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February 6, 2017

Idaho judge includes celibacy for teen sex offender on intensive probation

As reported in this local article, after "sentencing a 19-year-old Twin Falls man to a year-long therapeutic prison program on a rape charge last week, a judge added an unusual caveat should the teen successfully complete the program and be placed on probation." Specifically:

“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” 5th District Judge Randy Stoker said.

The judge’s unusual proclamation was made during the sentencing of Cody Duane Scott Herrera, who pleaded guilty to the statutory rape of a 14-year-old girl in March 2015. Now, legal scholars are questioning whether the judge could hold Herrara to his warning.

Stoker said the condition would be put in place in part because Herrera told presentence investigators he’s had 34 sexual partners. “I have never seen that level of sexual activity by a 19-year-old,” Stoker said. Prosecutors also revealed Herrera, who could face more sex-related charges involving an underage girl, has had fantasies about a 13-year-old girl and watches pornography depicting rape.

The Idaho Department of Health and Welfare “did not designate Mr. Herrera as a sexual predator,” Stoker said during his sentencing, “though there seems to be an argument that could be made for that.”

The victim’s mother, making a victim-impact statement, certainly believed Herrera was a predator. “It was his intent from the beginning to take what he wanted from my 14-year-old child — her virginity,” the victim’s mother told the court. “And he stayed around until he got it from her. Cody will never understand what he has done to our family. Cody robbed her of her innocence. He destroyed the child left in her. This can never be returned.”

Stoker sentenced Herrera to an underlying prison sentence of five to 15 years, but suspended the sentence in favor of the year-long rider program. If Herrera successfully completes the program, he’ll be released to probation, and, according to Stoker, a life of celibacy unless he weds.

But that probation condition might be illegal or unenforceable, according to Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law. “I would suspect (a judge can’t do that),” Sanders said. “I think it infringes on his constitutional rights.” While judges “have quite a bit of discretion” in creating special probation terms, Sanders said, they can’t violate the federal or state constitution. “I think if he appealed, he would win,” Sanders said.

Twin Falls County Prosecutor Grant Loebs said he did think Stoker would be able to impose the probation condition.  “The judge has the ability to tell people to do or not do all sorts of things that are (otherwise) legal and constitutional,” Loebs said, pointing out that abstaining from alcohol is a condition of most probations.

“A judge’s purpose is to keep them from committing another offense,” Loebs said. “A judge has right to order things to keep him from doing that … I don’t think this goes beyond what a judge is allowed to do.”

I have personally always viewed probationary conditions that prohibit alcohol more than a bit suspect, but I know that they are regularly imposed and have often been upheld when sufficiently linked to the offense of conviction. With that background, I think the prosecutor here has a reasonable basis for arguing that this celibacy condition could be upheld if challenged. Then again, even though sex and alcohol often are linked, some significant distinctions might be made in this context were there to be legal appeals by the defendant here.

February 6, 2017 at 05:36 PM | Permalink


The professor erred when he said a judge "can't"•
I agree that a judge "oughtn't" do •

I have personally observed a judge prostitute the judicial oath of office and rape the Ohio and U.S. Constitutions ‼️

The ▶️ONLY◀️ way to handle that judicial tyranny was ▶️💀DEATH💀◀️‼️
The judicial oath ended with "So help me God."
The judge was dead within ten months ‼️
God can work wonders 👀◀️
And John of Salisbury's tyrannicide option was not necessary , albeit that option is not available to sanction rogue judges in Ohio •

Kindly submitted , DJB aka Kind Soul
Nemo Me 💀 Impune Lacessit 👍‼️

Posted by: Docile Jim Brady | Feb 6, 2017 6:40:13 PM

After Lawrence v. Texas, sex is likely to be seen as more of a stronger "liberty interest" than drinking alcohol though I gather some of the latter tends to include "association" interests like staying away from bars or others who drink.

I'm unsure exactly the need of this requirement. Yes, there are people who have sex with a lot of partners and that is generally legally, though this person might be liable to have sex with those under the age of consent per his age. I can see providing a high requirement there to ensure he is having sex with adults, including id or on record consent statements.

The requirement to stop him from having sex with people in there twenties with no doubt that they are minors is unclear to me and very well might have constitutional issues.

Posted by: Joe | Feb 6, 2017 7:03:31 PM

Unfortunately this is a very common condition in some states and unless individualized, temporary, and supervised by a trained therapist, this rule is contrary to all the research on effective interventions to support desistance from sexual assault. We don't prescribe anorexia to treat bulimia. Sexuality is a human need and learning to develop skills to identify consenting, age-appropriate partners works better than saying "don't have sex." I am a defense attorney who specializes in sexual assault law and treatment.

Posted by: Laurie Rose Kepros | Feb 7, 2017 7:27:34 AM

I can't help but think of the "abstinence only" sex education programs (that are generally a failure) and the "just say no" to drugs campaign, also a failure. Granted, those are different, but, I see some overlap here. (I agree with Laurie Rose Kepros.

And, like Joe wrote, the first thing that came to mind was Lawrence v. Texas. One might also wonder if the judge's order might be construed as a religious requirement -- as many religions prohibit sex outside of marriage (meaning, pre- or non-marital sex), but many (all?) states permit it.

Posted by: ADC Wonk | Feb 7, 2017 11:40:05 AM

How absolutely absurd. No sex unless he's married?
This rip-van-winkle-judge needs to wake up "in the 21st century.

Posted by: kat | Feb 7, 2017 4:43:45 PM

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