The Kansas Court of Appeals on Friday found a Douglas County judge was too lenient when she gave lightened sentences to two men who raped a 13-year-old girl.
The court found Judge Paula Martin's sentences in the cases of William N. Haney and Brian K. Ussery were "an abuse of judicial discretion" and ordered that the men be sentenced again.
The decision brought tears of relief to the victim's mother, who helped lead an unsuccessful effort to vote Judge Paula Martin off the bench last fall.
"This to me says that I've been justified through all that I've gone through for my daughter," the mother said. "We were criticized so harshly during election time. For all the attorneys that say we were wrong, this says that we were right."
One of Judge Martin's supporters responded by saying that even though Martin's critics may be right about this case, they were wrong to seek her removal from the bench after an unpopular decision.
"I'm not going to take issue with the court of appeals on their judgment, and I'm sure that the judge will take their opinion into account as she looks at the case again," said lawyer Dan Watkins, who led a group that supported Martin in the November retention election. "There's two issues here: Was the decision right under the law, number one, and number two, if it was wrong, does that mean the judge should be removed? Their solution was that she should be removed. We thought that was not appropriate."
Haney, a Lawrence resident, and Ussery, of Tonganoxie, were convicted of having sex with the intoxicated teen in June 2003 after a night of drinking at a central Lawrence apartment. In Kansas, sex with a child younger than 14 is automatically classified as rape, and it normally carries a minimum penalty of about 13 years.
But Martin cited a law that allows judges to depart from the state sentencing guidelines and ordered each to five years of probation with an underlying sentence of 30 months.
Martin said one of the reasons she lightened the sentences 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 after entering a plea to attempted rape.
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 setting the 18-year-olds' sentences. To compare the two, the court wrote, is to "attempt to circumvent the legislature's policy decisions" to treat adults differently from juveniles.
The appeals court also found Martin used "totally flawed" reasoning in finding that the victim's proximity in age to the suspects caused her to suffer less harm than the typical rape victim.
"A 13-year-old victim is no more capable of consenting legally, to sexual activity with an 18-year-old than with a person who is 25 or 40," the court wrote. "Furthermore, the trauma to the underage victim is potentially as great."
The appeals court also rejected Martin's finding that the absence of physical force or trauma resulted in less harm to the victim.
"There is nothing within the record ... to indicate the harm suffered by this particular victim was less significant than the harm normally associated with statutory rape," the court wrote.
The victim's mother said her daughter has had a series of emotional and psychological difficulties since the incident and is now living in a long-term psychological care center.
"She still feels very much victimized by the system," her mother said.
According to testimony, the girl told the men before they had sex with her that they had to use condoms. Martin cited that reported comment and the girl's previous drinking experience as evidence that she was a "willing participant."
"The victim's experience or inexperience with alcohol is irrelevant ..." the court said. "The fact that there is no evidence of threats, force or weapons in the commission of the crime is relevant, but the relevance is obscured in light of the victim's totally intoxicated condition."
Still, the court said it could find "no error" in Martin considering the girl's participation as a factor for the lightened sentence. That's partly because prosecutors failed to provide a transcript of the trial to the appeals court that could have settled contradictory evidence.
The appeals court called the record of the case "woefully inadequate" and "thin."
Dist. Atty. Charles Branson said Friday that he couldn't comment on the decisions, but he noted the appeals were prepared and filed while his predecessor, Christine Kenney, still was in office. Kenney declined comment.
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."
Ussery's and Haney's defense attorneys did not return phone calls seeking comment.
Branson said the normal procedure would be for the case to return to Martin's court for resentencing.
Martin revoked probation for Haney in April, based on a long list of probation violations in the past year. He is now serving a 30-month prison sentence.
Ussery remains on probation.