A 13-year-old rape victim from Lawrence spent much of the past week hospitalized in Topeka after an emotional breakdown Sunday in which she mutilated her arms and wrists with broken glass.

What triggered the incident, the girl’s mother said, was a judge’s finding days earlier that the girl was an “active participant” in her own rape — and that her attackers deserved probation, not prison.

The presumed penalty for rape under Kansas law is at least 13 years. But earlier this month, Douglas County District Judge Paula Martin granted an exception to state law, ordering probation and 60 days in jail for Brian K. Ussery, 19, Tonganoxie, and William N. Haney, 19, Lawrence.

Throughout last week, Martin faced increasing criticism from people who said her sentences in the case failed to acknowledge the severity of the crime, which happened when the girl was intoxicated. How, critics wonder, can a drunken child — who can’t consent to sex even when sober — be a willing participant in sex?

“It’s being treated as if she was the one that was wrong,” the girl’s mother said. “I’ve tried to teach my kids to believe in the system — ‘It’s going to work for you. Have faith. They’re here to help us,’ and it didn’t. It hasn’t helped. It just made it worse.”

Cases ‘difficult’

Despite calls for Martin to publicly explain her decision, she said last week ethics rules prevented her from doing so.

But according to her remarks in court, the reasons for granting the lighter sentence include what Martin saw as the girl’s willing participation, the judge’s belief that the harm suffered by the victim was less than that suffered by some other rape victims, and the defendants’ youth.

“These cases are amongst the hardest that I have heard,” she said in court.

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At least one person came to Martin’s defense this week: a Kansas University scholar who argued a lengthy prison sentence for the men wouldn’t have done society any good.

Kansas’ rape statute covers a variety of scenarios, ranging from physically forceful crimes to what’s commonly known as statutory rape: sex with someone under 14.

Though the aggressiveness of the victim isn’t a legal defense against statutory rape — it’s rape, no matter what — a judge can consider that factor when deciding whether to lighten the sentence.

‘Go for it’

Journal-World policy is generally not to identify rape victims. According to testimony and court documents, here’s what is known about the case:

On the evening of June 13, the girl’s mother went out for a social engagement. She said she left the girl at the family’s apartment with a trusted adult baby sitter who sometimes stayed overnight at the apartment.

After the sitter had gone to sleep, the girl sneaked out, met another Lawrence teen, and ended up with a group of men at a party at the apartment where 17-year-old Dana S. Jackson lived in the 1300 block of Tennessee Street. The girl testified Jackson’s mother was asleep in another room.

The girl began drinking hard liquor. Prosecutors alleged Jackson furnished the alcohol. Eventually, she had sex with Haney, Ussery, Jackson, and, she alleges, a 28-year-old Lawrence man who has yet to stand trial. Later, she had sex again with Jackson — an encounter she’s described as consensual.

Jackson, who later pleaded guilty to attempted rape, was sentenced by a different judge to 30 months at a juvenile-corrections facility.

The defendants’ version of events was that the girl had sex with them willingly on the condition they used condoms.

According to a court document, Haney summed up the incident as follows: “She said if we had condoms, we could go for it, and we did.”

Aggressive or intoxicated?

One key question — something that remains open to interpretation — is exactly how intoxicated the girl was when she had sex.

At one point in the night before the rapes, the men were worried she had alcohol poisoning and began to drive her to the hospital. Before they got there, she said she was feeling better, so they turned around. Before the sex acts, she had to be carried up a flight of steps.

Haney told Lawrence Police Detective Lance Flachsbarth the girl made several encouraging comments during the rapes, such as asking if anyone wanted “seconds.” Haney also said the girl told them it took all four of them to please her.

The girl later testified she was “wasted” that night.

But Michael Clarke, Ussery’s defense attorney, argued the girl got drunk on purpose, then later exaggerated her own level of intoxication — an argument Judge Martin apparently accepted in finding the girl was an “active participant.” To support his claim that the girl wasn’t really that drunk, Clarke pointed out specific things the girl was able to remember from the night, such as what color boxers Jackson was wearing.

Dick Sanders, a juror in Haney’s trial, said he thinks the girl was “pretty intoxicated,” but not dead drunk.

“I felt that through the whole evening, that she knew what was happening because, when they were taking her to the hospital, she was the one that said she was OK, that she didn’t need to go,” Sanders said. “It wasn’t like she was in a semi passed-out state.”

Family targeted

When the girl came home the next day, smelling of alcohol and with vomit on her clothes, one of the first things her mother asked her was if she’d been having sex.

Clarke seized on that statement as more evidence that his client deserved a lighter sentence.

“Quite frankly, under the circumstances, her mother’s question is not one of the first questions most parents would ask … unless there was some history, i.e. pattern of sexual behavior,” Clarke wrote.

Sanders, the juror in Haney’s case, said many members of the jury thought the girl’s parents should have been the ones on trial.

But it’s impossible to know what a teenage girl is doing at all times, the girl’s mother said.

“Who hasn’t been a teenager, you know?” she asked. “When I was 13, if I wanted to go someplace bad enough, it was pretty easy to do if I chose to.”

The fourth defendant in the case has yet to stand trial, and the girl’s family is considering a way to prevent her from having to testify again, the mother said. She’s already been cross-examined three times, including once during a preliminary hearing in which three defense attorneys took turns grilling her.

“She’s been harassed not only in court, but on the street,” the mother said. “She’s been called a liar, a whore.”

Judge criticized, praised

Sylvie Rueff, of Lawrence, treasurer of the local chapter of the National Organization for Women, said she feared Martin’s rulings would discourage other victims from coming forward.

“When something like this happens, it affects all women,” Rueff said.

Sarah Jane Russell, executive director of GaDuGi SafeCenter in Lawrence, said rape victims had been “deflated” by the sentences.

E-mails critical of Martin circulated this week among people who work in social services, prompting Forrest Swall, an assistant professor emeritus in the school of social welfare at KU, to defend the judge. Incarcerating the men wouldn’t have served any purpose other than to exact revenge, he said.

He praised Martin for giving strict conditions of probation, such as requiring 500 hours of community service, and said he considered the men victims of a society that doesn’t teach young people enough about sexuality.

“The potential for some real positive impact — education and so on — for these two kids is very significant,” he said.

Technically, Martin sentenced the two men to 30 months in prison, then suspended the sentences and ordered them to serve jail time as part of their probation. If they violate probation, they could be sent to prison.

Kathleen Ambrosio, of Topeka, one of Haney’s attorneys, said she believed her client got an appropriate punishment.

“It’s real easy to sit in a jail cell for 30 months. They just lock you in,” she said. “This young man is going to have to toe the line to keep his freedom, and I think that’s fair.”