February 7, 2017

"I have never seen that level of sexual activity by a 19-year-old," said the judge...

... about a young man who had had 34 sexual partners (and viewed pornography).

The man, Cody Duane Scott Herrera, pleaded guilty to rape — the incident involved a 14-year-old girl when he was 17 — and received a 5 to 15 year sentence, but he can get probation instead of prison if he completes "intensive programming and education." However, he must then adhere to a condition:
“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” [Judge Randy] Stoker told him....

[Twin Falls County Prosecutor Grant] Loebs said probation is intended to restrict certain behaviors related to the crime. For instance, for someone convicted and sentenced for drunken driving, the terms of probation may stipulate no drugs or alcohol....

“We don’t just put sex offenders on probation and then not care what they do,” Loebs told The Washington Post. He emphasized that probation is an agreement and, assuming that offer is made, Herrera can reject it.
Loebs also observes that — as far as the law on the books — fornication is a crime in Idaho. Obviously, it's not enforced, and if it were, it would, I presume, be struck down as a violation of substantive due process (the right of privacy). But does that make the condition on probation a violation of his constitutional rights? WaPo found a lawprof to say so:
“I think it infringes on his constitutional rights,” Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law, told the Times-News about the proposed celibacy.* “I think if he appealed,” Sanders said, “he would win.”
Herrera does have the option of refusing probation on going to prison for 5 to 15 years, and, as Loebs says: "a judge’s purpose is to keep them from committing another offense. A judge has [a] right to order things to keep him from doing that."

Is no sex until marriage (for a person convicted of rape) like no drugs/alcohol (for a person convicted of a DUI)? There are (at least) 2 dimensions to this question: 1. The causal connection between the forbidden activity and the criminal offense, and 2. The centrality of these activities to fundamental human dignity and autonomy.
_______________________________

* Celibacy is exactly the wrong word. I'm not usually a stickler about the celibacy/chastity distinction, but the judge's condition goes right to the traditional distinction between the words: Celibacy is the principle of abstaining from marriage (and sex too, of course). Herrera isn't forbidden to marry. (And if he were, the judge's condition would run into more serious constitutional problems, because the Supreme Court has applied the right to marry even to prisoners.)

ADDED: Some of the commenters at the link (to The Washington Post) are criticizing the judge for not seeing (or not believing) that rape can happen within marriage.

48 comments:

Meade said...

Seems to me consensual frottage would keep a lot of young people out of trouble. Old people too.

Ron Winkleheimer said...

I'm glad I followed the link, because now I know that his behavior was quite a bit more egregious than a couple of minors having voluntary, but illegal because of the girls age, sex.

At least according to the victim, it was actual rape with no consent given. And, considering the pattern of behavior he demonstrated, he was acting in a predatory fashion. Given that, I think restricting his behavior is perfectly reasonable.

MadisonMan said...

Predictably, some commenters at the Post think that having this young man be raped in prison is fitting punishment, or funny.

DKWalser said...

Can't someone voluntarily give up the use of a constitutional right (if only for a time)? I think so. After all, members of our military agree to limitations on their exercise of free speech and other rights while they are in uniform.

Ann Althouse said...

"Seems to me consensual frottage would keep a lot of young people out of trouble. Old people too."

I agree that nonpenetrative sexual activity is an important option, but look at the criminal statutes before assuming it will keep you out of trouble. Obviously, there are a lot of touchings that are criminal!

Meade said...

I know. That's why I said "consensual."

Meade said...

Also, instead of firing her, Bill Clinton should have listened to Surgeon General Joycelyn Elders.

Ann Althouse said...

"At least according to the victim, it was actual rape with no consent given."

You don't know that as an absolute fact. He pleaded guilty, which means he considered the risks of going to trial and made a decision that he thought was in his best interest.

Notice that he and the girl had a relationship. It seems that the climbing in the window at night to watch a movie was consensual, and that was done secretly, against the rules of the girl's parents. The report came after the parents were involved and the mother seems genuinely upset that her daughter's virginity was lost.

Ann Althouse said...

But the judge has to sentence the man for the crime he stands convicted of. The question of what might have been learned at trial and whether there could have been reasonable doubt isn't part of the sentencing decision.

Ann Althouse said...

"I know. That's why I said "consensual.""

You should make it more clear that you are including the legal idea that persons under a certain age cannot give consent.

HoodlumDoodlum said...

'I have never seen that level of sexual activity by a 19-year-old," said the judge

Slut shaming, straight up.

Meade said...

You're right, I should.

Laslo Spatula said...

""Seems to me consensual frottage would keep a lot of young people out of trouble..."

Is it considered consensual if both parties paid to be on the same bus?

And just what the hell are you supposed to do on a crowded bus if you have an erection and it's your stop: it's going to rub against SOMEBODY at some point, and then it's like you broke a law or something.

I mean, people bump each other with purses and packages on the bus all the time, and yet there is no crime against that.

Free The Erection!

I am Laslo.

The Drill SGT said...

Choice is good, yes?

Jupiter said...

"WaPo found a lawprof to say so:".

Drag a hundred-dollar bill through a trailer park ...

damikesc said...

Marital rape is a sticky issue. Rape laws were generated, originally, due to protect the woman's modesty from the intrusion of an unwanted male. It was not originally in regards to the physical assault but to the moral assault.

A wife cannot really be modest with her husband. That ship sailed. I'd have no issue with marital sexual assault --- rape seems like a bit of a stretch. Also, impossible to prove.

At least according to the victim, it was actual rape with no consent given. And, considering the pattern of behavior he demonstrated, he was acting in a predatory fashion. Given that, I think restricting his behavior is perfectly reasonable.

I'd argue it was too lenient. He has a track record of that behavior and it is highly unlikely somebody will change such behavior. Some do, but it is rare.

You should make it more clear that you are including the legal idea that persons under a certain age cannot give consent.

My problem with statutory rape laws is that when it is committed against a boy, it is treated by both the courts (female teachers banging male students get much shorter sentences than male teachers banging female students) and society as no big deal but a horrible crime against a girl. If it is not going to be viewed equally, then the law is pointless.

mockturtle said...
This comment has been removed by the author.
Laslo Spatula said...

"Marital rape is a sticky issue."

Marital Bukkake is even stickier.

I am Laslo.

Bob Boyd said...

Meade said...
"You're right, I should."

You just sort of dry-humped the concept. You didn't go all the way.

Laslo Spatula said...

“Did you just do that?!”

“Do what?”

“Your dick! You just pressed your dick against me!”

“What? No I didn’t.”

“Yes you did! You came up behind me and pressed your dick against my ass!”

“That wasn’t my dick, I swear!”

“Then who’s dick was it?”

“It wasn’t my dick! I just have a banana in my pants.”

“Yeah, right.”

“I swear: I keep a banana in my pants.”

“Show me your banana, then.”

“You want to see my banana?”

“I want to see your banana.”

“Just remember: you asked…”

“That’s not a banana — you just painted your penis yellow!”

“You could see it that way. I see it as I’m a transexual, and I call what used to be my penis a banana. It is a disassociation technique."

“So you’re a transexual?”

“Yes. I am a transexual with a banana. It is no longer a penis. Banana now.”

“Let’s just pretend this never happened, okay?”

“Sure, sure.”

“Thank you.”

“I do have a question for you, though.”

“And what is that?”

“Would you like me to put my banana in your mouth? You look like you could use some potassium…”

I am Laslo.

Ron Winkleheimer said...

You don't know that as an absolute fact. He pleaded guilty, which means he considered the risks of going to trial and made a decision that he thought was in his best interest.

Yes, I agree. But there is very little we can know as absolute fact, especially when the evidence is mostly testimony from people with a huge emotional involvement with the situation at hand.

and

You answered my question in your very next post. The judge is not supposed to take that into account.

and

Well yeah, the mother is upset. Her daughter is 14 and was lying to her and having an affair with a boy 3 years older than her. A significant age gap for teenagers. The middle school model was created to keep 13 and 14 year old girls away from 17 and 18 year old boys. The 17 year old is encouraging her to engage in inherently risky behavior and is doing so because he knows she lacks maturity.

Ron Winkleheimer said...

He had sex with 34 different partners, he obviously wasn't in love with the girl. Also, there is a pretty good chance he has an STD.

Bob R said...

"You should make it more clear..."

Meade, How's retirement working out for you?

Ron Winkleheimer said...

And of course, there's the risk of pregnancy.

All in all, this guy is the sort that in a more civilized age would have been horse whipped by the father and then ridden out of town on a rail.

exhelodrvr1 said...

If she was letting him climb into her bedroom window at night, without her parents' OK, what's the likelihood that the sex wasn't consensual? Doesn't pass the smell test.

tcrosse said...

Sounds like a good ABC After School Movie: Warren Beattie, the Early Years.

Ron Winkleheimer said...

Oh, by the way Laslo wins the thread, again.

Ron Winkleheimer said...

what's the likelihood that the sex wasn't consensual?

I would have to know how naive she is. Also, isn't the essence of statutory rape laws that minors cannot give consent because they lack the necessary maturity to understand the consequences of their actions?

Ron Winkleheimer said...

I would have to know how naive she is.

And some young women appear to be pretty naive these days.

Seriously. They go out and get passed out, blackout state drunk with guys who are also consuming large amounts of alcohol and wander off alone with a man or men.

readering said...

Seems something unjudicious about that alternative for serious crime.

Bob R said...

On your two questions: 1. I don't think the judge has to prove a causal connection. (Does he?) Drinking is a necessary condition for drunk driving, sex is a necessary condition for rape (at least the variety of it that he is accused of). Giving those up serves as a punishment and prevents the respective crimes.

2. This isn't an answer to the question - just another question piled on top. Are "activities [central] to fundamental human dignity and autonomy" the same thing as unenumerated rights "retained by the people?" Subset? Superset?

Bill R said...

Hmmm...

"you will not have sexual relations with anyone except who you’re married to, if you’re married"

The way I read that, he's off the hook. He can only have sexual relations with his wife if he has a wife. But since he doesn't have a wife, he can have relations with anyone he likes.

I don't think that is what the judge meant but the judge is the lawyer. He should write clearly.

For example
"you will not have sexual relations with anyone. Except who you’re married to, if you’re married"

Punctuation matters to meaning.

Ron Winkleheimer said...

In any event, more to the Professor's point:

2. The centrality of these activities to fundamental human dignity and autonomy.

Not being locked up with a bunch of violent people in a place were you are told when to eat, when to sleep, what kind of work you can and must do, etc. is pretty fundamental to human dignity and autonomy. I thought the standard concerning punishment is it not be cruel and unusual.

Is requiring someone convicted of rape to refrain from sex outside of marriage cruel and unusual?

exhelodrvr1 said...

"Also, isn't the essence of statutory rape laws that minors cannot give consent because they lack the necessary maturity to understand the consequences of their actions?"

Which is why they can make decisions on contraception and abortion on their own.

Ron Winkleheimer said...

Which is why they can make decisions on contraception and abortion on their own.

Yeah, doesn't make sense does it.

One might think that the laws are crafted so as to lessen the importance of the family and aggrandize the power of the state.

But that would be crazy talk, obviously.

Roughcoat said...

Seems to me consensual frottage would keep a lot of young people out of trouble.

I didn't know what "frottage" means but I had a bad feeling about that word. So I looked it up. I still have a bad feeling about it. Queasy, like.

SeanF said...

Dang it, Bill R, you beat me to the punch.

But, if it were me, I'd just leave off the "if" condition altogether:

"...a condition of that will be you will not have sexual relations with anyone except your lawfully-wedded spouse."

HoodlumDoodlum said...

Wiki - Nikah mut'ah: Islamic Temporary Marriage

HoodlumDoodlum said...

This judge should think a little more deeply. After all it's well-established that "at the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." This person defines his concept of existence in a way that includes having lots of sex and sexual partners, and preventing him from living in that way is a deprivation of liberty that I doubt parole restrictions can allow.

By the way, what's all this I hear about "intensive programming" to change a person's sexual behavior and/or orientation? I thought we were all super-against that--isn't that one reason we're supposed to hate Mike Pence? Some people want to pray the gay away, and subject gay people who consent to the "treatment" to intensive programming and education designed to change them--and the nation finds that abhorrent, right? That's why Pence is a monster, isn't it, that he has some vague affiliation with some group that believes in "intensive programming" for homosexuals (and that he signed an Indiana law that allowed those groups to continue their "work")?

Private groups working to change the sexual beliefs, behavior, and orientation of consenting (homosexual) adults = basically Hitler.
The State making a person submit to work to change his sexual beliefs, behavior, and orientation as a condition of his parole = Ok.

This guy should have tried the "baby I was born this way" defense, I hear that works pretty well.

Jim said...

I always thought of marriage as the ultimate evidence of consent. The rest was just negotiations among time, place, etc.

Matthew Sablan said...

"Is no sex until marriage (for a person convicted of rape) like no drugs/alcohol (for a person convicted of a DUI)? There are (at least) 2 dimensions to this question: 1. The causal connection between the forbidden activity and the criminal offense, and 2. The centrality of these activities to fundamental human dignity and autonomy."

-- Can someone convicted of a DUI get an exemption for wine taken during Communion? I'd assume "no" since you can have Communion without wine, but what if I'm wrong (being not Catholic, super likely I'm wrong, or that certain sects -- man does that have a negative connotation to it -- may say I'm wrong. Who knows?)

Comanche Voter said...

With this kid Idaho sheep ought to be nervous. And there are a lot of sheep in Idaho. And it won't violate the terms of the judge's order.

Meade said...

"Meade, How's retirement working out for you?"

Blissfully well.

Trumpit said...

I would not want the judge castrated (that's cruel and unusual) just neutered, so he can't reproduce.

Owen said...

If he takes the parole deal and then hooks up with some sexual partner --outside if marriage, adult, consenting-- is the partner guilty of a crime, helping him violate parole?

Laslo once again DOMINATES.

Bad Lieutenant said...


This guy should have tried the "baby I was born this way" defense, I hear that works pretty well.
2/7/17, 10:15 AM


Too much work! If he would just convert to Islam he'd be in the clear.

Crazy Jane said...

Good luck with that order, judge. This young fool lacks character and simple self-control. "Education," which seems to have had no effect on him so far, is unlikely to make a difference. Just paste his picture on light poles around town so careful young women and parents are warned and can be on guard.

Alex said...

At what point do you say America is at the level of Sodom and Gomorrah?