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Unique strategy at heart of sexual-assault defense
Published: Sunday, July 29, 2007
By Adam Silverman
Free Press Staff Writer
A Williston man facing allegations he had sexual intercourse with a teenage girl the state placed in his home is treading new legal ground and employing a unique defense strategy, claiming the girl was not a foster child so therefore he did nothing wrong.
The 37-year-old man, whom The Burlington Free Press is not identifying in order to protect the identity of the alleged victim, has pleaded not guilty to two felony charges of sexual assault on a foster child. He is free on conditions pending trial, although prosecutors have brought a misdemeanor count of violating those conditions. The man also denied that charge.
He is among the first Vermonters to face up to life in prison if convicted of these particular charges. Last year, the Legislature raised the maximum penalty from a 35-year cap, said Diane Wheeler, a deputy Franklin County state's attorney.
Franklin County agencies are handling the case because of a potential conflict of interest involving the sex-crime law-enforcement agency Chittenden Unit for Special Investigations, Wheeler said.
The girl was 17 last summer when she began having sexual encounters with the man, according to a sworn police account written by Detective Trooper Richard Desany of the Northwest Unit for Special Investigations. The young woman, who turned 18 this year, told police she did not resist the man's advances because the suspect was "hard on her."
"She figured her life might be easier if she just went along with it," Desany wrote. "She said she was not ever explicitly forced or coerced into having sex, she just relented."
Most of the half dozen or so encounters occurred in the girl's bedroom at the suspect's home, which he shared with his wife and two young children, according to Desany's account. There were also some 15 incidents of inappropriate touching that occurred in a car, the detective wrote.
A matter of definition
The suspect, who was charged in December, is accused of violating a section of state law that reads, "No person shall engage in a sexual act with a child who is under the age of 18 and is entrusted to the actor's care by authority of law or is the actor's child, grandchild, foster child, adopted child, or stepchild."
Under other circumstances, the age at which Vermont law allows a person to consent to sexual activity is 16 -- and that's the crux of the defense argument.
Lawyer Bob Katims contends the girl did not qualify under state law as a foster child at the time of the sexual contact, and even if she did, the 17-year-old was solely in the care of the suspect's wife. If the arguments succeed, the charges would be dismissed, which Katims requested in a motion filed last week.
"Absent the allegation that (the girl) was (the suspect's) foster child, no criminal activity could be alleged as (the girl) was over the otherwise applicable 'age of consent' in Vermont," Katims wrote. "There is no allegation of lack of consent, threats of coercion or placing (the girl) in fear."
Wheeler has until Aug. 7 to reply in writing to the dismissal request, and she declined comment on the issue.
Katims argues the girl was not a foster child because the state law suggests that term applies only to people 16 and younger, and he notes that no specific statutory definition exists for the terms "foster child" and "foster parent." Given that, Katims wrote, just because someone holds a license to operate a foster home "does not mean that an individual placed in your home automatically becomes your 'foster child.'"
The girl initially was placed at the suspect's home in August 2005, when she was 16. Placement documents name the wife only, but not the man, and payments for the girl's care were made only to the wife, according to Katims' motion. Accordingly, Katims contends, the girl cannot be considered the man's foster child.
Taken together, those details mean the suspect did nothing wrong, the defense is arguing.
"Yeah, it's a technical defense, but it's a crime that is defined by your status," Katims said in an interview. "If you are not a particular person, your conduct would otherwise be legal."
Suspect's statements
The suspect, according to the detective's sworn statement, told police his activity with the girl was mutual -- "It takes two to tango," he told investigators -- and that her allegations could stem from anger about not being allowed to keep a car.
The man also conceded his actions were the result of bad judgment, and he thought what he did might have been illegal, according to Desany's account.
That's immaterial, though, Katims said.
"Whether you believe something is illegal is really irrelevant to whether or not it is illegal," he said, and added this case is out of the ordinary. "We see every day issues that are crimes, and the question is who did it. It's a lot more rare for that to be reversed."
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