FARGO-When Brooke Sauskojus woke up to find her friend sexually assaulting her, she was so shocked she couldn't move. She pretended to be asleep. She didn't contact police for months.
When she did come forward this summer-both to law enforcement and in public, posting on Facebook about the experience-it quickly led to a conviction against her attacker, former Fargo concert promoter and writer Christopher Hennen.
But like a case in 2015 that prompted protests here, Hennen's guilty pleas to low-level misdemeanor charges, one involving another woman, drew a sentence with no jail time, no supervised probation and no requirement to register as a sex offender.
Though she agreed to the deal when prosecutors consulted her, the sentence didn't seem fair to Sauskojus, who agreed to be identified publicly for this story. The punishment didn't fit the crime, she said.
"Was it a 'slap on the wrist' sentence for the emotional and physical distress and pain he has inflicted, and will continue to inflict, onto the survivors for their entire lives? Yes. Justice was not served," Sauskojus said.
The case shows the gap in North Dakota's sex-offense laws that some advocates and prosecutors say needs to be fixed. For many allegations of unwanted sexual contact involving adults, there's no flexibility for prosecutors between a charge that's a Class A felony and one that's a Class B misdemeanor. An A felony has a maximum sentence of 20 years behind bars. The maximum is 30 days for a B misdemeanor, North Dakota's lowest-level criminal offense, the same level as being a minor in possession of alcohol.
Chris Johnson, executive director of the Rape and Abuse Crisis Center, wonders whether any sexual violation is worth as little as a B misdemeanor.
"As a society, we really need to wrestle with that question," Johnson said.
No middle ground
After pleading guilty in September, Hennen, 40, received a 30-day suspended jail sentence, unsupervised probation for 360 days and was ordered to pay fees of $250. He hasn't returned messages seeking comment on the case.
In that case, the charges were a B misdemeanor from the start. The protests last year were after a case initially charged as an A felony was eventually resolved with a plea deal to two misdemeanors.
Taylor Jerrod Pederson, who sexually assaulted Minnesota State University Moorhead student in Fargo after a 2013 sorority formal, was sentenced to a year of probation, no jail time, and no requirement to register as a sex offender.
Protesters called the sentence "disgusting" and "unacceptable." But it's not all that rare for a serious felony rape case in North Dakota to end in a plea deal to misdemeanor charges.
From 2010 to 2015 in North Dakota, a serious felony rape charge-Class AA or Class A-was eventually reduced to a Class B misdemeanor at least 49 times, according to state data.
That's nearly 8 percent of the 633 total convictions in sex-crime charges that were initially Class A or AA felonies.
Fourteen of those 49 instances were in Cass County.
"We don't have middle ground," said Assistant Cass County State's Attorney Leah Viste.
More serious sex charges exist within that range, but they're only specific to certain situations-for example, sexual acts against hospital patients or prison inmates or as part of a hazing or gang initiation, and conduct including window peeping and indecent exposure.
Viste said while she wasn't speaking on behalf of her employer or the North Dakota State's Attorneys' Association, she'd "personally" like to see more options available to prosecutors when charging out sex crimes.
Tristan Van de Streek, the assistant Cass County state's attorney who prosecuted the Hennen case, said both victims agreed to the level of charge, realizing that delays in reporting the assaults and lack of physical evidence would have made felony charges difficult to prove.
"I'm not getting involved in a victim-blaming," Van de Streek said, "but these cases have to turn on the facts."
Cass County State's Attorney Birch Burdick said the charges in a sexual assault case depend on those facts and the potential outcome.
"An outcome which is sure, although not always completely satisfying, can be better than trying the case and not getting an outcome at all," Burdick said.
In the separate cases Sauskojus and the other woman brought against Hennen, each had been out drinking with him and other friends and said they returned to their apartment, passed out or fell asleep and awoke to find their underwear and pants down around their ankles and Hennen touching them.
Sauskojus reported the assault on July 21, 2016, a little more than three months after it happened. She told police Hennen had his fingers inside her and his genitals exposed when she woke up.
According to the police interview, Sauskojus said she later decided to report the assault in order to come to terms with what happened to her.
The second woman reported her assault two days after Sauskojus, and said it actually happened in March or April of 2015. She told police she reported it because she'd learned of the other, similar incident.
In her case, the woman said there was no penetration, but she awoke to find Hennen lying on top of her, with his tongue in her mouth, and her pants pulled down.
Sauskojus said even though her case didn't end as she'd hoped, she knew she had to report what happened to her.
"If me coming forward, no matter what the social or legal outcome was, could prevent someone else from falling victim to him, I felt I could find some peace," Sauskojus said.
When speaking about the Hennen case, Van de Streek referenced a North Dakota Supreme Court decision from 2007, in which the high court threw out a rape conviction against a Fargo man. In that case, the court ruled 3-2 that there wasn't enough evidence to find that Alexander Vantreece forced a woman he was staying with in Fargo to submit to a sexual act.
According to court records, the 26-year-old victim, a vulnerable adult, was staying in a home where Vantreece also was staying in 2005. She told police she pretended to be asleep when Vantreece came into the room, tore a hole in the crotch of her pajama pants and raped her.
A jury convicted Vantreece, but he appealed, saying prosecutors hadn't proven, as the charge required, that he'd used force.
In reversing the conviction, Chief Justice Gerald VandeWalle said: "It was not sufficient to prove Vantreece committed this crime with evidence that the complainant acquiesced in a sexual act with him because she 'learned from the past' to acquiesce in sexual advances without protest or resistance of any kind."
The two dissenting justices were the women on the court, Justices Carol Ronning Kapsner and Mary Muehlen Maring. In her dissent, Kapsner was critical of VandeWalle's choice of words:
"I find it disturbing to even use the word 'acquiesce' to describe the woman's attitude to the sexual encounter. It suggests a woman pretending to be sleeping must do more in order not to be victimized."
Van de Streek said the Vantreece case shows the challenges of prosecuting these crimes.
"That illustrates how difficult it is to prove these cases, not only in court but on appeal," Van de Streek said.
Unlike North Dakota, the state of Minnesota has no simple misdemeanor sex charges on the books. It has four different degrees of felony level criminal sexual conduct. Pam Harris, chief assistant in the Clay County criminal division, said if a charge ends up being pleaded down, it will often be to a lesser felony.
Minnesota's least serious sex charge is a gross misdemeanor-- a step up from a regular misdemeanor. Harris said that gross misdemeanor charge is the only one that doesn't require sex offender registration upon a conviction.
"We have a pretty comprehensive statute," Harris said. "We don't have a lot of gaps."
Burdick has said the outcomes of several sex assault cases present an opportunity for lawmakers to consider changes in state laws.
In November, prior to the upcoming legislative session, members of the North Dakota State's Attorneys' Association will float a dozen or so suggested law changes, and narrow the list to three or four priorities and begin looking for bill sponsors. It's not known whether this matter will be among them.
Aaron Birst, executive director of the NDSAA, agrees there is a significant drop off from felony sex charges to the class B misdemeanor charge, but that previous attempts at change haven't worked.
"We've kicked that around for decades but never really come up with a great solution," Birst said.
Sauskojus is hoping a solution is found this time around, when the Legislature convenes in Bismarck starting in January.
"Sexual assault cases are swept to the side and that is the incredibly sad reality of our judicial system," she said.