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September 29, 2008

Notable plea deal to avoid mandatory minimum in notable sex case

CNN has this report, headlined "Ex-teacher gets 6 years for sex with boy, 13", that caught my eye in part because of the discussion of how a plea deal was struck to avoid the application of a federal mandatory minimum sentencing term.  Here are excerpts:

A former teacher who fled to Mexico with a 13-year-old student so she could have sex with him was sentenced Monday to six years in federal prison. Kelsey Peterson was sentenced to six years in federal prison for running off to Mexico with a student.

Kelsey Peterson, 26, had pleaded guilty in July to a charge of transporting a minor across state lines to have sex and avoided a similar charge that would have carried a mandatory 10-year minimum sentence. She will be credited for nearly one year she has served and could get another year off for good behavior, said U.S. Attorney Joe Stecher....

She started having sex with the boy when he was 12 years old and a student at the middle school where she taught in the south-central Nebraska town of Lexington.... Peterson was the boy's sixth-grade math teacher at Lexington Middle School during the 2005-06 school year and then started having sex with him in November 2006, according to court documents.

She and the boy disappeared in October, soon after the school district's superintendent confronted Peterson about allegations of an inappropriate relationship with the boy. Peterson was arrested a week later in Mexico after the boy called his family. The boy was an illegal immigrant at the time but has been granted humanitarian parole by the Department of Homeland Security.

Am I wrong to wonder if the plea deal that allowed Peterson to be sentenced to far less than 10 years' imprisonment would have been offered had the defendant been a man and the victim a 12-year-old girl?

September 29, 2008 at 09:06 PM | Permalink


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"Am I wrong to wonder if the plea deal that allowed Peterson to be sentenced to far less than 10 years' imprisonment would have been offered had the defendant been a man and the victim a 12-year-old girl?"


Posted by: Daniel | Sep 29, 2008 9:57:46 PM

Well, I am about as hard-core as they come when it comes to sex offenses and children, but it has to be acknowledged that the dangers of female adult/male juvenile sex are far less than male adult female juvenile. That's a reality. Perhaps that should be irrelevant, perhaps not, but that's a reality.

Posted by: federalist | Sep 29, 2008 10:00:55 PM

Why does it have to be acknowledged that the dangers of female adult/male juvenile sex are far less than male adult female juvenile? Given that women commit the majority of all child abuse and sexual abuse is about 7% of all child abuse, why do you think women are safer? What is the percentage of violent child abuse by women compared to men? You may be right because men are more violent per capita than women are, but on what do you base this premise?

Posted by: | Sep 29, 2008 11:38:17 PM

Federalist. No, that is not reality. At least, it's not reality on the planet known as Earth in the county known as USA, using the language known as English. It may be reality in whatever part of crazy you happen to live in, however. I don't live in that fantasy world so it's not appropriate for me to comment on conditions there; you would know better than I.

Posted by: Daniel | Sep 30, 2008 12:24:03 AM

How often do you hear of adult females killing boys with whom they have sex? How often is it the other way around?

Posted by: federalist | Sep 30, 2008 2:17:22 AM

Wow, what a weak comments thread.

Prof. Berman's right to wonder the deal would have been offered to a man. I suspect it wouldn't. Society seems to react differently to sex between adults and children when the adult is a man than when the adult is a woman. I'm not sure why that is or whether it's justified, but the phenomenon is out there.

federalist may be right that men are more likely to be violent than women, but that seems to me to be beside the point when there's no allegation of violence here. Also, repeating "that's a reality" doesn't make something so.

The anonymous poster at 11:38 seems off the mark as well, and I have no idea where those statistics come from. Women are the primary caretakers of children much more often than men, so it stands to reason that they'd commit the majority of abuse. Men, however, are the vast majority of rapists.

Daniel needs to switch to decaf.

Perhaps this all just proves S. Cotus's point about lawyers and non-lawyers.

Posted by: | Sep 30, 2008 9:39:40 AM

To determine whether man/girl sex is different than woman/boy sex, it's important to understand the harm done to the girl or boy. My instinct (could be absolutely mistaken) is that Federalist has a point that the harm is much greater for the girl than it would be for the boy and so therefore that would justify treating men and women offenders differently.

Posted by: John | Sep 30, 2008 10:23:27 AM

Maybe I do need to switch to decaf. It's a pet peeve of mine when people say "that's reality" because nine times out of ten they simply mean "my prejudices". They haven't bothered to look at the facts, or the law; they simply pound the table. I can pound the table too. Is that weak. Maybe so, but it seems that sometimes throwing back silliness into other people's faces is the only thing they understand. If they were interested in a logical and reasonable discussion they would have started off that way. There is zero fact and zero logic in "federalist" post. Just a statement of prejudice.

John: Your instinct is mistaken. There is a cultural bias that says that men want sex and women don't. Doug is correct to wonder if this court sentence reflects that. But not only is this factually untrue, it's besides the point. Rape of any type is not about sex, it's about power. And when a child is forced to do something that they cannot comprehend or willfully engage in it makes no difference what the sex of the child is.

Having said that, I readily concede that it is possible that in this particular case there may have been more willfulness on the boy's part than there is in typical cases. But one should not confuse units of analysis. It is one thing to say that this sentence is correct because of the fact pattern of this specific case involving this specific individual. It is another thing to make a sweeping generalization and say that all boys are less harmed by child abuse than girls are. There is nothing in the law or in human psychology that supports that generalization.

Posted by: Daniel | Sep 30, 2008 11:18:54 AM

While the double standard with regard to females and males is undoubtably based on gender based stereotypes and thus should be impermissible under the Fourteenth Amendment, I'm not sure if this is the right case to illustrate the example, Professor Berman.

Reading the article, it seems that the prosecution may have had legitimate reasons to reach the plea agreement due to the fact that the defense was going to put the exact age of the boy at issue which may have met that the prosecution would not have been able to prove the exact age of the boy depending upon the quality of the vital records in his home country and the ability to produce accurate records for someone brought into the US as a child. However, even if the boy was really 16 as the defense claimed, the simple fact that the defendant thought that it was appropriate to sleep with one of her Sixth Grade students (actually it seems he was a former student - but he still would have been in Seventh Grade) shows predatory behavior - so a prison sentence was appropriate and the fact that the prosecution may have been able to get a longer one doesn't mean that 6 years isn't a serious punishment. This isn't a slap on the wrist.

I agree with you Professor Berman that it is wrong that people use gender based stereotypes (such as those displayed by federalist) to minimize the harm that predatory behavior by women poses to young boys - however, 6 years doesn't seem like an unfair sentence in this case given the potential proof problems that the prosecution doesn't work. There are much better cases available - I remember a pair of cases in Maryland about 7 years ago - two teachers convicted of having sex with students (think that both students were the same age). One was male - given 27 years in prison. Other was female - given 1 year. That is a much better illustration of the result of the stereotypical view that people like federalist hold (which actually likely reflects the majority view of the general public - but just because the majority believes it, it is still a wrongheaded view and violates the Fourteenth Amendment too both). Right point - might be wrong case. But even if it was the right case, I won't fault the prosecution for sending this woman to prison for only 6 years - and I wouldn't fault them for sending a male teacher to prison for "only" 6 years in a similar case (I would fault them if in a similar case, they send a male teacher to prison for 10+ years).

Posted by: Zack | Sep 30, 2008 11:35:19 AM

federalist says that there's a real difference man-girl sex and woman-boy sex and that that difference should matter when assessing criminal penalties; Daniel and Zack say no, that's just bias. No one's offered much basis for either assertion--everyone just seems to *know* that he/she/it's correct.

It's an interesting question. If anyone has a clue about the answer and isn't put off by the comments thread so far, I'd appreciate the input.

Posted by: | Sep 30, 2008 11:46:03 AM

"John: Your instinct is mistaken. There is a cultural bias that says that men want sex and women don't."

My point was a bit more nuanced. I never denied that the 13 year old boy is harmed. I only question whether the harm to the boy equals the harm to the girl in a similar circumstance. On what basis do you say that a 13 year old boy is harmed in the same way that a 13 year old girl is harmed. And the cultural biases that exist impact on whether the boy experiences harm in the same way that a girl would experience harm.

Posted by: John | Sep 30, 2008 11:58:12 AM


'nuff said.

Posted by: Alan O | Sep 30, 2008 5:33:29 PM

Not to get too politically incorrect, by why has no one thought to compare the woman/boy situation to the man/boy situation, rather than the man/girl situation?

Posted by: Matt | Sep 30, 2008 10:30:21 PM

"On what basis do you say that a 13 year old boy is harmed in the same way that a 13 year old girl is harmed."

A couple of points here.

(1) I am not saying that boys and girls are harmed in the same "way". The law isn't about the way that a person is harmed; sexual abuse is about the harm itself. Clearly, as an anatomical matter, there are certain ways for females to be abused that are impossible for boys. But the method of abuse is not what is being outlawed, it is the abuse itself. The underlying assumption in views like "federalist" is that because there are differences in anatomy there must be differences in psychological experiences of pain.

(2) There is a well known book that advocates the "federalist" viewpoint that is actually derived from feminist theory: "In a Different Voice: Psychological Theory and Women's Development" by Carol Gilligan.

(3) In this sense, feminist theory merely replays the philosophical discussion at the heart of most race debates. Should "minorities" (however defined)work for a cultural/legal status that is "separate but equal" or should they work for "equality before the law". People like Gillian argue that women are just so biologically different (and hence psychologically different) that equality as a practical matter is impossible. In fact, Gillian argues that treating women "equally" is actually just another form of abuse, given women's inherent differences.

(4) Opposed this viewpoint are just about every mainstream feminist one can think of, from Elizabeth Cady Staton to Betty Friedan and Gloria Steinem. Major psychologists such as Carl Jung and Alfred Adler also are in this camp (even if neither of their works was specifically feminist orientated.)

(5) To answer the 11:36 am poster I don't know of any study where the researchers actually sexually abused boys and girls and then measured their reactions. I doubt that such a study would ever be done. Baring such a study, one is left with theory and philosophy.

(6) Whatever the merits of this debate, from Brown V. Board of education to the Civil Right Act of 1967, the law itself has rejected the "federalist position". There is nothing in "equality before the law" that allows for discrimination based upon sex or adopts a seperate but equal viewpoint. Indeed, our legal system has specifcally rejected both these theories.

Posted by: Daniel | Sep 30, 2008 11:56:33 PM

When I was in high school a first year female teacher (right out of college at about age 22) "dated" and had sex with a 17 year old male student, who was of the age of consent in that state at that time. All anyone said was that "Randy got lucky". I fail to see that he was harmed by this heterosexual consenting relationship and fail to see that he would have been harmed had he been one day or one month shy of age 17.

The sentence to prison for 6 years is outrageous. Maybe there were ulteriour motives for taking the guy back home to Mexico--perhaps to visit relatives. What would the so-called "victim" have to say to the jury in court? He would likely jump into her arms when he saw her in the dock. A jury would have been likely to acquit this defendant.

Posted by: mpb | Oct 1, 2008 6:46:15 AM

Alan O - while boys cannot get pregnant, they can get someone else pregnant and 18 years of paying child support under the potential penalty of going to jail or even prison is a pretty tough burden as well.

Otherwise - both boys and girls can get veneral diseases. Both boys and girls can have emotional damage from relationships. Boys may perhaps be even more vulernable to long term effects due to being on average more immature than girls of the same age and even less likely to seek therapy or treatment for emotional damage. Also keep in mind that while girls with emotional damage tend to turn against themselves, boys with emotional damage tend to turn against others.

Then you add in that most of the supposed damage to girls is based on antiquated notions of women and girls as property of men (first their fathers and then their husbands). Yes, its true that society still views women and men with a double standard when it comes to sex - but the Fourteenth Amendment and modern laws prohibit that from coming into consideration.

And the person who thinks that this teacher would have been given a walk by a jury - don't count on it - she was a 27 year old Sixth Grade teacher sleeping with a student. A jury is not going to give a pass on that.

But as I said above, I thought this was a fair plea bargain.

Posted by: Zack | Oct 1, 2008 11:27:02 AM

Zack. You are missing the point. The issue isn't whether male kids can be physically harmed. The claim is the old slaveholder line "they don't feel it like we do." Indeed, some go so far as to say it's not abuse at all. Again, this is an old slaveholder argument that the "darkies" actually like the being slaves.

All the arguments that are being presented here are the same arguments that were made over race, now just moved into sex discussions.

Posted by: Daniel | Oct 1, 2008 2:45:47 PM


Describes a recent case where the victim was a 14 year old boy and the adult was female. Sentence for rape: probation. Does not have to register as a sex offender.

Posted by: Daniel | Oct 1, 2008 9:06:14 PM

"How often do you hear of adult females killing boys with whom they have sex? How often is it the other way around?"

If gender wasn't an issue when comparing punishments for the abuser I would agree that the point you are trying to make has merit. But the facts prove that men have ten times more to loose for committing sexual abuse then women do. The act of killing the victim seems to always be an act of desperation to not be caught. If women are 10 times more likely to be given a slap on the wrist there would be no reason to need to escalate to murder.

Posted by: Mark | Dec 17, 2008 3:10:05 AM

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