A woman who said she was sexually assaulted at Burlington’s Edward J. Costello Courthouse is suing the state of Vermont for negligence nearly a year after a jury acquitted her alleged rapist.
Filed in Washington County Superior Court last month, the lawsuit accuses Burlington criminal courthouse security of failing to protect the woman from sexual assault despite several reports of her alleged attacker’s aggressive behavior toward female attorneys on the morning of Oct. 16, 2015. The suit names the state of Vermont as its lone defendant and references the accused – Robert Rosario, 35, of New York – throughout the complaint.
“[The] state of Vermont and its security officers knew of the foreseeable risk of harm of violent assault on courthouse visitors and knew or had reason to know that Robert Rosario, in particular, posed a threat,” the lawsuit says.
The state will argue court officers couldn’t have forseen that Rosario would commit the alleged crime and therefore the state shouldn’t be held liable for his actions, according to Kate Gallagher, chief of civil division at the Attorney General’s Office, which is representing the state. “There is no duty here that was breached,” she said.
The woman lived in Essex during Rosario’s trial last December, and the lawsuit says she still lives in the county. The Reporter does not identify victims of alleged sexual assault without their consent. Reached Monday, her attorney, David Lynch, declined to comment on the case.
The assault has left the woman with ongoing medical expenses to address mental and physical harm rising to the level of some “permanent disability,” according to the lawsuit. She asks for compensatory damages and any relief the court deems just.
Rosario’s trial focused heavily on interactions between Rosario and the woman leading up to the incident. Court records show she was there for a meeting with a counselor while Rosario was attending a hearing for a drug trafficking charge.
The alleged victim testified that Rosario approached her several times and insisted she knew him. Later, she said, he went into the women’s bathroom, shoved her into one of the stalls, told her to “shut up” and raped her. Prosecutors from the Attorney General’s Office told the jury the woman was homeless and working to overcome a drug addiction at the time of the incident. They called her the “perfect victim.”
Rosario’s attorney, Bob Katims, sketched a different picture. He told jurors the alleged victim “badgered” Rosario – whom she knew from drug-related encounters – and initiated consensual sex in what she hoped was an exchange for drugs. Only when Rosario left without following through did the woman allege he raped her, Katims said.
Focusing less on the alleged attack and more on the hours leading up to it, the lawsuit says Rosario accosted and catcalled several female attorneys as he remained in the courthouse two hours after his hearing. Those female attorneys told a male colleague that they had been sexually harassed by a man later determined to be Rosario, court records show.
“They described his behavior as sexually aggressive and inappropriate,” a police affidavit says. “He had followed each of them very closely and made them feel uncomfortable and unsafe to the point they had hidden in an interview room waiting for him to leave.”
The male attorney reported the claims to a security officer less than an hour before the incident, according to court records.
“Despite Mr. Rosario’s observed and reported behavior, security personnel took no action to investigate, monitor, confront or remove Mr. Rosario from the building,” the lawsuit says. It claims the victim’s alleged rape is a “direct and proximate result” of this negligence.
The lawsuit doesn’t name the female attorneys, but Chittenden County State’s Attorney Sarah George told The Reporter last week she was among the women harassed by Rosario.
“He was approaching me pretty continuously, attempting to get me to agree to go on a date with him, asking me out, telling me that I was beautiful,” George recalled. “He was not angry or aggressive in the violent sense. He was aggressive in the determined sense.”
Such behavior didn’t seem all that unusual to George, who said female attorneys often get asked out in the courthouse. But she said Rosario’s behavior went beyond those typical encounters, and what stuck out to her most was who it was coming from: She once prosecuted Rosario for domestic assault and now he was “asking me out to lunch.”
George said she believes the victim’s allegations but doesn’t think Rosario was doing anything illegal prior to the incident, nor does she believe what she reported was enough for court officers to take action.
Proving negligence requires plaintiffs to show defendants were put on actual notice – or in this case, that the state could have foreseen that Rosario posed a risk to the woman. Assistant AG Gallagher didn’t think Rosario’s behavior met that standard.
She was even more skeptical of the lawsuit’s second charge: That by disregarding the female attorneys’ claims, the state violated the Public Accommodations Act, which says members of protected classes – in this case, women – have a right to be free of sexual harassment in public spaces such as a courthouse.
Gallagher didn’t fully understand why that law would have any merit in this case because the alleged victim was not claiming she was sexually harassed. And even so, Gallagher said, the claim “cuts two ways.”
“The individual who is alleged to have assaulted the plaintiff – he has a constitutional right to be in the courthouse,” she said.
The lawsuit, meanwhile, says court officers would have taken the female attorneys’ claims more seriously if they were men.
The Chittenden County Superior Court clerk, who oversees the court’s judicial officers, deferred questions to her Washington County counterpart, who deferred to the Attorney General’s Office.
Neither George nor any other female attorneys testified at Rosario’s trial – the judge ruled their testimony would be too prejudicial, George said. She admitted it felt a “little strange” that the lawsuit alleges the state – her employer – discriminated against her, and said she had no idea the suit was coming.
It didn’t come as much of a surprise to Rosario’s former attorney, however. Katims said the defense knew the alleged victim retained legal counsel last year but said the court didn’t want attorneys diving into that during the trial.
He said the lawsuit is of “no concern” to his former client, whose legal issues in Vermont have been resolved (After he was acquitted of the sexual assault case, Rosario posted bail on the remaining drug charge and went on to receive credit for time served during both cases, Katims said.)
“[The alleged victim’s] issues are with the state of Vermont, not with him,” Katims said.
Gallagher doesn’t believe the trial’s result will factor into the state’s defense. The heart of the matter is not whether the attack took place but who is responsible for it, she said, and it’s the state’s position that the “criminal and only the criminal” is responsible for any misconduct.
“I’m not really wanting to rehash all the allegations with respect to the rape itself,” Gallagher said. “I don’t think it will be necessary. I certainly don’t want to put this plaintiff in that position. I’m thinking that we will be able to resolve this case without ever having to address that.”