Statutory Rape Case Study: The Ethical Necessity Of Prosecutorial Discretion

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Reason tells the troubling story of computer science majoring college student Zach Anderson, 19, who made the acquaintance of a girl  on the “Hot or Not?” app. He was in Indiana, she was in Michigan, a short drive away. They arranged a sexual liaison, a one-time hook-up. The girl lied about her age, though, in person and on her website profile: she was really just 14, just like innocent Larry “Pinto” Kroger’s seductive girl friend in “Animal House” (shown above in her last-second moment of candor*) and thus unable to legally consent to sex. Unlike Pinto, Zach’s fate wasn’t amusing. He  was arrested and tried.

The girl admitted that she lied about her age, and her parents didn’t blame Zach. They asked that the case be dropped. It wasn’t. Without a defense on the facts of the case, Zach made a plea bargain, pleading guilty in exchange for the prosecutor’s promise not to oppose his request for leniency under a Michigan provision for first-time sex offenders under 21 that allows them to avoid off the sex offender registry. The prosecutor then double-crossed him, technically not opposing leniency but reminding the judge that he had rejected such appeals to the leniency provision in the past. (Yes, that is opposing it. Yes, that’s unethical. Yes, the prosecutor is an asshole.)

Then Berrien County District Court Judge Dennis Wiley sentenced Anderson to 90 days in jail and placed him on the Sex Offender Registry for 25 years, lecturing him:

“You went online, to use a fisherman’s expression, trolling for women to meet and have sex with. That seems to be part of our culture now: meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this whatsoever.”

After he gets out of jail,  Anderson will spend five years on probation, prevented from living  in a home where there is internet access or a smart phone. His major is now impossible; this will affect his entire career. He is forbidden to talk to anyone under age 17, except his brothers, and if he does, he will go back to jail.

Obviously, this is a wildly excessive and unjust result, and Zach stands only fourth in line regarding blame, fault, and accountability, fifth if you count a legislature that passed the careless law he was convicted under.

Every adult has a duty to know whom he can and cannot have legal sex with; there is nothing wrong with the theory behind statutory rape laws. A victim’s plausible misrepresentation of the power to consent to sex, however,  should be a full and complete defense to a charge of statutory rape. In cases like this the adult is the victim unless the girl looked 12, he suspected that she was lying and any reasonable person would. That does not appear to have been the case.

The judge, from his statement, appears to have thrown the book at Zach for conduct that he disapproves of but that is perfectly legal. His ethical and moral disapproval of internet hook-ups is a bias, and if he couldn’t get past it to issue a fair sentence, then he had an obligation to hand the case over to an ethical judge who could.

The prosecutor, as I already noted. showed himself to be an asshole by his bait-and-switch plea deal. He should be fired for that stunt. In more general terms, his ethical and competent conduct in this case would have been to execute prosecutorial discretion and  drop the case. Who is served by a prosecution like this? Certainly not society, and even if there were some arguable benefits, like sending a warning to horny computer nerd on the prowl, the harm done to Zach Anderson is far beyond anything the justice system should use to send a message like “Make sure your hook-ups bring a valid birth certificate and at least one adult who vouches for their age.”

The girl, meanwhile, should face legal consequences for this, as should any under-age individual who misrepresents his or her age to have sex. If there are no laws that allow prosecution for this conduct, there should be. Obviously ethics alone won’t work: teens are almost as incapable of ethical analysis as they are legal consent.

As for Zack, his lawyer is seeking to withdraw his guilty plea because of the prosecutor’s unethical breach.  Yes, Zack Anderson behaved irresponsibly, but the justice system has thoroughly disgraced itself.

* I have been corrected: Pinto’s date was 13, not 14.

31 thoughts on “Statutory Rape Case Study: The Ethical Necessity Of Prosecutorial Discretion

  1. Has Zach considered filing a bar complaint? [I know that in Virginia, the state bar gives a pass to prosecutors for things they would hang a defense attorney for, and many defense attorneys are reluctant to file bar complaints against the same prosecutors with whom they will have to continue to deal.–that’s why the Virginia Association of Criminal Defense Lawyers has a bar complaint committee, which has filed a fair number of bar complaints–very few about which the Virginia State Bar has done anything.] But still, if more and more prosecutors were called to task for their unethical conduct, this kind of stuff might not happen.

    BTW, I had a statutory rape case once were the girl looked like she was 19, was rebelling against her mother, and was doing the whole apartment complex. My guy was the one with whom the mother caught her. In my opening argument to the jury, I read Thurber’s “The Little Girl and the Wolf.” I think the moral of that story applies here as well–maybe the state legislators should read it.

      • No, I didn’t win. All of the sordid details came out in trial, and I argued in closing that the jury should find him guilty only if they thought it appropriate under all the circumstances–after which the judge jumped on me for arguing jury nullification, but, heck, as they say, you can’t unring the bell. The jury gave him the minimum, even though he did have something of a record (theft, mostly, as I recall)..

    • Here’s the story, for those who aren’t Thurber afficianados:

      The Little Girl and the Wolf (1939) by James Thurber (1894-1961)

      One afternoon a big wolf waited in a dark forest for a little girl to come along carrying a basket of food to her grandmother. Finally a little girl did come along and she was carrying a basket of food. “Are you carrying that basket to your grandmother?” asked the wolf. The little girl said yes, she was. So the wolf asked her where her grandmother lived and the little girl told him and he disappeared into the wood.

      When the little girl opened the door of her grandmother’s house she saw that there was somebody in bed with a nightcap and nightgown on. She had approached no nearer than twenty-five feet from the bed when she saw that it was not her grandmother but the wolf, for even in a nightcap a wolf does not look any more like your grandmother than the Metro-Goldwyn lion looks like Calvin Coolidge. So the little girl took an automatic out of her basket and shot the wolf dead.

      (Moral: It is not so easy to fool little girls nowadays as it used to be.)

  2. Ethics and fairness seem to go out the window the minute underage (and even of age, but not yet college graduate) girls are involved. I was at a WW2 event recently, with a fair amount of reenactors and friends dressed in uniforms and period clothing, including some women wearing “pinup” outfits. I saw two such young women sitting under the wing of a C-47, asked if I could take a picture, and, though the answer was in the affirmative, I then asked if they were both of age. They answered that one was, one wasn’t (17), and I decided not to shoot, since this raised too many questions and I didn’t want to be confronted by an angry, irrational father over a picture of his little snowflake, never mind he brought her to the show or let her come with her friend, never mind someone let her dress up in 1940s pinup clothes and makeup, never mind anything, no one would care, daddy was defending his daughter and all else goes out the window.

    I don’t doubt that the same father instinct probably entered into both the judge and the prosecutor’s minds when working this case. Neither of them likes the idea that their little princess could be dishonored by some prowling computer geek who just needs to sweet talk them into meeting and then it will take its course. The fact that the little princess was on the computer unsupervised and able to slip away for a tryst doesn’t speak well of her parents, and she may well have been looking for some “action” herself. Again, the parents, and prosecutors and judges who are also parents, don’t want to hear it, this predator dishonored their daughter and that’s it. This mentality, which is, I think, either feeding or being fed by the new “rape culture” phenomenon, leaves a hooker-upper in pretty precarious circumstances. Frankly the best bet is to try to build a real relationship or stay celibate.

    The prosecutor’s tactics are a bit reminiscient of a trick in the early Law and Order in which prosecutor Ben Stone tells a bad guy who isn’t willing to cooperate without immunity that New York County will bring no charges against him for anything he testifies to on the stand. As soon as he’s done testifying, two King’s County detectives arrest him and frog-march him from the courthouse to face charges for criminal acts he committed in Brooklyn. When he protests, Stone sneers and tells him he should have had a better lawyer, when he was the one who pulled a fast one.

    There probably should be a statute that provides for consequences for underage individuals who trick adults into illegal acts, particularly of a sexual nature, but no such law will ever pass, since it would open up an additional avenue in every such case to attack the victim, which is already a roundly despised (though perfectly legitimate) tactic on the part of criminal defense attorneys. Any legislator who proposed such a law would have RAINN and thousands of angry parents all over his case, and any executive who had such a bill hit his desk would quickly veto it if he hoped to keep his office.

    The fact is that when the word “underage” is mentioned, ethics, calm, and rationality evaporate like avgas on blacktop. That’s the way it is, that’s the way it will always be.

      • Uh, Ben Stone WAS played by Michael Moriarty. Sam Waterston played John “Jack” McCoy, who was also not above dirty tricks, of course if you asked him he always had a way out…

        • Oops. I read “Ben” and thought “McCoy,” because that seems like a Jack move to me. Then again, I haven’t seen those old L&O episodes for a long time, so I may be remembering Ben as more ethical than he deserves.

          • Ben was somewhat more ethical than Jack, and had some stringent moral principles (he fought hard to keep a murderer in NY rather than let him be tried in CT for a murder there, which at the time would have resulted in the death penalty, which he was opposed to), but he was not above bullying or gaming the system up to a point. McCoy, on the other hand, would use any trick he could to win a conviction and get the maximum penalty. I think it says something that Ben Stone was portrayed as a still-practicing Catholic (although he may have been divorced) while McCoy was portrayed as someone who had lost his faith and in fact scoffed at religion, and viewed rules and laws as means to one end – convicting and punishing whoever was the accused in whatever file hit his desk.

              • I remember an episode in which an ADA was fired because she was not convinced that the guy being tried was guilty. Turned out she was right, but the guy who eventually ran for President said she was not being a team player, and adios. Not a good example for prosecutorial ethics.

                • my friend in Texas was denied the option to press charges of a man 20, and his daughter 14. He forced himself on her, and gave her an STD which was proved along side evidence which concluded the proof of rape. he has contacted several people included the media, senators,and governor of Texas of this matter. He received no help what so ever.

  3. BTW, there were six “eye candy” assistants: Claire Kincaid (Jill Hennessy), the only one he was banging, although he’d bedded at least 2 more prior, Jamie Ross (Carey Lowell), Abby Carmichael (Angie Harmon), Serena Southerlyn (Elizabeth Rohm), who was “outed” in her final epi, although she’d flirted with men earlier in her run and mentioned dating at least one man, Alex Borgia (Annie Parisse), who was killed off because the actress refused to sleep with one of the higher-ups, and Connie Rubirosa (Alana de la Garza), who also assisted Linus Roach’s Michael Cutter, apparently the series didn’t want to move the female DA up and give her some younger guy as an assistant.

    • I forgot about Alex. Carey Lowell was, by far, my favorite, until she ruined everything by marrying Richard Gere. Rohm has returned, plus some radical cosmetic surgery, to have a recurring role on “Stalker.”

      • I find it interesting that usually it was the “girls” who told the guys that they were overreaching, which all three main male prosecutors did – Michael Cutter almost suborned perjury. Then again, the case was usually the guys’ to win. It’s a bit easier to be ethical when your name isn’t the name on the file and you aren’t going to be the one explaining to the boss why the case was lost. Ironically, Serena Southerlyn perhaps took ethics – and liberal morals- too far, forgot which side she was playing for, and was fired by Fred Dalton Thompson’s Arthur Branch for being too sympathetic to defendants and undercutting both McCoy and Branch to the point where, although arguably justice was served, a case was still going into the record books without a conviction.

  4. This sounds like the sort of prosecutor who would turn a teen into a sex offender for sending a nude pic of themselves to a significant other.

  5. Gotta love a Larry Kroger reference. Isn’t that picture right before she takes off her bra and the wads of tissue paper float to the ground? Isn’t the next scene of Larry pushing her up to her mother’s and Carmine’s house in a shopping cart. And isn’t that the same night her mother spends the night with what’s-his-name in his lounge lizard room?

    Maybe all involved with this case should be put on double secret probation.

  6. My son is currently sitting in a Texas prison for the next (up to) five years for the exact same thing. The only difference, besides the severity of texas law, is the name of the App (MeetMe in my son’s case). In Texas the charge carries up to 20 years in prison and LIFETIME on the registry. When my son has children, he will not be able to attend their birthday parties, go to parent-teacher conferences, attend band concerts, football games, graduation ceremonies. He will not be able to pick them up from school if they are sick or hurt. He will not be allowed to visit them in the hospital if they are seriously ill. He will be arrested if he is caught simply driving by “any place that children gather” which includes (this is the short list), elementary, middle and high schools, private schools, daycares (public and private), parks of any kind, playgrounds, public pools, (including apartment complexes with pools or playgrounds), any restaurant with a play area, amusement parks, bowling alleys, movie theaters, snow cone stands (yes, that is specifically on his list), school bus stops, county or state fairs, rodeo’s, and the list goes on and on. No, he isn’t on house arrest. This is the law in Texas. When he is 70 years old, he will still be on the registry, with all its “rules”, for a mistake he made (without knowing he was doing it) when he was 19 years old. Believe or not, I’m a paralegal, my dad was a criminal defense attorney for more than 20 years before retiring, and we had no idea. Unfortunately, we relied on a court appointed attorney who had no interest in doing anything other than collecting his fee from the county. We are trying to come up with enough money to get his new lawyer to be able to file an appeal but have little hope. All my hopes are for this family and their son, to be successful and that he can move on with his life.

  7. I’d have to read the context, but how is telling the judge that the prosecution has previously rejected such deals not an argument for respecting the prosecution’s decision (as in, “normally I don’t take these offers to deal, your honor, but …”)?

    • You have to be kidding. “And may I remind you, your honor, that you have rejected such appeals in similar cases” is a call for the judge to ACCEPT the leniency plea? Give me a break.

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