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Jessica's Law: What does it Mean for Sex Predators?

In retrospect, it was too perfect.

The family first met the man at the public pool. He was friendly, striking up conversation. He seemed to be at the pool whenever the family was there. By coincidence, he was a religious man. He had written religious poetry, which he brought to the pool and shared with the family. He could quote Bible verses almost as well as the parents could. He "spoke their language." He was nice to the parents' four children, who ranged in age from a baby to a teenage boy, with two beautiful blonde girls in the middle. The parents told him about their life: mom home schooled all four kids, plus kept up the townhouse (barely) while dad worked long hours as a laborer.

Then one day, the man showed up at their doorstep. He was desperate. He had been evicted, and was living in his car. He needed a place to stay. Would they prayerfully consider letting him stay with them for a while? He could help out. What would Jesus do? The couple prayed over it.

Soon, the parents had a boarder. A week turned into two, which turned into a month. But...he was awfully handy. He understood. He saw how hard mom worked, raising and teaching those kids, so he helped out. He cleaned house, cooked, bought food.

Oh, and helped take care of the kids. Especially the girls. The teenage boy did not have much to do with him -did not like him, in fact- but the girls, aged eight and four, that was different. They seemed to like him. He was a great helper. He read to the girls. He took them downstairs to watch videos. He took them to the park. He gave a stressed-out mom a break. And what a relief it was.

He even told the parents about his criminal past, about how he had been to prison for an "incident" involving an 18-year-old girl, a huge misunderstanding, and how Christ had saved his life. He said he had repented. To mom, he was the living embodiment of all the things that her religious beliefs taught her. And he was so helpful.

Eventually, he moved out. Dad was a little upset at how long he had lived there. But he still came by. He knew that mom needed help, needed a break. Her husband worked such long hours. So he continued to help around the house, especially with the girls.

One spring afternoon, a neighbor was sunbathing when some activity near the townhome-complex swing set caught her eye. It was a man. A very obese, pale man, with a girl on his lap. The girl appeared to be touching, no, playing with the man's bare chest. He took a dollar bill and put it deep in his pocket. The girl retrieved it. He did it again. The neighbor stared. The man looked at her, and stopped. He put the girl down and walked away, leaving her and her toddler brother alone in the park. The neighbor spoke to the parents, who spoke to the children.

The two girls told their parents what had been happening. The girls ultimately disclosed to authorities that they had been touched inappropriately by the man's hand and mouth. He did it while he was taking care of them, reading to them and watching videos with them. The two girls told a jury about this, also.

The man was actually a convicted sex offender who had served time in prison for touching a little girl. He had a conviction from the 1980s for attempted indecent liberties with a child. An investigation revealed that he had a decade-long track record of molesting girls. Most of the activity had never been reported to authorities. He was the "textbook" predator: a man who attached himself to a family, and knew what to say to get them to invite him into their lives. He groomed the girls, and had his way with them.

The man, whose case is now on appeal, was convicted in Johnson County District Court of two counts of severity level three aggravated indecent liberties with a child, and one count of severity level two aggravated criminal sodomy. He was sentenced consecutively, as a criminal history category "D," to 322 months. Almost 27 years.

This man most certainly fits the definition of the term "sexual predator" as envisioned by the legislature: convicted of a sexually-based offense, and likely suffering from a disorder or abnormality, which makes him likely to engage in repeat acts of sexual violence. If, at age 56, he is able to serve out his sentence, he may be evaluated for civil commitment under whatever statute and program exists in 2026 (his earliest release date).

This case illustrates the damage a repeat sex offender can do to a family and a community at large. This is why our legislature recently passed a series of amendments to the Kansas Statutes Annotated, which significantly increase the penalties for both first-time and repeat child sex offenders.

"Jessica's Law," House Bill 2576, created new crimes and increased the penalties for existing crimes.

What would this child molester's sentence look like if his crimes had been committed today?

As noted above, the defendant was charged with, and convicted of, three offenses involving children well under the age of 14, the triggering age for the most severe penalties in the new child sex-offender scheme. The defendant was 56, well above the minimum age of 18 for imposition of the most severe penalties. The defendant had a prior conviction, pre-guidelines, for attempted indecent liberties, with a 9-year-old victim.

Today, he would be charged with aggravated criminal sodomy, K.S.A. 21-3506(a)(1), with an allegation that the offender is age 18 or older, an off-grid felony.

Additionally, he would be charged with two counts of aggravated indecent liberties with a child, K.S.A 21-3504(a)(3)(A), with an allegation that the offender is age 18 or older, an off-grid felony.

He would likely have to be sentenced as a first offender, however.

House Bill 2576, "Jessica's Law," has two subsections that deal with recidivist offenders. New Section 1 deals with the worst of the worst, those offenders who have two or more prior convictions for "any sexually violent crime." These crimes are enumerated in subsection (c) and include "(B): indecent liberties with a child, K.S.A. 21-3503, and amendments thereto." A person sentenced under Section I is an "aggravated habitual sex offender" and "shall be sentenced to imprisonment for life without the possibility of parole."

The man whose story is told above does not fall under this section because, although he has molested numerous children in the past, he has but one prior conviction.

HB2576, New Section 2, subsection (b)(1) deals with offenders who are 18 years of age or older and have a prior conviction:

On and after July 1, 2006, if a defendant who is 18 years of age or older is convicted of a crime listed in subsection (a)(1) and such defendant has previously been convicted of a crime listed in subsection (a(1) or a crime under a law of another jurisdiction which is substantially the same as such crime, the court shall sentence the defendant to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 40 years.

The crimes listed in subsection (a)(1) include aggravated criminal sodomy and aggravated indecent liberties with a child. This is what the man discussed above was convicted of. So he gets 40 years, right?

Wrong. The crimes listed in subsection (a)(1) are aggravated trafficking; rape of a child; aggravated indecent liberties with a child; aggravated criminal sodomy of a child; promoting prostitution (child under 14); sexual exploitation of a child (new subsection 5, child under 14); or an attempt, conspiracy or solicitation of any of these crimes.

Indecent liberties with a child is not one of the predicate offenses, which qualify for imposition of a 40-year sentence.

Indecent liberties with a child, K.S.A.21-3503, was changed significantly in 1993 with the passage of the Kansas Sentencing Guidelines Act. Prior to 1993, if you had intercourse with, or sexually touched, a child under the age of 16, you were guilty of indecent liberties with a child. Aggravated indecent liberties with a child, K.S.A. 21-3504, was defined as the act of indecent liberties committed by a guardian, proprietor or employee of a foster home, orphanage or any public or private institution in whose charge a child has been placed by a court or other agency acting under color of law.

Today, the acts you commit and the age of the child determines whether you are guilty of one of the subsections of aggravated, or "just" indecent, liberties with a child.

The second-offender provision of Jessica's law in Kansas does not apply to the pool of offenders, including the subject of this article, who were convicted of touching or having intercourse with young children prior to 1993.

So, what would his sentence be?

HB2576, New Section 2 (a)(1) is the first-time offender provision. It states that an offender over the age of 18 who commits, among other things, aggravated criminal sodomy or aggravated indecent liberties with a child under age 14 serves a minimum sentence of not less than 25 years. The exceptions include a provision, found in subsection (a)(2)(B): "the defendant, because of the defendant's criminal history classification, is subject to presumptive imprisonment pursuant to the sentencing guidelines grid for non-drug crimes and the sentencing range exceeds 300 months. In such cases the defendant is required to serve a mandatory minimum term equal to the sentence established pursuant to the sentencing range."

In this case, the defendant was criminal history category 2-D on the sentencing grid. His range for the primary crime was 181-190-200 months. The judge sentenced him to consecutive terms of 200, 61, and 61 months for a total of 322 months, or 26.8 years. Does this mean that he was 'subject to presumptive imprisonment' for greater than 300 months? Maybe. That will probably be for an appellate court to decide.

If the answer is yes, his sentence today would be the same as it was before Jessica's law. If the answer is no, his sentence would be 25 years, a year and eight months less than what he received.

Jessica's law is silent as to whether the 25-year sentence applies to each count of an information, or whether they can run consecutive to one another.

That is for another article, another day.

Either way, it is clear that both the pre-July 1, 2006 law and Jessica's law contain lengthy prison sentences for defendants who prey on children in Kansas.