “disbelieve what we experienced” and “criticize us for coming forward.”

Each woman, above all, urged Withers to acknowledge and apologize and ask forgiveness.

“I would like to see you admit to us that you did it,” Carol Hannah told the doctor. “Especially to these young women. . . . These young women deserve to have you admit to them what you have done. . . . “

“Doctor Withers,” Sherri Fullmer declared, “I don’t understand why you did it. . . . My heart goes out to your family. . . . I don’t wish you any harm. I do wish justice. . . . What you have done hasn’t been right. . . . Dr. Withers, I don’t understand why you would be willing to harm people. We have feelings. . . . Please know you have caused me hurt. . . . “

“Contrary to what others in this community may believe,” offered Sandy Brinton, “I am doing this because I and the others need to heal. We are placing the blame where it belongs, not on our heads anymore but upon the person who violated every moral code entrusted to him. . . . We need for Dr. Withers to acknowledge and take responsibility for his actions.”

Defense witnesses for Withers who followed these women to the stand found themselves fighting an uphill battle. When one compared the women’s experience with his own prostate and testicular exam during an annual physical, Hawkley rose eagerly to cross-examine. “Let’s assume that you had gone to the same doctor for a sore throat,” the special prosecutor asked. “And he had unzipped your pants and taken your penis out and held it in his hand, maybe rubbed it a little bit, and then walked out of the room. Would you have gone back?”

“No,” the witness allowed.

Then it was LaVar Withers’ turn. As he began to speak, it became apparent that his victims would not be getting all they sought from him. Although he’d pled guilty, although his lawyer had allowed “there is a factual basis for the plea,” Withers could not quite acknowledge doing wrong.

“I’m sure that many times in the effort to be diligent,” he told Magistrate Judge Keith Walker, “things were overlooked in terms of consent and explanation. I admit that and to anyone whom I offended, I would sincerely apologize. I have never had any intent of hurting anyone or taking advantage of anyone. . . . I can only again say I practiced diligently. . . . I apologize to anyone and everyone who has taken offense or thinks that I have wronged them.”

It wasn’t just the doctor’s victims who found those words lacking; they didn’t satisfy the judge either.

“Frankly,” Walker told Withers before sentencing, “I do not buy the account that these were routine examinations. I don’t know how anyone could. . . . What you’ve taken from the victims was most precious to them and can never be replaced. . . . I just think your conduct was disgraceful.”

Walker had no kinder thoughts regarding those around Withers who helped perpetuate 30 years of silence. “Religious leaders, some of them could have taken a step forward and they didn’t. Hospitals and the other doctors could have taken some steps . . . but apparently didn’t. The medical profession . . . I somehow wonder if it couldn’t have [acted] sooner. Law enforcement could have taken the first step. There are people that could have taken a step towards taking care of this problem earlier.”

By law Walker could render only a minimal sentence--30 to 60 days in jail, two years’ probation, community service, a $500 fine, $15,000 for investigative costs--but it didn’t matter to most of Withers’ victims. In their courtroom testimony and the judge’s words, they’d finally gained a measure of validation.

“It was good power over evil power,” said Lenise Egbert, mother of two teenagers who’d been fondled. “It was resolution.”

“My butt was sore,” said Lillie Rasmussen, who’d been sitting on a hard courtroom bench for nine hours, “and then it wasn’t.”

Verdict Leaves Community Divided

Despite such feelings of satisfaction, it can’t be said that the sight of LaVar Withers being booked into the Madison County Jail on Sept. 12 brought to this region unqualified recognition of all that’s happened these past years.

Indeed, in the hours following the doctor’s hearing, one of Withers’ lawyers made a point of telling reporters that his client “doesn’t stand convicted of molesting anyone, he didn’t admit doing any of those things.” Likewise, even as the attorney general’s office and Steve Clark rushed to congratulate Dan Hawkley, both emphasized that the second special prosecutor’s “new evidence” made all the difference. Local doctors and hospital personnel at Madison Memorial still flatly deny that patients ever complained to them about Withers.

Some of these stances can be seen as understandable acts of self-protection by those who remain vulnerable to civil litigation. One of Withers’ accusers, Katherine Proctor, is pursuing a claim against Madison Memorial. Another five women--represented by Hawkley, returned now to his role as private attorney--have filed a class-action lawsuit that could eventually aim beyond Withers.

It’s not only potential litigation targets, however, who resist. An insistent denial lingers throughout the Rexburg area, particularly among those of Withers’ long-time patients who never experienced problems with him, and can’t believe anyone else did. It is fairly common now to see letters in Idaho newspapers championing Withers as a “selfless good man” while denouncing his victims and the “professional counselors” who “encouraged them.” To an inquiring reporter, one Ricks College coed said, “I think it’s sad that that poor man had to go through all that crap.”

On the day Withers was booked into the Madison County Jail, the Rape Response Center in Idaho Falls received a threatening call from a woman who said “I’m so mad I could kill someone.” Even some good friends have turned away from those who testified. How could you do this? Withers’ victims are asked regularly. How could you pass judgment?

It is not hard to detect in Rexburg’s response the feelings of a community that believes itself under attack. More than a few citizens make a point of emphasizing that whatever happened, it wasn’t particular to Rexburg, and wasn’t because of Rexburg. By this they mean it didn’t happen--as some would have it--because Rexburg is a small insular Mormon town. “This could happen in any close-knit rural community,” people here doggedly insist. “This could happen anywhere.”

On this point, at least, Rexburg finds some common ground with the women who have brought it so much unwelcome scrutiny. Most of Withers’ victims remain devout Mormons, as well as committed members of their community. Yes, they agree, it could happen anywhere. What we have seen here is human failing, not Rexburg’s failing. People are human, people are imperfect.

So it is finally with considerable ambivalence that these women contemplate the outcome of their uncommon challenge. They talk of feeling empowered and released, yet they long still for Withers’ unqualified admission. They hold their heads high, yet flinch at the hostile comments from a community to which they still feel deeply bound. They denounce those who failed to stop LaVar Withers, yet proudly catalog the satisfactions of southeast Idaho.

They are, in all ways, still of the region where they dwell, yet they’ve been altered by their experience. They’ve seen something that their neighbors have not; they’ve seen an image of a community and of human nature that remains invisible to those about them.

“Our eyes have been opened,” Tee Andrew observed one recent morning. “It can be so uncomfortable to have your eyes opened.”