Rape-victim advocates left a courtroom dejected Friday after a judge sentenced a Tonganoxie man to probation and 60 days in jail for raping an intoxicated 13-year-old Lawrence girl.

The presumed penalty for rape under state law is at least 13 years in prison. But Douglas County District Judge Paula Martin lightened the sentence for 19-year-old Brian K. Ussery in part because she found that the victim — who was so drunk in the moments before the rape that she couldn’t walk up a flight of steps — was an “active participant.”

Martin also said that, because there was no use of force or threats, the harm the girl suffered was less than that suffered by some rape victims.

“We’re just deflated,” said Sarah Jane Russell, executive director of Douglas County Rape Victim-Survivor Service. “We need to regroup and think about how we can have an effect on the judicial system in a positive, proactive way.”

Having sex with someone under 14 is classified as rape under Kansas law, regardless of whether the sex is physically forced. The law also defines rape as having sex with someone who can’t give consent because of the effects of alcohol.

A week ago, Martin handed down a similar sentence to a co-defendant in the case, 19-year-old William N. Haney, of Lawrence, who also got probation and 60 days in jail. In both cases, Martin granted a “departure” — an exception to the state’s sentencing guidelines — at the request of defense attorneys.

Dist. Atty. Christine Kenney said she planned to appeal both sentences.

“We feel very strongly that the underlying facts of this case warranted a more serious penalty,” Kenney said. “Being 13 and being under the influence of an intoxicant, in our opinion, that is clearly an individual that the laws were designed to protect.”

Both Ussery and Haney were convicted at jury trial of having sex with the girl early on the morning of June 14 at an apartment in central Lawrence. Another defendant, 18-year-old Dana S. Jackson — a juvenile at the time of the incident — was sentenced to 30 months in custody after pleading guilty to attempted rape.

A fourth defendant, a 28-year-old Lawrence man, was sent to Larned State Security Hospital for an evaluation.

District attorney appeals sentence of 60 days in rape of 14-year-old (1-10-04) Third convicted in teen’s rape (12-3-03)

The girl’s mother stood up in court Friday and read a letter written by the girl to Ussery.

“You’ve made my life as horrible as possible,” the letter said. “You took away my innocence.”

The mother said that since the rape, she’s seen three of the defendants out in public going on with their lives “as if nothing has happened.”

Martin said that in granting the departure, she considered factors including the girl’s participation, the co-defendants’ sentences and Ussery’s lack of a criminal background.

“This appears to the court to be a context-specific incident that is not likely to recur,” Martin said.

Technically, Martin sentenced Ussery to 30 months in prison with a three-year period of post-release supervision. Martin then suspended the sentence and ordered Ussery to be on probation for five years and to serve 60 days in jail as a condition of probation.

He also must write a letter of apology, complete 500 hours of community service and undergo a therapy program and drug-and-alcohol evaluation.

He’ll only face prison time for the crime if he fails to abide by the terms of his probation.