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Senator targets lenient sentences

A proposed bill would take away a judge's discretion when sentencing adults who have consensual sex with minors.

By CARY DAVIS, Times Staff Writer
© St. Petersburg Times
published March 16, 2003

A Wesley Chapel High teacher who received oral sex from a student at school faced a minimum sentence of nine years in prison. Instead, he got house arrest and probation based on a 2001 ruling by the Florida Supreme Court that allows lenient sentences when a minor consents to a sex act with an adult.

That ruling might seem contradictory, given that minors cannot legally consent to sex acts with adults. The high court acknowledged the contradiction but deferred to a state law that allows trial judges to depart from sentencing guidelines if the victim was a willing participant in the crime.

The law makes no exception for sex crimes involving underage victims.

That soon could change.

State Sen. Anna Cowin has filed a bill that would do away with lenient sentences for adults who have consensual sex with minors.

"It's the right thing to do," said Cowin, R-Leesburg. "We need to close this loophole. It's ruining kids' lives."

Cowin's bill, co-sponsored by Sen. Mike Fasano, R-New Port Richey, would prohibit trial judges, in most cases, from departing downward from sentencing guidelines on the basis of a minor's consent to a sex act.

The bill has yet to make it out of the Senate Criminal Justice Committee, as members are haggling over the issue of age difference between perpetrator and victim, Cowin said. Several senators maintain that judges still should have discretion in cases where the perpetrator and victim are close in age.

Still to be determined is where to draw the line on the issue of age difference. Cowin said her next draft of the bill would allow for lenient sentences if there is an age difference of five years or fewer between the perpetrator and the victim.

"We're not into going after the Romeo and Juliet kids," Cowin said, explaining that the state has no interest in filling prisons with every 18-year-old boy who has consensual sex with a 15-year-old girlfriend.

The intent of the new legislation, Fasano said, is to ensure tough sentencing for sex offenders 20 and older who prey on children.

"When you have a young lady, and she's just 15 years old, she should not be taken advantage of by a man in his 20s, 30s, even 40s," Fasano said. "We must put the responsibility on the man."

Fasano said he decided to co-sponsor the bill in part because of his anger over the sentence handed down to James Hymiller, the former Wesley Chapel High teacher.

Hymiller received oral sex from a 15-year-old girl in a break room on the last day of school in June 2001. Hymiller, who was 28 at the time, said the girl was a "willing participant."

But because that is not a defense to the crime, Hymiller pleaded guilty to having unlawful sexual contact with a minor and faced between nine and 30 years in prison.

Circuit Judge Maynard Swanson, who has since retired, sentenced Hymiller to nine years of probation, the first two of which had to be served on house arrest. The judge also ordered Hymiller to surrender his teaching license.

Swanson derived his authority from what's known as the Rife case, the 2001 Florida Supreme Court decision that says judges can consider consent as a mitigating factor when sentencing adults convicted of having sex with a minor.

Hymiller's attorney, Randall Grantham, said the new legislation under consideration would undermine the principle of judicial discretion. The victim's participation, he said, "has to be taken into account in these cases."

"That's why we have judges," Grantham said. "They are supposed to judge each case on the merits. To tie their hands is just ridiculous."

Hymiller, he said, is a perfect example of why judges should have discretion in these cases. Hymiller made a bad decision by succumbing to a one-time impulse, Grantham said. But Hymiller took responsibility for his mistake and has been a model probationer, Grantham said, completing sex offender counseling ahead of schedule.

In January, a judge ruled that Hymiller could forgo his last year of house arrest and serve that time instead on a less restrictive form of probation.

At least two other Pasco sex offenders have benefitted from the high court's decision in the Rife case.

In one case, a 36-year-old Zephyrhills woman faced at least eight years in prison for having sex with two boys, 13 and 14. She got house arrest and probation. A 23-year-old Hudson man faced more than a decade behind bars for a sexual encounter with two young girls, 12 and 14. A judge gave him 15 years of probation.

Fasano said these sentences send the wrong message to society. The only solution, he said, is to change the law.

"We don't want judges to be lenient on these individuals," Fasano said. "Judges need to be forced to hand down tough sentences."

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