By Michael Cork
Should a judge be able to tell a convicted rapist how to manage his sexual life?
Should a judge be able to tell a convicted rapist how to manage his sexual life? That’s the question being asked about a case in a small town in southern Idaho.
Last fall, Idaho Twin Falls County Judge Randy Stoker gave rape defendant, Cody Duane Scott Herrera, the option of completing an education and rehabilitation program or going to prison. And the judge noted that if Herrera completes the program and is granted probation, “a condition of [probation] will be you will not have sexual relations with anyone except who you’re married to, if you’re married.” Herrera is single.
Some observers are crying foul, but Stoker explains that he was motivated by Herrera’s admission to investigators that he has had 34 sexual partners—at the ripe old age of 19. Herrera is accused of raping a 14-year-old girl when he was 17 or 18. Although the girl told Herrera she was 16 when they met, her mother informed him she was 14 and too young to date.
Herrera pled guilty to the offense of sex with a minor. He was sentenced to between 5 and 15 years in prison, with the sentence suspended in favor of a rehabilitation option known as the “rider” program. This program is a kind of middle ground between probation and prison. Participants are sent to an Idaho Department of Correction facility for an intensive combination of “programming and education” lasting approximately six months. The court retains jurisdiction, and if the offender completes the program to the judge’s satisfaction, the judge can choose probation instead of prison. Here, Herrera would need to complete the program and agree to the condition.
Arguably, the probation terms offered are no more stringent than Idaho law, since an existing statute criminalizes intercourse between unmarried persons of opposite sexes. The statute carries a $300 fine and imprisonment for 6 months. Of course, those on probation are required to obey existing law like the rest of us, but judges have a lot of latitude in how they choose to impose specific probation conditions related to crimes. For example, someone convicted of driving while impaired can be required to be free of drugs and alcohol while on probation. Someone convicted of a pornography offense can be required to avoid “adult” stores. Those over 21 are free to purchase alcohol legally, and adults who are not sex offenders are free to purchase pornography legally, but judges can and do regularly curb these freedoms in the context of probation.
Several law professors have noted, however, that the Idaho state law in question would probably not withstand a challenge after Lawrence v. Texas, the U.S. Supreme Court’s 2003 decision invalidating Texas’s sodomy statute. Lawrence’s ultimate holding is that consenting adults are free to engage in sexual behavior of their choice in the privacy of their own residences. And conditions related to probation cannot violate the 4th Amendment’s guarantee of substantive due process, or the 8th Amendment’s prohibition on “cruel and unusual” punishment. Some see the celibacy requirement as unconstitutional, based on substantive privacy and procreation rights. Others see it as cruel and unusual, similar to requiring an offender to have a lobotomy or be castrated.
Twin Falls County Prosecutor, Grant Loeb, believes the case is fairly routine and the celibacy condition fairly routine as well. At least one law professor believes it is constitutional, but probably a bad idea.
Other judges have imposed creative sentences. Painesville, Ohio Municipal Court Judge Michael Cicconetti required that a woman who intentionally failed to pay her taxi driver walk 30 miles as part of her punishment. And another defendant who abandoned kittens was required to spend a night outdoors.
These crime-specific probation conditions can serve a valuable purpose. Probation is designed to reintegrate the offender into society, minus the offensive behavior. It is an alternative to incarceration, under which the offender agrees to live under a higher degree of supervision than normal, but a far lower degree than prison involves. The court retains the authority to supervise, modify conditions, cancel probation and re-sentence if the offender violates the terms of probation. Herrera admitted to fantasizing sexually over underage girls, and raped a 14 year-old. He needs to learn to control his sexual impulses. While this probation condition might be hard to monitor and enforce, it has, in my opinion, a better chance of reforming Herrera than 5 to 15 years in prison.
Ultimately, Herrera’s choice may be an easy one. If he appeals the judge’s creative probation condition, he may win, but in the interim he will spend time in prison. And winning will only mean that he will be entitled to re-sentencing, minus the probation condition—and probably minus the rider program and probation—period. If Herrera chooses prison or is simply imprisoned, his options for sex—at least sex with a female—will be severely limited. And offenders like Herrera are not viewed well by their fellow inmates.