Julie L. Kessler
lawyer traveler writer


Re-victimizing the victim

In Montana in 2008, a 14-year-old girl was raped in a schoolhouse by a 49-year old teacher. At the sentencing phase, the prosecution had asked for a 20-year prison term with 10 years suspended. Last week, Montana District Judge G. Todd Baugh handed down his decision on the sentence: 31-days, with credit for one day served.


No, your eyes did not deceive you there. Judge Baugh gave the rapist a 30-day sentence for the rape of a child not even old enough to possess a learner’s permit to drive her mother’s car. Judge Baugh also said in the same case that the victim was “older than her chronological age” and “as much in control of the situation” as her rapist. Protest organizers have since demanded that the judge resign, and the Montana branch of the National Association for Women and others have called on both the governor and the state’s attorney general to review Judge Baugh’s actions in the case.


I can’t begin to understand what the judge meant when he said that the victim was “older than her chronological age.” She was tall? She looked older? Acted older? Even if all of that were true, under Montana state law (as in many other states), this would be irrelevant, as minors under the age of 16 cannot consent to sex. Thus, what she looked like or how she acted or whether she were six feet tall and still growing by an inch a second can’t be considered; she was legally incapable of consenting to sex. Period.


Let’s assume for the sake of argument that she looked and acted 25. Let’s even go one step farther and say (contrary to all presented evidence) that she wanted to have sex with a man old enough to be her grandfather. Statutory rape laws are ones of strict liability; thus, even if the victim looked 25, said she was 25, acted 25, even provided a fake ID reflecting that false age, and stated plainly that she wanted to have sex with an older man, the man would still be convicted of rape in a state with these laws.


That this case is beyond tragic goes without saying. And it was made even more so by the fact that the rape victim committed suicide in 2010, just short of her 17th birthday. Apparently, she wasn’t “as much in control of the situation” as the judge had previously thought. The only positive aspect of this tragedy is that the rape victim can’t be victimized again by this ongoing travesty of justice.


This, of course, doesn’t even begin to address the more fundamental issue of a teacher’s fiduciary responsibility to his students in a place of learning. The teacher was in a position of trust and authority and he abused that trust horribly in the worst possible way by raping a child in a school house, the one place other than our homes where our children should be safest in an often frightening world.


The fire the protest organizers and the NOW ignited following the sentencing phase must have gotten pretty damned hot in Billings, Montana. This week Judge Baugh has ordered a new sentencing to take place Friday, now saying that Montana state law appears to require a two-year mandatory minimum prison term; he wrote that “imposing a sentence which suspends more than the mandatory minimum would be an illegal sentence.” Ya think??? One would also think that logic, precedent, decency, and accountability might play a role in sentencing statutory rape, too.


Judge Baugh may now not even be able to impose a sentence longer than 30 days, since, under Montana state law, an illegal sentence must be processed as an appeal.


Stay tuned.

Date Posted:  Sep. 6 2013