Who Judges the Judges?

Trigger Warning Child Sexual Abuse 

This week in a ruling that shocked people across the country, A California judge reduced the sentence of a man who was found guilty of raping a 3 year old. Orange County Superior Court Judge M. Marc Kelly said that the rapist, Kevin Jonas Rojano-Nieto didn't intend to harm the girl. . In 21 years of investigating child abuse, I can tell you that thinking is not isolated, it's shockingly common.

The sexual abuse of children is something that most people don't like to think about.  Americans for the most part don't understand or want to understand how prevalent it really is. When a shocking story like the Sandusky Penn State case hits the media, people are aghast. Most people assume that convicted child rapists like Sandusky go to prison forever. Sadly that is not the case. Nationally the average sentence of child sex abusers is seven years.

In the Rojona-Nieto case, Rojona-Nieto cornered his 3 year old cousin in a garage and raped her. When her mother came looking for her, Rojona-Nieto covered the child's mouth to stifle her screams. It was only after the child complained of pain that her mother started asking questions that led  to the arrest and conviction.

Judges like Kelly are hardly rare. In the counties where I work, we've had similar issues with minimal sentences for child sex abusers, depending on the whim of the judge. Some judges do understand the seriousness of the conviction, other's adhere to the "the child must have done something" or in the case of teen victims the child was "as much in control of the situation" as the rapist.

A number of years ago I worked a case in which the perpetrator was convicted of sexual penetration of 4 children under the age of 4. In Illinois that is a class X felony punishable by a sentence of 6-30 years on each count. He was sentenced to a total of 40 years of a possible 120. Part of the rationale was that his offense was oral penetration, not vaginal or anal.

In another case, the judge convicted the man on fondling charges to 4 years in prison but found the man not guilty of sexual penetration because the girl said the man put his penis in her 'butt' but did not say that it hurt. This despite the legal definition being 'any contact however slight' so literally touching a child's anus or vagina with the penis is sexual penetration in Illinois.

In yet another case a judge found a man not guilty of raping a teen aged boy because the boy was chubby and the man's penis "couldn't possibly penetrated the boy in the way the boy described". These are just three cases that I'm personally aware of. There are dozens and dozens more and that's just in 3 relatively small counties.

Part of the problem is lack of understanding by judges.  As mentioned above people don't like to think about this subject.  There has been improvement in sentencing and in the understanding of victim's credibility in recent years due to a concerted effort to educate the judiciary, but there is still a long way to go.

Judges need to be educated not only about the suffering of victims, they need to understand that the intent of the perpetrator doesn't matter. Remorse doesn't matter. The involvement of alcohol and substances doesn't matter. All that matters is that they sexually assaulted a child.

Judges also need better understanding of recidivism of child sexual abusers. Studies vary but anywhere from 15-40 percent reoffend and are caught.   That number is conservative because child sex abusers who are released from prison are much savvier in their approach and often don't get caught.

Judges like Judge M. Marc Kelly are commonplace.  Judge Kelly stated that the perpetrator did not intend to harm the child and was remorseful.  I'd ask what part of forcible rape isn't harmful? As to remorse, every child rapist I've helped put in prison is remorseful. Remorseful that they got caught.