Does a young man — who otherwise has no criminal record — deserve to go to jail for trying to have sex with his underage “girlfriend?”
It’s a difficult decision, says Judge Shauna Hewitt Michta — on the one hand there’s no doubt that time in custody is called for.
“The issue is, does he get to serve it in the community?” Hewitt-Michta said.
Sentencing of the offender was to happen on Thursday, but the judge delayed her ruling due to the unusual nature of the case.
It’s illegal to name the man because it may identify the young victim.
In May, he pleaded guilty to two counts of attempted sexual assault for two separate incidents with the same girl.
In each case there was physical contact of a sexual nature but the Crown couldn’t prove sexual intercourse. As a result, the man pleaded guilty to two counts of attempted sexual assault.
The girl was 12 years old in December 2010 when she and the 19-year-old offender had started to “date.”
The first incident happened in July or August of 2011 when the offender and the girl, then 13 years old, tried to have intercourse at the girl’s home.
The girl’s mom had allowed the man to move into the home so she could keep a close eye on the couple, but the offender and girl made an attempt at intercourse while she was at the grocery store. The incident was discovered and reported to police, but on Jan. 20, patrolling Mounties found the man and girl in the back seat of a parked truck engaged in “vertical movement.”
The man was under an order at the time which forbade him from having contact with the girl. He has since pleaded guilty to that breach of his release order.
This isn’t a case where the offender was trying to force sex, but at 13 years old, the girl is too young to legally consent to sex. She would have had to have been at least 16 years old.
Hewitt-Michta noted that there’s no question that the offender will receive a custody sentence — the question is whether he’ll be allowed to serve his time on house arrest, or in a real jail.
Crown attorney Marycia Sieklicki said that, if the matters had gone to trial, she would have had to call on the victim to testify, which the girl is reluctant to do.
That’s part of the reason why she secured a conviction by accepting guilty pleas to two counts of attempted sexual assault, instead of sexual interference which was one of the charges the accused originally faced.
Sieklicki asked for a total sentence of 18 months to two years custody for both sexual encounters. She didn’t take any position with defence lawyer Bob Harrison’s request for a conditional sentence.
But Hewitt-Michta had a concern about the Crown’s approach. Sexual interference carries a mandatory minimum term in a real jail (in this case, 14 days) and no conditional sentence would be available.
Yet in this case, by accepting pleas to attempted sexual assault instead, the Crown had opened the door to a conditional sentence and house arrest.
Sieklicki told court that the Crown doesn’t have a policy when it comes to deciding whether to pursue sexual interference charges versus sexual assault charges. Except, Crown attorneys aren’t to agree to a conditional sentence, which leaves it up to defence lawyers to make a pitch for house arrest.
In asking for a conditional sentence, Harrison noted that his client, now 20 years old, had no previous criminal record and spent 49 days in pre-sentence custody before being released on bail.
He said the young man poses no further risk to the victim, has moved away from the area where it happened, has a supportive family and a good work record, is remorseful and is a medium to low risk to reoffend.
“I’d like to say sorry to the victim and her family for putting them through this,” the young man said in court between sobs.
Hewitt-Michta, however, made it clear that she considers this a case of child sex abuse regardless of the circumstances.
And Parliament, she said, has made its stance clear on sexual contact between adults and children by making jail mandatory for sexual interference, even if this accused has pleaded guilty to attempted sexual assaults instead.
In addition, Hewitt-Michta said appeal courts have consistently imposed jail for cases of child sex abuse.
While she said she has some sympathy for the offender and the unusual circumstances, she questioned whether a conditional sentence would send a strong enough message to deter and denounce the abuse.
Hewitt-Michta decided she needed more time, reserved her decision and set sentencing for Aug. 9.
Republished from the Brandon Sun print edition July 28, 2012