Category Archives:Newsletter

Affluenza: The Criminal Justice Infection

In Texas, a 16-year-old stole liquor from Walmart and drove with a blood-alcohol level 3 times the legal limit. He killed 4 people. His sentence: 10 years’ probation and treatment (at a posh clinic). The lawyers defending the 16-year-old Texas youth argued that their client suffered from “affluenza” which usually refers an acquired irresponsibility based on years of extraordinary privilege. In other words, the young man had been so pampered
that he lacked the ability to appreciate the likely consequences of his actions. Really? My experience informs me that no 16-year-old African-American (even in Texas) would be treated as leniently.

Sadly, affluenza has so infected and perverted state criminal justice systems that lawyers confidently extract lenient treatment for their clients who are white, wealthy, employed, and come from “good” families. Typically, the young African-American or Hispanic accused is poor, unemployed, and from a broken home. The white client is more likely to go home. The minority client is more likely to go to prison. At the state level, there can be gross disparities from state to state, from counties within the same state and even within the same courthouse.

It is time to conduct a national review of sentencing procedures among and within the various states and to push for more enforceable fairness in sentencing. At the Federal level, the United States Sentencing Commission (USSG) has developed a maze of regulations designed to produce relative uniformity in sentencing for federal crimes.
Until something like the USSG is adopted by the states, the affluenza epidemic will continue. The burden will continue to be on local counsel to vigorously defend a client’s constitutional rights and aggressively examine whether the client is being treated fairly regardless of race or socio-economic status. We cannot accept what too often appears to be the norm.

Minister/Member Sex: Church May Not Be Liable For Adult Consensual Sexual Encounter.

Is the church liable when an adult member has a consensual sexual relationship with one of the church’s pastors? This question was addressed first to the Common Pleas Court in Franklin County, Ohio when a member sued the church claiming she was “taken advantage of” by a sexual encounter with a former pastor. She claimed the church was liable for the acts of its former pastor who apparently had a history of such encounters. It was not clear the then current pastor had advance notice of the former pastor’s history. The Common Pleas Court ruled in favor of the church and the member appealed.

The Tenth District Court of Appeals held that the church was not liable because the former pastor’s conduct was outside the scope of his pastoral duties, and was not reasonably foreseeable. The Court noted that the act was planned in advance, did not occur on or near church premises, and did not arise out of a counseling session, but occurred when the pastor invited the member to his apartment, while telling her his wife was not home.

Further, the member’s claim that the former pastor “took sexual advantage” of her, fell short of alleging she was incapable of consenting, so the former pastor was not individually liable. Consequently, the church could not be held liable. DiPietro v. Lighthouse Ministries, 159 Ohio App. 3d 766 (2005).

So, the answer to the question is: it depends on the facts. The DiPietro case should be viewed with caution. The
Appeals Court took great pains to distinguish the facts before it from a situation in which a member actually is taken advantage of when not in a position to refuse consent. Also, the Court separated the place of the sexual encounter away from church property or from a church counseling session.

Teacher/Student Sex: Is It Always Unconscionable?

It seems like every week, another teacher, coach, or school employee is convicted for engaging in consensual sex with a student. The crime is designated as a third degree felony punishable by up to five years in prison. The offender is often a young person who has had no previous criminal history and otherwise is regarded as an upstanding law abiding citizen. In addition to possible imprisonment, the teacher or coach loses his/her professional license, becomes a convicted felon and is subject to designation as a sexual offender or sexual predator. Such designation may involve up to a lifetime requirement to register as a sexual predator with the local Sheriff as well as community notification.

In 1974, the Ohio Legislature enacted Ohio Revised Code § 2903.07(A)(7) with the still noble intent to guard against the vulnerability that adolescents and children have when taken advantage of by adults who are in a position of trust and authority over them. Usually, proof of a culpable mental state is required to establish criminal liability. Some laws however, impose criminal liability for specified conduct regardless of mental state or intention. R.C. 2903.07(A)(7) is one such law. It applies not only to teachers and coaches, but to anyone who occupies a position of trust and authority over students. This may include school employees such as teachers’ aides, floor monitors, bus drivers, or security guards. The conduct prohibited by R.C. 2903.07(A)(7) consists of two distinct elements. The first is that the offender engaged in sexual conduct with another person. “Sexual conduct” is defined broadly enough to cover all conceivable forms of sexual activity between consenting persons.

The second element is that the other person is not the spouse of the offender, when (a) the offender is a teacher, administrator, coach, or other person in authority at a school in which the other person is enrolled or attends; and (b) the offender is not enrolled in, and does not attend that school. Once those two factual elements are
established, a violation must be found and the actor’s intent when engaged in the sexual conduct with the other person is not relevant. The seemingly harsh penalties follow. Some discretion is preserved for the judge who hears the evidence.

A judge can consider certain mitigating and/or aggravating circumstances before imposing sentence. Often, family friends and loved ones of the convicted school employee are shocked by the apparent severity of the sentence compared to what many regard as a not so serious offense especially when the offender and the student are close in age, the student is sexually active, appears to be sophisticated in the ways of the world and may even have been the instigator of the sexual conduct. In some cases, the school employee may be more “vulnerable” than a street-wise student.

Without in any way condoning or minimizing the seriousness of the offense, it may be time to examine whether the underlying premise of the law should apply as broadly as the Legislature intended in 1974. Then as now, the
Legislature was rightly concerned about protecting individuals in a variety of situations where another might take “unconscionable advantage” of that individual. What may have appeared to be an “unconscionable advantage” almost 40 years ago may be very different in the present social context. It is at least conceivable that there will be circumstances where the school employee did not take unconscionable advantage of a student. Consequently, it might be worthwhile to question whether and to what extent an otherwise “good person” should suffer the full brunt of the statute’s punishment when the student may not be as blameless or innocent as the Legislature may have presumed. Mental health experts, who may have opined about the inability of adolescents to make mature informed decisions
in 1974, may have a somewhat different view today. At any rate, the number of people affected warrants a second look at this statute.