I hope everyone had a happy holidays. Normal posting will resume tomorrow.
At Sentencing Law & Policy, Doug Berman has posted about an appeal arguing that a sentence of 75 months was excessive for first-degree sexual abuse. In Oregon v. Rodriguez, the actual conviction was based upon a single incident where the defendant held the victim's
face head (edited after comment - thanks) into her breasts. However, the court notes a long history on inappropriate conduct by the defendant:
Defendant met the victim's mother and siblings at the victim's basketball games. She developed a close relationship with the family, including the victim. She visited them at their home frequently--for a period, she went there nearly every day after work. She helped the victim with his homework and often ate with the family. She sometimes gave the victim a ride home from the club and drove him to school in the morning. All of defendant's contact with the victim outside of club-organized activities violated the club's rules.
Over time, defendant's relationship with the victim became exceptionally close. Their conduct at and outside the club raised concerns among other staff members and became the subject of rumors among other children at the club, who called the victim defendant's "boyfriend." Defendant and the victim frequently hugged each other, and defendant sometimes put her arm around the victim when they walked. Defendant occasionally allowed the victim to sit on her lap in her office. He kissed her on the cheek between 10 and 20 times. She sent e-mail messages to him in which she said, "I love you" and "love you lots." The victim sent similar messages to her, including one that said, "[S]ee you later Babe I love you for ever," and another that ended, "I LOVE YOU SO ................. MUCH." Defendant took the victim with her on several trips to Bend and Spokane, two of which were overnight trips. The two were frequently alone together in her car, at her apartment, and at his home. They were seen alone together in her office at the club with the door closed.
The trial court found that the required sentence (under a provision called Measure 11) was cruel and unusual and decided a 16 month sentence was appropriate. However, the Oregon Court of Appeals said a sentence of 75 months was not constitutionally excessive and remanded the case.
My guess is that the case fits the rubric of a "relevant conduct" case even though that language isn't used here. The victim was probably unwilling to testify (the event that was the basis for the charge was witnessed by a co-worker) because he still believed in his relationship with the defendant. The appellate court by mentioning the emails and other details of the defendant's conduct seemed to think that a lot more serious illegal activity had occurred. However, without the victim's testimony, there was not sufficient evidence to prosecute for that activity. As a result, the court used its judgment to conclude that the 75 month sentence for relatively minor conducted didn't "shock the moral sense" based upon what the court thought had actually occurred.
I'm a bit troubled by the reasoning of the court because the charged conduct was so minimal. However, with the many acquitted conduct and relevant conduct decisions around, I've probably become jaded to this sort of thing. Nonetheless, like the crazy child pornography sentences in Arizona, I think these sentences are hard to justify under any theory that includes a notion of marginal deterrence.
Edit: Berman has added more thoughts here.