Archive for Friday, August 5, 2005

Court says local judge too lenient in rape case

Court of Appeals orders new sentence for men accused of raping 13-year-old

August 5, 2005

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The Kansas Court of Appeals today rejected Douglas County Judge Paula Martin's sentences of two men in the rape of a 13-year-old girl, saying the judge was too lenient.

"We vacate the sentence and remand to the district court for resentencing proportionate to the severity of the offense committed," the court said in the two cases.

In stern tones, the court said Martin abused her judicial discretion and committed errors in the sentencing of William Haney and Brian Ussery.

The two men were convicted of rape in the 2003 incident.

Facing approximately 13 years in prison each, Martin departed downward from the state sentencing guidelines, sentencing each to five years probation.

The decision caused an uproar, prompting an effort to oust Martin in November's retention election. That effort failed.

Martin said one of the reasons she departed downward was that a 17-year-old co-defendant, and the primary instigator of the crime, had been sentenced to 30 months in a juvenile facility.

Haney and Ussery were 18 at the time, and were tried as adults.

But the appeals court said it was impermissible for Martin to consider the juvenile co-defendant's sentence when departing downward on the 18-year-olds' sentences.

Martin also said the harm to the victim was not as great because there was less disparity in age with the defendants. The appeals court rejected that, saying "This reasoning is totally flawed."

Martin also said the victim may have been a willing participant in the incident.

But the appeals court said there is no evidence to suggest that is true. Still, the appeals court declined to weigh in on that matter because it said for an inexplicable reason, the state, in its appeal of Martin's sentences, failed to provide a transcript of the trial to the appeals court.

In conclusion, the court said in the two cases, "We conclude no reasonable person would have departed from the presumptive sentence to such an extent when considering only the valid departure factors stated within."

Martin's sentences, the appeals court said, "constituted an abuse of judicial discretion."

Comments

Baille 9 years, 9 months ago

Well, you should care what it says because it is the law of the land and if you disagree with it you can get it changed. Bottom line: Kansas law reflects the collective common sense - or should.

That said, the provision is pretty straightforward - the willingness of a victim can be taken into account in determining sentencing. However, Judge Martin erred about in her application and by adding some of her own criteria.

Look at the first two lines of the opinion:

"1. Lack of equity in sentencing among codefendants is not a mitigating factor listed in K.S.A. 2004 Supp. 21-4716(c)(1) and is, therefore, subject to greater scrutiny.

  1. To the extent sexual activity is encouraged by an underage victim, the legislature has provided for mitigation in K.S.A. 2004 Supp. 21-4716(c)(1)(A). Likewise, the legislature and the courts have considered the relative immaturity of an offender in providing for mitigation in K.S.A. 2004 Supp. 21-4716(c)(1)(C). Any other reliance upon the relative ages of a victim and a defendant is improper and does not form a substantial and compelling basis to depart from a presumptive sentence.

..."

I certainly agree that 5 months probation is asinine. I have kids myself and am appalled that was the sentence handed down for the statutory rape of a drunk 13-year-old.

I don't know many - any - who have championed that the sentence was appropriate or even bothered to debate that point. The debate so far has centered more around Judge Martin remaining on the bench. This is unfortunate. Judge Martin has proven to be an asset to Dougls County. She is fair and takes her duties very seriously. This one decision should not color Judge Martin's reputation nor should it be used to try and pry her off the bench. And I am not even a "feminist, ex-domestic violence advocates, ex-assist DA, or a lesbian." (Who are these people advocating for domestic violence anyway?)

Raider 9 years, 9 months ago

The "victim" was an active and willing participant. Judge Martin was right in her sentencing, despite what the appeals court says. Judge Martin should have also terminated parental rights, because it's quite obvious that the child was not properly cared for by the mother. What parent allows their 13 yr old to drink and run around with older boys?

OldEnuf2BYurDad 9 years, 9 months ago

Raider:

If I remember the story correctly, the teen was not "allowed" to do these things. She was sneaking out. If you have an out of control teen, you either try to manage the occasional "sneaking out" and other bad behavior, or you lock them to a radiator in the basement and go to jail for child abuse.

Life isn't always so cut and dried. Do you have any children (who lived to adulthood)?

OldEnuf2BYurDad 9 years, 9 months ago

Another thought, Raider:

Who REALLY should be held responsible for these sexual acts? The mother, who wasn't in the room? The child? Or the adult men who got the girl drunk and then had their way with her when she was semi-conscious?

Do the math. I suspect that you are part of the "boys will be boys" crowd who think that any time a man gets his "jollies" with a woman, he should be given an award. There are things in life more meaningful than guys getting lucky at the expense of women/girls.

WHERE are the REAL men?! REAL men DEFEND the well-being of women. Instead, our buddy Raider here throws both the girl and her stressed mother under the bus of his twisted sense of justice. I suspect that Raider thinks that God put women (his mother, his ex-wives, his traumatized prom date...) on this planet for his enjoyment.

Baille 9 years, 9 months ago

WTF? Why did the local DA's office fail to include the transcript of the trial on appeal? That doesn't make one bit of sense.

kolisach 9 years, 9 months ago

good call oldenuf.

A 13-year-old CANNOT be an "active and willing participant" under Kansas law.

John1945 9 years, 9 months ago

What I found so interesting is that after the campaign this same idiot judge tried another rape case.

The facts as I recall the case was that the "victim" was living with a man, not her husband, and went out drinking on the town.

When she returned home from the self-inflicted drunken evening she and her room mate wound up doing the horizontal mambo and at some point in her drunken reverie the woman (who if memory serves was a couple of years older than her room mate) decided she had been raped.

The room mate was sentenced to 5 years in the hoosegow. Quite a different outcome from getting a teeny-bopper drunk so you could gangbang her, yet Paula baby only gave those guys a slap on the wrist.

What a complete idiot. There needs to be effort #2 to get this kook off the bench.

Baille 9 years, 9 months ago

"A 13-year-old CANNOT be an "active and willing participant" under Kansas law."

Actually that depends on the context. In terms of establishing a defense to rape, you are correct. However, there is no such limitation on sentencing considerations. See KSA 21-4716

MyName 9 years, 9 months ago

Arminius: I'm sure your idea of "fair" coverage is usually followed by the words "and balanced". Maybe I'm taking the safe route here, but I think the appeals court made the right decision to change the sentencing. And I also think that the voters made the right decision in retaining Judge Martin. Tough cases like this are the reason we have appeals courts.

OldEnuf2BYurDad 9 years, 9 months ago

I'm not going to look up KSA 21-4716 because I don't care what it says. Common sense means more to me than Kansas law blah-blah-blah. Bottom line: regardless of how the law is written, these guys did something nearly as bad as holding her down while she said "NO". Even IF she was giggling and saying "YES", this is wrong in the heart of every decent person.

THIRTEEN YEARS OLD. Oh my gosh. I don't see where the debate is! Those guys deserve something medieval. Pliers and blowtorches, wielded by the fathers of 13 year old girls.

In spite of what I just said about the perps, I have to say that I'm not sure Ms. Martin deserves to be bounced off the bench over this. She has so much support because she has (I assume) served the citizens well in other situations and in other cases. As much as I want to see those men suffer in the public square, I'm not sure that a judge's entire career should be summed up by one case.

Baille 9 years, 9 months ago

Wait, OldEnuf. You just said you cared about common sense more than you cared about the law, and now you are saying some arbitrary law setting the age of majority at 18 automatically makes one an adult enmotionally, psychologically, and physically? That doesn't sound very common-sensical to me. I agree that high expectations can be met and should be set, but I would much rather have the built in flexibility of KSA 21-4716 than some arbiitrary bright line.

OldEnuf2BYurDad 9 years, 9 months ago

One thing I don't like about the logic behind the sentencing is that the proximity of their ages to the girl was taken into account. The idea was that the men were "barely" adults, so they were not treated as harshly in the sentencing. I really take issue with this. We have too many adults running around acting like kids. Personal accountability is sorely lacking in American moral fiber. We need to send a message to young adults that says "when you turned 18, EVERYTHING changed." Ask anyone who works at KU. So many freshmen act like children, and they get into a lot of trouble. Why? Because they are over 18, but their mommies and daddies are still wiping their butts. Ask anyone who works in adminstration at KU. They get calls all the time from parents of students, parents who basically think that the university is suppose to be playing chaperone for their little babies. Because so few expect adult behavior from them, they don't act like adults. And many of them get into a lot of trouble because of it.

When a 20 year old has sex with a minor, the fact that they are 20 should be a NON-ISSUE. The day before their 18th birthday, they were children. The next day, they were 100% adults in every way. Our laws should reflect that fact so that young people get the message that being young does not excuse them from acting responsibily. People generally rise to expectations. Expect little, and you will get little.

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