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A Child Victim’s Unspoken Words, A Judge’s Betrayal of Justice

On October 4, 2016, the criminal justice system – in the form of Montana District Judge John C. McKeon – failed a 12-year-old child who had been raped by her father. On that date, the judge rejected the state’s recommendation that the father be incarcerated for 25 years and instead imposed a 60-day sentence (with credit for 17 days’ time served) and participation in a community-based sex offender treatment program. The state’s sentencing recommendation was part of a plea agreement, pursuant to which the father, who originally was charged with three counts of incest, was permitted to plead guilty to one count and the state dropped the other two charges.Not surprisingly, the sentence triggered a firestorm of outrage and an online impeachment petition signed by some 80,000 supporters as of the end of last week. But whether Judge McKeon is impeached (doubtful if for no other reason than that he intends to retire on November 30th) is secondary to the fundamental issue exposed by the legal process that resulted in such a sentence: Our justice system consistently favors child sex abusers over their victims.

A review of the Montana judge’s reasoning provides some insight into how the judicial system routinely works against child sex abuse survivors. In response to the public outcry, Judge McKeon took the unusual step of issuing a public statement defending his sentence. The statement contained in a press release indicated that the judge had relied substantially on a psycho-sexual evaluation’s findings that the perpetrator “would benefit” from a sexual offender treatment program.  

Under Montana law, an adult who commits incest against a victim 12 years of age or younger is subject to a mandatory sentence of 25 years’ imprisonment. The judge circumvented the mandatory minimum requirement under a separate sentencing statute that permits courts to impose a lesser sentence if it determines, based upon a psycho-sexual evaluation report, that sex offender treatment “affords a better opportunity for rehabilitation of the offender and for the ultimate protection of the victim and society . . . .” (Coming under the heading of “better late than never,” a Montana sentencing commission recently recommended that the legislature repeal this exception to the mandatory minimum sentencing law in incest and other sexual assault cases.)

Judge McKeon’s statement made it sound as if the state’s sentencing laws and policies required the sentence he imposed. But that is not true. While the judge cited to Montana’s policy to “encourage and provide opportunities for an offender’s self-improvement, rehabilitation, and reintegration back into the community,” his statement failed to reference other state policies “to provide restoration to the victim” and to “hold the offender accountable for the offender’s actions.” These policies clearly support a sentence of lengthy incarceration in light of the horrific and destructive crimes against the victim committed by the perpetrator.

 Moreover, while the statutory exception to the mandatory minimum sentencing law gave the judge the discretion to depart below the minimum term, nothing in that law required the court to impose such a lenient sentence. In fact, under the exception, the judge could have ordered the perpetrator to undergo sex offender treatment “while incarcerated . . . for the ultimate protection of the victim and society.” In other words, the judge could have sentenced the defendant to a lengthy period of incarceration, even if below the 25-year mandatory minimum, during which he would receive the necessary treatment. Instead, the sentence the judge did impose – a mostly suspended sentence and community-based treatment — violated the applicable law’s mandate to protect the victim and society. Accordingly, Judge McKeon cannot hide behind Montana’s sentencing laws or policies.

The judge’s statement further noted that the prosecution failed to dispute the evaluator’s report and failed to present any evidence of the ongoing nature of the incest, as charged in the two dismissed counts. The statement quoted from letters submitted by the victim’s mother and grandmother, supporting the perpetrator’s release and participation in the community treatment program, and noted that the defendant had the support of the community and his church. Nothing in the statement indicated that the judge had even considered the best interests of the child in imposing sentence on her abuser.

According to reports, nobody spoke on the 12-year-old girl’s behalf at sentencing – not her family members, who chose to support her rapist instead; not the prosecutor, who expressed his dissatisfaction with the sentence after-the fact but failed to contest the report or produce evidence of aggravating circumstances, i.e., the father’s serial rapes of his young daughter — that could have influenced the court’s sentence; and not the victim advocate, even though the prosecutor’s office in that district has a special child advocate to work with child victims of crime. There is no indication that a victim impact statement was even filed with the court. Inexplicably, the judge held the girl’s involuntary silence against her.  

Someone should have told the judge that child victims of incest suffer from severe trauma that results in significant loss of trust in others, confusion about familial relationships, and a unique hurt from having been betrayed by someone who had a fundamental obligation and duty to protect and nurture them. The judge should have known that when a family supports the perpetrator over the incest victim, the child suffers from retraumatization as a result of her family’s rejection. The court should have understood that child sexual abuse survivors experience higher levels of depression, guilt, shame, self-blame, anxiety, suicidality, sexual and relationship problems. But no one came forward to speak for the child. How utterly alone she must have felt. We must all feel ashamed by, and angry at, a judicial system that would treat a child victim of a heinous crime so unfairly and dismissively.

Incredibly, the judge wrote that while the sentence imposed may not be “popular,” it is “just and proper.” No, Judge McKeon, your sentence was grossly unjust and improper. Your decision, like similar systemic decisions that impact negatively on child sexual assault victims who seek to hold their abusers accountable under the law, elevated the interests of the perpetrator and ignored those of the victim. Such decisions cannot be allowed to stand.  

In the face of such an injustice, we cannot remain silent. We must raise our voices and speak on behalf of the children. We must continue to protest loudly until the legal system is reformed into one that honors and respects the rights of child sex abuse survivors. Then and only then will victims like the little girl in Montana find their own voices. Only then, will justice finally prevail.

Neil Jaffee 

Legal Counsel, Vertigo Charitable Foundation, LLC

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