Lawyers, cops find faults in abuse law

Toughening prison sentences for convicted child rapists and molesters looked like a strong stance when legislators passed Jessica's Law earlier this year.

But those who must enforce it say it may make their jobs tougher and could result in fewer convictions.

The longer prison sentences, prosecutors and police say, are likely to reduce the number of guilty pleas and increase the number of trials in which the key witness is usually a frightened child.

"These cases are so hard," said Anderson County Attorney Fred Campbell. "Parents want to push for a trial. But I've found that testifying in these cases can be much harder on the child than the actual abuse."

Marc Bennett, an assistant Sedgwick County district attorney who prosecutes child sex crime cases, agreed. Jessica's Law "may have been the expedient political thing to do, but it didn't do a thing to help the street-level prosecutors achieve the goal," he said. "It just guaranteed more trials, which affects the kids."

The law does allow a judge to reduce the sentence -- if the defendant requests it.

As a result, a decision on whether a defendant chooses to go to trial could now hinge on the judge's reputation for following plea agreements, said Dan Monnat, a Wichita criminal defense lawyer.

"It's better if your client gets the book thrown at them after a trial, rather than getting the book thrown at them after they've given up their right to contest their guilt in front of jury," Monnat said.

'Comparable to murder'

The new Kansas law is patterned after Jessica's Law in Florida. It's named for Jessica Lunsford, a 9-year-old who disappeared in 2005. Her body was found nearly a month later buried behind a home where a previously convicted sex offender had been staying.

Kansas' law went into effect on July 1 and requires life prison sentences for sex crimes carried out by adults against a child 14 or younger -- regardless of the offense. First-time offenders are eligible for lifetime parole after 25 years in prison.

In the three years before the law was passed, child sex offenders received an average of one to 13 years in prison, depending on the crime, according to information from the Kansas Department of Corrections.

"What they've done is make these sentences comparable to murder," Monnat said.

Attorney General Phill Kline said this past week that the tougher sentences were needed to discourage those who prey on children. "Web sites teach pedophiles where to go to find children and where laws are weak," Kline said. "Kansas laws were so weak that our state was a target destination for this type of activity."

Prosecutors say the law could result in fewer prosecutions of child sex offenders and in trials that end up setting more guilty people free.

"The thing about plea bargains is it helped keep kids off the witness stand," said Kelly Robbins, director of the Western Kansas Child Advocacy Center in Scott City and a former agent with the Kansas Bureau of Investigation.

What the offenders who prey on children count on most, Robbins said, is that no one will believe their young victims.

"Adults are bad witnesses in sex cases," Robbins said. "Think about putting a 5-year-old on the witness stand. And if you have a prosecutor who does not know how to get a child to tell in their own words what happened."

Bennett remembered a 6-year-old witness who wet herself on the witness stand -- in an empty courtroom, in anticipation of testifying.

Paul Morrison, the incoming Kansas attorney general, said it's still too early to the see the effects of Jessica's Law showing up in court. Many of the cases being prosecuted since July 1 will probably start showing up for trial next year.

But Bennett is concerned that fewer cases will turn out like the one that wrapped up last February in one of the worst cases of incest and family rape Wichita had ever seen.

A father and son were sentenced to more than 27 years in prison, and another son to 5 years, for continuously raping three girls in the home -- one as young 10.

"I was proud of that case, because I was able to work out pleas for maximum sentences, and the girls never had to testify," Bennett said. "But there's a difference between pleading to 27 years and life."

The Sedgwick County district attorney's office estimates that the number of jury trials will increase by 25 percent for the three full-time prosecutors in its sex crimes unit. Each could face having to prepare for more than one trial per month: a huge burden in the legal system.

Given the difficulty of building such cases, a prosecutor could decide not to file charges, especially in rural areas where county attorneys and sheriffs' office are ill-equipped to investigate such reports, Robbins said.

"You get a prosecutor not used to handling these cases, and you may find fewer charges are going to be filed," she said. "Or because of the new sentencing laws, you may find these cases charged as a non-sexual offense, like aggravated battery, where they can have a better chance of working out a plea."

Filing a case as a lesser crime is called charge bargaining.

Morrison said he plans to track how prosecutors apply the new law after taking over as attorney general next month.

"What you don't want to see happen, because of this law, is a massive increase in charge-bargaining, and you don't want to see an increase of cases that don't get charged, because prosecutors don't want to utilize it," Morrison said this past week.

Seeking justice

Lawmakers could have made the tough sentences optional for the worst cases, prosecutors say, giving them a sharper weapon in plea bargaining.

"It's like a Hard 50," Bennett said of a sentence that can be sought in a murder trial. It provides for 50 years before parole eligibility. "In sex cases, there are times when it's appropriate, and we'd use it."

Sen. Phil Journey, R-Haysville, who practices criminal law, tried to give prosecutors that option during hearings on the bill back in January.

"We need more people admitting to these crimes," Journey said. "Now we're likely to get less people admitting them. We're going to see more trials, and with it the chance more guilty people will go free. You're also going to see innocent people going to prison for a long time, because these cases often don't have any forensic or DNA evidence."

Journey's amendment passed the House but failed in the Senate.

Sen. Kay O'Connor, R-Olathe, sat by Journey on the Senate Judiciary Committee but voted against his amendment.

"I felt like that put the burden on the prosecutors to show why the sentence needed to be enhanced," O'Connor said. "I thought you should start with the high sentence and make the defendant show a judge why they should get less. These are just too horrendous of crimes to do otherwise."

That version of the bill was signed into law in May. Under it, a 19-year-old who strokes the thigh of a 13-year-old neighbor faces the same prison sentence, for example, as a 50-year-old man who has intercourse with his 5-year-old daughter.

"In the real world, while it may seem that all these cases are all alike -- they're different," Morrison said. "Anybody who tells you all these cases are the exactly the same is not telling you the truth."

Getting the convictions

Sex offenders won't face the tougher sentences without convictions, and there are several reasons prosecutors say sex crimes against children are particularly tough to prove.

Children often don't reveal what happens for a long time. They may not know what's happening is wrong. They may be ashamed. There often is no forensic evidence or injury.

"There is no injury or trauma to a child 80 percent of the time, even when the child presents with a history of penetration," said Christine Ladner, another Sedgwick County prosecutor.

That doesn't count the potential jurors who don't want to admit child molesters come from all income levels, neighborhoods and communities.

"There's what we call an 'ick factor' to these cases," Robbins said. "Most people just naturally want to assume this type of thing doesn't happen."

But it does.

One in four girls and one in six boys will be sexually abused by the time they're 18, Robbins said.

Some prosecutors say it would be more helpful if the Legislature focused on supporting their efforts to obtain convictions rather than extending sentences.

For example, a statewide task force could provide trained investigators and prosecutors experienced in sex crimes.

"You smell a dead body in western Kansas and a KBI van shows up with crime scene tape and people are digging up a field," Bennett said. "A little girl gets raped by her stepfather in Leoti, and you may get one deputy, who's trying to get home to dinner, who maybe has never had to deal with this kind of thing before.

"Give the attorney general money to hire eight prosecutors with trial experience in these cases and KBI investigators," Bennett added. "That would be something that could help."

What's next?

More trials and fewer pleas, prosecutors say, could mean putting more children on the witness stand.

Not even the victims want that.

"The standard line from murder victims' families is 'I want closure and I want him to get what's coming to him,' " Bennett said. "In a child case, the standard line is 'I want him to go to prison forever, and I don't want my child to testify. So go ahead and make that happen and call me when it's done. Well, those things are not mutually exclusive."

Lawmakers say rewriting the law now could be political suicide.

"If I would try to bring up that same amendment next session, I know what would happen," Journey said. "The postcard that goes out the week before the next election says 'soft on child molesters.' "

But Morrison said the Legislature needs to revisit the law anyway to fix some technical flaws. The way the law is written, for example, prevents any convictions before 1994 from being considered in criminal history.

"We plan to go back to the Legislature next session to try and fix some of those," Morrison said.

Morrison said Jessica's Law is a powerful tool, if it's applied judiciously.

"The good news is we're going to have a lot more sentencing horsepower for people who repeatedly abuse kids -- and that's a great thing," Morrison said. "But we need a little bit of discretion in that law to make sure justice is done."