PROVO SEmD A door-to-door salesman's rape case has been left in limbo as officials argue over where to send him to be restored to competency.

Despite a judge's ruling that Brian Mask is incompetent due to mental retardation, officials with the Department of Human Services say Mask cannot be treated by the department because he is not mentally retarded.

"The department has determined that Mr. Mask has a learning disability, which could be misdiagnosed and mislabeled as mental retardation, due to its severity as expressed in this case," wrote the department's attorney in the case, Stephen Mikita.

Mask, a Chicago native, was arrested last August after he allegedly beat and raped an American Fork woman in her home. Mask was declared incompetent by Judge James Taylor in May and ordered into the custody of the Department of Human Services in order to try and restore him to competency. Although two of three evaluators have previously determined Mask is incompetent to proceed at this time, the department filed a motion asking the judge to review the order because it does not have the services to support someone like Mask.

Mikita argued in the motion that Mask does not have mental retardation, but rather borderline intellectual functioning and a learning disability. The Utah State Hospital cannot take Mask if he does not have a mental illness, and the Utah State Development Center cannot take him without a diagnosis of mental retardation.

"In fact, the Department of Human Services would violate Utah law, not to mention Federal law, if it were to place Mr. Mask in a DPSD residential facility, involuntarily commit him to the USDC, or involuntarily commit him to the Utah State Hospital," Mikita wrote.

The department relied on the findings from evaluators who first found Mask incompetent, as well as its own analysis from Steve Wrigley, who is a qualified mental retardation evaluator with the department. Wrigley evaluated Mask at the Utah County Jail and determined Mask has difficulty comprehending things he has not experienced, due to drug use and a learning disability.

"It also appears that Mr. Mask's long-term drug and alcohol use, beginning at the age of 10, has impacted his overall cognitive ability," Mikita wrote.

While the Department of Human Services claims it cannot take Mask, Mikita suggested a drug treatment program through another agency or programs with the Utah Department of Education or the Provo School District could help restore competency. Mask's attorney, Richard Gale, however, called these suggestions absurd. Gale said it is important for the department to take Mask so that he can be treated correctly, even if that means he is treated at the county jail rather than one of the department's facilities.

"The charge he has is life without parole, so I'm less concerned about the immediate incarceration than the long-term disposition," he said.

Even if Mask is a risk to society, prison may not be the right place for him if he has a mental disability, Gale said. His case is difficult because he does not suffer from profound retardation, but is part of a group that often falls through the cracks. Funding for people with milder mental disabilities has reduced over the years, leaving them without the help they need to stay out of trouble, he said.

"We've done away with a lot of the services for those people, so they're ending up in the criminal justice system," Gale said.

Prosecutor Julia Thomas said the delays in the case are difficult for everyone involved. It is very hard for the victim, who wants a speedy resolution in the case, she said.

"It's very frustrating," Thomas said. "He's already been in custody for over a year now."

Thomas said the situation is puzzling, and it is difficult to tell where the case will go next. A hearing will be held Oct. 23, in which the judge will determine whether to vacate his previous order and call in more experts to determine Mask's competency. At that point, the case will likely be at the same place it was months ago.

"We're at a really difficult position," Thomas said. "Obviously we don't want to let him loose. We think he's a danger to society."

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