High Court mulls sex abuse question Does intimate touching over the clothes merit six years in prison?

[Ed: Few have any idea of what actual offenses "molesters" have really committed. They hear the word "molest" and they immediately think of the most egregious sex acts committed forcefully and without consent. The range of qualifying offenses has grown dramatically over the years to include even such terrible assaults as running ones fingers through a child's hair and giving a hug. This is the hysterical  reality of sex offense prosecution and persecution today. I remain hopeful that one day most of society will look back at this period of injustice with the same horror with which we now regard the Salem Witchhunts of the 17th Century.]

The Hillsboro Argus

SALEM - An attorney for a former employee of the Hillsboro Boy's and Girl's Club told the Oregon Supreme Court Tuesday that six-plus years in prison for touching her clothed breasts to the back of a 12-year-old boy's head amounted to cruel and unusual punishment.

A Washington County jury found Veronica Rodriguez, now 28, guilty of sex abuse in the first degree after Hillsboro investigators saw her breasts touch the boy's head while she ran her fingers through his hair at the club in 2005.

At sentencing, now-retired Judge Nancy Campbell said the circumstances only merited one year and four months in prison instead of the prescribed sentence of six years and three months required by 1994's voter-approved Measure 11.

Rodriguez and attorney Peter Garlan concede that Measure 11 is constitutional, but claim its application against Rodriguez violates Article 1, Section 16 - the proportionality clause of the Oregon Constitution.

Rodriguez's case is combined with another appeal from Linn County, where 36-year-old Darryl Buck was convicted of first-degree sex abuse for touching a 13-year-old girl's clothed buttocks several times during a fishing trip.

Garlan said the girl overreacted to Buck's using his hands to help her remain upright, and her "histrionics" had an effect on the jury. The judge agreed, and handed down a 17-month sentence, appropriate for the action, Garlan said.

The state's Court of Appeals rejected both judge's decisions, and said both defendants should serve another five years.

Garlan said while it was clear there was wrongdoing, the pair's actions didn't merit the same sentence as someone who committed obviously violent acts of sex abuse or those convicted of attempted rape or attempted sodomy, as Measure 11 requires.

Rodriguez was an exemplary employee at the Boy's and Girl's Club, praised by her superiors, Garlan argued.

"There is no doubt that Miss Rodriguez, but for this offense, was an extremely positive influence on this victim," Garlan said. Even the boy's mother praised Rodriguez for helping him deal with his troubled past. But police and prosecutors said the relationship rose to an inappropriate level, with the boy seen kissing her on the cheek and sitting in her lap. A second charge of sex abuse ended in a mistrial.

When Assistant Attorney General Timothy Sylwester began his arguments, Justice Thomas Balmer took him to the wood shed immediately, noting sharply that Sylwester's brief continually used the word "rubbing" to describe the physical contact between Rodriguez and the boy, when that word was never mentioned in testimony.

"You have strong constitutional, legal argument here," Balmer said tersely. "Why did you mischaracterize testimony?"

Sylwester said he didn't feel it was a mischaracterization, but apologized if he'd made a mistake.

Department of Justice spokesperson Jake Weigler said Wednesday voters passed the measure to eliminate judges' discretion in a range of crimes. Clearly, Rodriguez and Buck fell within that range, he said. If Measure 11 is to be changed, it should be by the will of the voters or the legislature, he said.

"This court never has struck down a sentence within a permissible scheme," Sylwester said.

Justice Robert D. Durham asked both attorneys if it was the role of the court to make an evaluation of offenders, when the law only mentions "the offense." Should the court treat each offense as if it were a videotape of the act that turns on when the abuse begins and turns off when it ends?

"Does that imply there should be no investigation into the actor?" Durham asked. And did that also imply there should be no consideration of whether a defendant lied on the stand, or lied to the police?

Sylwester answered: "You don't just look at the good stuff, you look at the bad stuff, too."

As to Garlan's argument that some kinds of sex abuse were worse than others, Sylwester said it was defined by law as sexual touching with sexual intent.

"The victim has been violated, whether it lasted for five seconds or 10 minutes," he said.

The law says sex abuse occurs when it "subjects another person to sexual contact and the victim is less than 14 years of age."

Sexual contact is "any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party."

The Supreme Court is expected to return an opinion within six months.