According to the law
Kansas Gov. Kathleen Sebelius signed into effect a series of sex-crime statutes commonly referred to as “Jessica’s Law” in 2006.
According to the law, a first-time sex offender convicted of engaging in a sexual offense oroffenses with a child younger than 14 faces a minimum life sentence with the possibility of parole only after 25 years. For first-time offenders, the punishment is the equivalent of that for first-degree murder.
Modeled after a Florida law, the legislation is named for 9-year-old Jessica Lunsford, who was abducted from her home in Homosassa Springs, Fla., in 2005 and was raped and buried alive. According to the Citrus County Chronicle, sex offender John Couey was convicted in the case and was sentenced to death in 2007.
Since then, 42 states, including Kansas, have passed similar acts modeled after the law.
The intent, state legislators say, was to dole out harsher punishments for predators who prey on young children and to deter repeat offenders.
Since the law was enacted July 1, 2006, one often unsuspecting group has routinely been caught in the complicated web of state sex offender laws — young and high school couples.
Kansas Rep. Bill Feuerborn, D-Garnett, said any law comes with those who might unintentionally be effected.
Referring to couples with a great age difference, Feuerborn said, he thinks a 20-year-old should make better decisions than dating someone younger than 18.
Do teens know?
Ottawa High School, 1120 S. Ash St., provides sexual health and relationship education for students throughout their freshman year in conjunction with their physical education class.
Carrie Shaffer, OHS health and physical education teacher, said although the school’s stance on sex emphasizes abstinence, students are shown a board-certified video that also provides information about sexually transmitted diseases and pregnancy.
With students of varying ages thrown into the mix together at the high school level, Shaffer said, she thinks it is fairly normal for seniors to date freshman, and she doesn’t think that itself sends up a red flag to anyone.
She said as long as the couples are practicing abstinence, they have nothing to worry about.
If they aren’t, under current sex offender laws, “consenting” teenage couples — especially young adult males — could face serious penalties for engaging in what some deem as “normal behavior” if one of the teens is younger than 14 and the other is older than 18.
The Ottawa Police Department’s Domestic Violence Unit — consisting of officers and community members — gives a four-day presentation to students that coincides with the sexual health and relationship education. It focuses on such topics as dating violence and the legal age of consent.
Steven Burkhart, a domestic violence detective with the unit, said while the presentation doesn’t specifically address Jessica’s Law by name, it does cover the penalties associated with it.
“[It] covers the age of consent, basically saying if you’re this old and the other person is that old, then you can’t consent to legally have a sexual relationship with them,” Burkhart said.
When asked if he thinks students understand the penalties and what they could be facing, Burkhart said “they definitely seem to know that statutory rape exists.”
Enforcement of Jessica’s Law usually arises following a documented complaint with the police department. In many cases, it is the victim’s parents.
Ottawa Police Chief Dennis Butler said once that information is verified, it then is forwarded to the Franklin County Attorney. The Franklin County Attorney’s Office declined to comment for this article.
Butler said he personally hasn’t investigated any case involving the law and declined to give an opinion of the statute saying it wasn’t his place.
“I take an unbiased approach,” Butler said. “Though I’ve read that there are some people that disagree with how the law is written.”
Caught in the web
Emporia attorney Frederick Meier, whose legal representation often brings him to Franklin County, said he thinks Jessica’s Law paints with a “pretty broad brush.”
“What so often happens when they enact these statutes is they want to punish the worst of the worst, but they craft it in such a broad area they don’t distinguish between crimes,” Meier said. “It’s solely [based on] the age of the victim and not the act that was committed, so forcible rape contains the same punishment as taking a nude photograph.”
Meier, who has two grown daughters, said sexual abuse of a child is a parent’s worst nightmare but he thinks a statute should truly fit the crime.
“I think the statute really misses the mark when it’s applied in such a broad manner,” Meier said.
Charles Branson, Douglas County District Attorney, said one of the complaints of prosecutors is that the law no longer differentiates between crimes.
“You can easily paint a picture where you can say this may be overly applied where we have low functioning adults where they are 18 and found in a situation with a 13-year-old,” Branson said. “That is a situation where the prosecutors may look to try and fashion departure to take into consideration all factors.”
A departure is when a judge deviates sentencing from the presumptive sentence, which is based off a grid of criminal history and severity, based on mitigating evidence and substantial and compelling reasons, Meier said. Downward departure, for example, can include less prison time or probation.
Branson said his experience, however, is that when Jessica’s Law normally is invoked it does not involve a consensual relationship.
‘Romeo and Juliet’ scenarios
For young couples who choose to engage in sexual relations there is, to an extent, legal protection under the law.
In Kansas, 16 is the legal age of consent. According to state law, no matter what, a child younger than 14 cannot legally consent to engage in sexual relations.
But if the child is between the ages of 14 and 16, and their partner’s age is within four years, then it does not invoke Jessica’s Law.
For relationships between teens that fall outside of those boundaries when the child is younger than 14, there is not much legal wiggle room.
An 18-year-old Lebo man recently found himself in Franklin County Jail after Ottawa police arrested and charged him with three counts of sexual assault of a child.
James D. Lewis was arrested Aug. 4 on suspicion of rape, aggravated indecent liberties with a child and solicitation of a child — all felony charges. Prosecutors say the incident occurred June 15; the girl was 13 years old at the time — thereby invoking Jessica’s Law.
For all three counts, Lewis is facing a minimum life sentence with the possibility of parole only after 25 years.
Since the law was enacted, there have been slight changes and interpretations to allow for more discretion from the prosecutors and judges.
“ … We’re still going through the process of figuring out what prosecutors can do and how departures can be done,” Branson said. “It is still new enough and there is some room to move around with legal acrobatics to try and make the punishment fit the crime.”
Since her grandson’s conviction, Kathryn Schlotzhauer said, she thinks the laws are getting ridiculous and that both parties should be subject to punishment.
“Looking at age, the mentality is ignored,” Schlotzhauer said. “Those girls are just as smart as what an adult woman is.”
Kansas Sen. Pat Apple, R-Louisburg, said he thinks people have to legally draw a line somewhere.
“Whether it’s 13 or 14,” Apple said. “I think the main focus is to try and have some protections for the children and send the pedophiles to jail for a long, long time.”
When asked about the young couples and young men who fall victim to the law, Apple said whenever you have a law, you are going to have people fall “inside that rule.”
“Hopefully, though, the system will work and you will have some degree of justice,” Apple said.
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Copyright, 2011, The Ottawa Herald. All Rights Reserved.
Angelique McNaughton 