Sentencing Laws Could Be Making Judges Reluctant To Send Sex Offenders To Prison
BOULDER, Colo. (CBS4) - After deciding not to send a former University of Colorado student to prison for rape, Boulder District Judge Patrick Butler has become the subject of an online petition demanding his removal from the bench.
More than 21,000 people had signed the petition as of Friday night, though in Colorado, judges are not subject to recall elections. They can be removed through legislative impeachment.
His decision faces criticism from the victim in the case, who called the sentence "light" in a statement released through prosecutors Friday, and from Colorado's Attorney General Cynthia Coffman, who took to Twitter to write "No prison time for sexual assault sends a terrible message. My thoughts are with the victim."
In May, a jury found Austin Wilkerson, 22, guilty in the 2014 rape of a female student following a party. According to court documents, the victim was drunk and half-conscious when she was assaulted by Wilkerson, a Ralphie handler for CU's football program, after celebrating St. Patrick's Day at a party. Prosecutors say Wilkerson told the victim's friends he would take care of her before isolating and assaulting her.
Wilkerson was convicted of two of the counts against him, sexually assaulting a helpless victim, a Class 3 felony, and of unlawful sexual contact, a Class 1 misdemeanor.
CBS4 Legal Analyst Karen Steinhauser says under Colorado's law, in sentencing Wilkerson for his felony conviction, if the judge had chosen to send him to prison he would not have been able to decide when, if ever, Wilkerson would be released.
"If somebody is convicted of a Class 3 felony sex offense like this, and the judge were to sentence him to prison, the judge doesn't have any control over how long that sentence could be," Steinhauser said.
She says indeterminate sentencing, adopted in Colorado in 1998, leaves that decision up to a parole board, potentially making judges reluctant to send sex offenders to prison.
"Now, the judge may give a beginning to what the bottom part of that sentence has to be, but has no control over what the top end is," Steinhauser said. "It really does create some issues."
In Wilkerson's case, Judge Butler could have chosen between 4 to 12 years at a minimum in prison, with the possibility that Wilkerson could spend the rest of his life in prison.
"I don't believe every sex offense requires life in prison," she said.
Under his 20-year probation sentence, Wilkerson will be registered as a sex offender and be subject to special conditions imposed by a supervising agency, which can include not being allowed to live or have contact with children under age 18, including siblings, not being allowed near schools, parks, playgrounds, and other places visited by children, and having limited access to electronic and other forms of media. Steinhauser says Wilkerson will be watched closely by a team of supervisors.
"I've had clients who've said to me I'd rather sit in jail than be on this type of sex offense probation," she said, "So, I don't believe this is a lenient sentence, I don't believe it's a slap on the wrist."
For Wilkerson's misdemeanor count, Butler sent him to jail for two years with work release during the day. Steinhauser says that sentence is tougher than what pre-sentencing investigators recommended in the case.
Boulder Deputy District Attorney Caryn Datz, who prosecuted the case along with Deputy District Attorney Lisa Saccomano, argued for prison time for Wilkerson and said she was disappointed in the outcome.
"We feel like this is a very serious felony … and that the community has an expectation that they'll be protected," Datz said.
She thanked the victim for her bravery in coming forward. Advocates for victims of sexual assault say very few cases are ever reported, and even fewer make it to a jury trial.
"Unfortunately, we're still living in a culture that is very passive towards this crime and still, in many respects, blames the victim for the crime occurring in the first place, looking at her behavior, as opposed to the offenders," she said.
Lauren DiSpirito reports for CBS4 News at 10 p.m. She covers breaking news and feature stories along Colorado's Front Range. Follow her on Twitter @CBS4Lauren. Share your story ideas with her here.
