Doctor’s Victims Finally Get Justice Rape Center Director, Lawyer Help Bring Case To Light; Physician Pleads Guilty

Second of two parts

Late 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.”

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 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, 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 she sent a news release by fax 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 monthslong investigation. The Rexburg police agreed they had received three complaints. Madison County officials acknowledged the existence of a recently filed $255,000 tort claim against the hospital.

A handful of women started talking to reporters. 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 said.

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.

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.

By the late fall of 1995 it had become clear 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.

On Nov. 15, deputy attorney general LaMont Anderson arrived at special prosecutor Steve Clark’s 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.

In the opinion of the attorney general’s office, Anderson declared, none of the cases was winnable; none was 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.

On Nov. 28, 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, 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.”

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

It certainly helped when the Boise-based Idaho Statesman, in mid-December 1995, published a package of stories about the Withers case 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 was able to reopen the Withers case. 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.

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 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.

What the hell, he figured. He needed another windmill to tilt at.

Two things in particular struck 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.

On June 3, he began talking to Withers’ accusers.

After just two days, he knew his course. They were going to court.

In Lillie Rasmussen, as the 13-year-old who signed the first complaint back in March 1994 is called in this account, 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.

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.

On June 13, Hawkley 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 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. By late August, Hawkley had assembled 16 felony counts against Withers, involving five minors. Withers soon 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 sentencing hearing in Rexburg. When it began on Monday, Sept. 9, there was an overflow crowd.

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.

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.

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.”

On came Withers’ victims. As a dozen women made their extraordinary procession to the witness stand, most took a moment to look directly at a stone-faced 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.

Then it was Withers’ turn to speak. It became apparent that his victims would not be getting all they sought from him. Although he’d pleaded 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.”