Washington Legislature Turns Screw Again

Continuing to ratchet up penalties for sex offenses, the Washington Legislature has set a 25-year mandatory minimum sentence for persons convicted of certain sex offenses.

The complex enactment, House Bill 3277, calls for prosecutors to allege and prove special facts in order to apply the 25-year minimum. The Final Bill Report summarizes the law and some of the Legislature’s previous increases in sex offense sentences.

The 25-year minimum applies to many child sex offenses in which the offender works with young people—as, for example, a teacher, coach, or pastor—and supervised the victim.

As the Legislature was increasing penalties for sex offenses, a study it commissioned found fewer of them occurring in Washington. Some observers theorize that ’round-the-clock television news programming influences legislatures more than their own studies do. Saturation news coverage of a few horrific sex crimes may have misled the public to believe that sex offenses are increasing and to demand longer sentences. The father of a child murdered in Florida by a previously convicted sex offender testified to the Washington Legislature as it considered the 25-year mandatory minimum sentence.

Rarely considered when legislators debate increasing penalties for child sex offenses is how those penalties will affect the falsely accused.

In this author’s opinion, child sex prosecutions are more likely than most prosecutions to convict innocent people. In most child sex cases, there is only one witness to the alleged crime, and that is a person whose youth makes her or him particularly suggestible. In most child sex cases, there is no physical evidence to corroborate—or refute—the complaining child’s testimony. And evidence of the defendant’s good character, even when it is admissible, may not prevent erroneous conviction, because sexual deviance is often found in persons of otherwise upright behavior.

For the falsely accused person who goes to trial and loses, the damage done by a 25-year minimum sentence is obvious. But that’s not the only effect harsh sentencing rules can have on the falsely accused; they can induce guilty pleas to reduced charges, to avoid the risk of trial.

No one can foretell the outcome of a trial—especially a trial focused on the statements of a child. When conviction at trial would be catastrophic, most defendants consider compromising to ensure that they do not suffer conviction. The more catastrophic the conviction, the more tempting to compromise. The prospect of at least 25 years in prison will tempt mightily.

This is not just theory. It has happened in some of the most notorious miscarriages of justice in recent decades. In the Wenatchee, Washington “child sex abuse ring” prosecutions and the Little Rascals Day Care case in Edenton, North Carolina, defendants facing decades in prison pled guilty to reduced charges.

Washington’s new law adds a new duty for defense lawyers: trying to persuade the prosecutor not to file the special allegation that the case qualifies for the 25-year minimum. This job is best done before the prosecutor formally makes the allegation, since the law provides that, once it has been made, the prosecutor may withdraw it only with court approval.