The Austin Chronicle

Sexual Assault Survivor Files Temporary Restraining Order Request Against Travis County D.A.

By Sarah Marloff, November 8, 2019, 4:15pm, Newsdesk

Travis County District Attorney Margaret Moore and her First Assistant Mindy Montford are now facing a possible restraining order.

Emily Borchardt, one of the eight plaintiffs in the ongoing sexual assault class action lawsuit who separately hit the the pair with a defamation suit in September, filed the restraining order request on Friday, Nov. 8, in an effort to “temporarily restrain” and, following a hearing, “preliminarily enjoin” Moore and Montford from “making, or directing or encouraging others to make, statements that explicitly or implicitly state or suggest” she consented to being sexually assaulted. As explained in the request, “this case isn’t about Emily’s rapes, or even about the DA’s refusal to prosecute her criminal assailants. This case is solely about whether Ms. Moore and Ms. Montford can publicly malign a victim without authorization to discuss her case or any regard for the truth.”

Borchardt, who says she was strangled, kidnapped, and raped repeatedly over two days by several men – including one who served jail time for murder – in January 2018, joined the survivors lawsuit in August 2018 after the TCDA’s Office twice declined to prosecute her case. A month later, Montford returned a call made by a friend of the Borchardt family who wanted to know why Borchardt’s case had been denied. The friend (and former sister-in-law of Montford), Dawn McCracken, recorded the call, which captures Montford saying Borchardt admitted her alleged rapes were consensual and that she was “relieved” prosecution was declined. After the recording came to light in March of this year, Borchardt filed a separate lawsuit that accuses Moore and Montford of lying about a rape survivor in an attempt to undermind Borchardt and dissuade her from pursuing the class action suit.

Friday’s filing in an Austin-based U.S. District Court reexamines the 40 minute phone called shared between Montford and McCracken, in which Montford said “no fewer than 11 times” that Borchardt told the Austin Police that the “rapes she endured were actually consensual.” Montford also “indicated that Emily signed a written statement admitting that she consented to her rapes.” However, a side-by-side table in the filing comparing Montford’s statements to McCracken and Borchardt’s statements taken from the Austin Police Department’s file on the case show a large discrepancy between the two.

Quotes from the police file include “[Emily] said she never consented to having sexual intercourse,” and “Emily stated [that] . . . all three subjects had sex with her without her permission.” From her written statement given to APD, Borchardt wrote: “I tried to run to the door to get out but he grabbed me by the hair and pulled me back. I learned that trying to run away or hitting him made things worse for me. I also learned that if I said or did the wrong thing, his mood would escalate into anger very easily. Throughout the morning he [the third man] kept forcing me to perform various extremely sickening sexual acts on him.” Friday’s filing states that Borchardt now feels “forced” to share the traumatic details of her kidnapping and assault to “demonstrate how clear it is” that Moore and Montford lied about her case.

Borchardt also argues that the two have continued this narrative – even after the phone call was made public – including Moore’s public statement in March saying she reviewed the call’s transcript and found “no improprieties” in her First Assistant’s conduct. The filing also references a recent D.A. Candidate Forum held in Lago Vista on October 13, when Moore allegedly spoke about the defamation suit stating: “In this case, the allegation that there were lies told or that it was a violation of victim privacy are unsubstantiated.”

According to the filing, Moore’s most recent comments suggest she and Montford “intend to continue to speak publicly about Emily’s case, including in upcoming events related to Ms. Moore’s campaign for re-election, and to continue to misrepresent both what Emily has said and what the evidence in the APD file proves.” It also argues that there’s a “substantial threat of irreparable injury” to Borchardt if the two “are not immediately enjoined from continuing to spread lies about her.”

Attached, as an exhibit to the filing, is a sworn, four-page affidavit from Borchardt stating that it’s “categorically false” that she ever consented to her sexual assault or that she ever told the cops she consented. “Montford’s accusations,” Borchardt writes, “caused great pain to me, as I was forced to worry whether my family and friends would doubt me or my experience.” She concludes her statement, which details the depression and challenges she’s dealt with in the last two years, noting: “There’s virtually no way, outside of this lawsuit, for me to repair the extensive damage already done to my reputation given the repeated and public false statements” made by Moore and Montford about her case. “It also seems that they will continue to make misrepresentations in order to protect themselves, at my expense.”

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