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A child's consent to a sex act cannot be used as an adult's defense but can be used to push for a lighter sentence.
By CARY DAVIS, Times Staff Writer
© St. Petersburg Times, published May 12, 2002
Last May, a 15-year-old girl at a Pasco County high school went into a break room with her social studies teacher and gave him oral sex. The teacher said the girl was a willing participant.
The law doesn't care.
Because children must be protected, no minor can legally consent to sex with an adult. The teacher at Pasco's Wesley Chapel High was charged with a felony. He knew he could not argue that the sex was consensual. He pleaded guilty and faced nine to 30 years in prison.
But his defense attorney pointed the judge's attention to a recent decision by the Florida Supreme Court. It said that consent could be a factor in sentencing an adult charged with having sex with a minor.
Florida Attorney General Bob Butterworth had told the Supreme Court such a ruling would weaken laws designed to protect children. And a dissenting justice wrote, "It seems ironic that consent is not a defense to the crime . . . but can be used to negate the punishment for the offense."
The Supreme Court said those concerns "should be directed to the Legislature." If that was a hint, lawmakers either didn't get the message or chose to ignore it. The issue never came up during this year's legislative session.
As for the Pasco teacher? Relying on the Supreme Court decision, the judge gave him probation and house arrest.
Trial judges cited the same Supreme Court decision in two other cases, both in Pasco County.
In one, a 36-year-old Zephyrhills woman faced eight years in prison for having sex with two boys, 13 and 14. She got house arrest and probation.
In the other, a 23-year-old Hudson man faced more than a decade behind bars for a sexual encounter with two girls. He got probation.
Both owe a debt to Ronald Rife.
In 1997, Rife was convicted in Brevard County for having sex with a 17-year-old girl who moved in with him because she had no place else to live. According to trial testimony, Rife, then 49, and the girl planned to marry when she turned 18.
State sentencing guidelines called for a prison term ranging from 24 to 41 years. The trial judge, noting the victim's obvious consent, sentenced Rife to 8 1/2 years in prison. Prosecutors appealed. Based on previous appellate court decisions, they appeared to have a good case.
The Supreme Court found that two laws had a bearing on the case -- two contradictory laws.
One says it is a crime for an adult to have sex with a minor. Whether the minor consents makes no difference.
The other allows judges to depart from sentencing guidelines if the victim was "an initiator, willing participant, aggressor or provoker of the incident." That law makes no exception for sex crimes involving minor victims. The court found that significant.
"If the Legislature had intended to prohibit (lesser sentences) if the minor consented to the activity," the court found, "it could have expressly provided for such a prohibition."
That left the law, as it pertained to Rife, ambiguous, the justices said. And because laws must be interpreted in a light most favorable to the accused, the court ruled for Rife and upheld his sentence.
Jack Levine, a leading child advocate in Florida, said the ruling sends a dangerous signal in an era marked by the "inappropriate acceleration of the idea of young people as sexual objects."
"In an environment where risk is so high, we have to have a higher level of protection," said Levine, president of the Center for Florida's Children. "(The Rife decision) gives adults the freedom to exploit children. It's all wrong."
State Rep. Mike Fasano, R-New Port Richey, promised to make things right.
"There's no question that we're going to have to go back and change the law," Fasano said, "because there are judges out there who just won't be harsh to these sex offenders."
Last month, citing the Rife case, the 2nd District Court of Appeal gave Peters the go-ahead to follow through on his promise
It's not clear how many sex offenders have had sentences reduced because of the Rife decision. A spot check by the St. Petersburg Times of other counties, including Hillsborough, Hernando and Citrus, found no other cases where judges had cited the case in giving sex offenders lenient sentences.
"I think (the Rife decision) is a step in the right direction," said Pasco Circuit Judge Maynard Swanson. "Anything that gives judges more discretion, I'm in favor of."
Swanson is the judge who heard the case of James Hymiller, the 28-year-old teacher at Wesley Chapel High in Pasco County.
Hymiller's attorney, Randall Grantham, argued that the 15-year-old victim was sexually suggestive. The girl had engaged Hymiller in conversations about sex at school, Grantham said. Hymiller told the girl that if she led him into the break room, he would follow.
The prosecutor demanded at least nine years in prison, the low end of the guidelines.
Swanson said he would not be bullied by public sentiment. The girl was a "willing participant," the judge said. In January, Swanson gave Hymiller nine years of probation, the first two of which must be served on house arrest. The judge also ordered Hymiller to surrender his teaching license.
Grantham said the sentence was appropriate. "(Hymiller) will never teach again. For the rest of his life, he'll have to register as a sex offender. It's not easy for him."
The sentence shocked Pinellas-Pasco State Attorney Bernie McCabe. The Supreme Court, he said, intended for the Rife decision to be used only in cases where there was an ongoing relationship, not for a one-time event between a teacher and a student half his age.
For its part, the Supreme Court had urged judges to use caution in applying the Rife decision.
Trial judges, the court said, should carefully consider the age of the victim and circumstances of the case in deciding whether a minor had given consent. "The younger and less mature the victim," the court said, the less sympathetic judges should be when sentencing sex offenders.
McCabe said he should have appealed Swanson's sentence in the Hymiller case. He didn't, he said, because his staff in Dade City "did not get me the information on the case" before the 30-day window to appeal closed.
Two months later, McCabe got another chance.
Jason Case faced at least 11 years in prison for his crimes.
He was supposed to be watching two girls, 12 and 14, at a mobile home in Hudson. Case, now 24, was 23 at the time. The incident began, the 12-year-old said, when Case unzipped his pants. The 12-year-old testified that she touched Case in a sexual manner.
The 14-year-old girl said she performed oral sex on Case. She didn't want to, she testified, but Case didn't force her, either.
Pasco Circuit Judge W. Lowell Bray ruled that the girls were "willing participants" in the acts because they were not coerced by Case. Over a prosecutor's objections, Bray sentenced Case to 15 years of probation.
McCabe appealed, arguing that Bray misapplied the Rife decision in sentencing Case. The appeal could force the Supreme Court to clarify its position.
Swanson and Bray declined to specifically discuss their sentencing decisions with a Times reporter. Fasano pointed to the Pasco cases as proof that some judges will abuse the discretion made possible by the Rife decision.
"These sentences are outrageous," Fasano said. "These girls cannot give consent. They're not old enough to understand the situation."
Most judges, he said, "would have thrown the book at these people. But you're going to have one or two judges who have their own ideas about what should be done in these cases. . . .
"If we have to pass more laws to make sure this doesn't happen anymore, we will."