PRESENT OFFENSE
Arrest Report
On
February 24, 2003 John Jones from Child Protective Services notified the
Anywhere Police Department of a 16 year old girl’s disclosure to her high
school counselor of incestuous sexual abuse.
On that date, the Anywhere Police and John Jones interviewed the victim
at Anywhere High School. When asked if
she knew why they were there, the victim stated she thought it had to do with
what her father did to her a long time ago.
The victim was asked to explain and she told the officer that her father
became a Jehovah’s Witness, had changed and was not doing anything bad to her
any longer. The victim told the officer
that her father began touching her inappropriately in either the sixth or
seventh grade and stopped when she was in the ninth grade. She estimated that she was ten or eleven
years old when the abuse began and thirteen when it stopped, just when her
menstrual cycle began.
The
victim stated that the first time the abuse happened was in the daytime when
she was at home alone with her father.
She was being punished for something she did not recall and her father
gave her the option of receiving a beating or pulling her pants down. She elected to pull her pants down and her
father threw her on the bed, pulled her underwear down and began fondling and
penetrating her vagina with his fingers for several minutes. He then inserted his penis into her vagina,
“moved it in and out for approximately five minutes” and then removed his penis
and ejaculated outside of her vagina.
The victim told the officer that her father did not say anything during
the assault but did kiss her neck. She
stated that she felt bad and sad during the assault but could not disobey her
father.
The
victim stated that her father continued to have sexual intercourse with her
approximately two times per month for two to three years. During the incidents he threatened to hit
her with his hand, belt or fist, so she did as she was told. He told her not to tell anyone about the
abuse.
The
victim stated that the abuse also included fondling and stated that in five to
ten incidents she recalled waking up in her bed with her father fondling her
breasts. She stated that her younger
sisters were also in the room during these incidents but that she did not think
they were awake or witness to any of the abuse.
The
victim stated that although she was never forced to orally copulate Defendant
Doe, he did ask her to kiss his penis on one occasion and she told him “no, I
am not a prostitute”. She did state
that her father kissed her vagina two times.
The
victim stated that she told her mother about the abuse and her mother followed
Defendant Doe into the victim’s room one night and caught him fondling the
victim’s breasts. Her mother put a lock
on the door but the abuse continued.
She told her mother again and her mother told Defendant Doe to
stop. He did stop for several months
but then resumed the abuse again. The
victim again told her mother who confronted Defendant Doe and again told him to
stop. Following this confrontation, he
did stop permanently.
The
victim stated that after her father converted to Jehovah’s Witness, he
expressed his remorse to her for what he did in the past and promised it would
never happen again. He blamed his
behavior on the fact that his wife, the victim’s mother, was having an affair
and he needed to have sex with someone.
The victim stated that her father often asks for her forgiveness and
they openly discuss the abuse he perpetrated upon her. When asked what she thought should happen to
her father, she hesitated and then stated that she felt he should be
punished. She did assure the officer
that the abuse had stopped and that she was sure her father had never abused
her sisters, now ages fifteen and thirteen.
Originally,
the victim agreed to tape record a conversation with her father regarding the
sexual abuse. However, at a later date,
she refused stating that she would not help the officer, that things were fine
at her home and she did not want to break up the family.
The
police interviewed the victim’s two younger sisters who both denied being the
victim of sexual abuse by the defendant.
They were both aware that their father had sexually abused their sister
by “touching” her and the youngest sister stated that she was warned by the
victim to be careful of their father.
The middle sister stated that she was nervous in the past thinking that
her father may try to touch her inappropriately but the entire family talked
about it. She stated that since her
father converted to Jehovah’s Witness, she feels safe.
The
police interviewed the victim’s mother, Mother Doe, who was hesitant to talk to
them for fear that her husband would go to jail and she would not have anyone
to help with the children. She told the
police that she knows what her husband did was wrong and that the victim is
“damaged” because of what he did. She
stated that it happened several years ago and should be forgotten.
She
told officers that she suspected Defendant Doe of sexually abusing the victim
so she attempted to catch him in the act by coming home from work early or by
leaving for work and then coming back home.
She stated that she witnessed one incident which occurred when the
victim was twelve or thirteen years old.
She stated that she went to bed and left the victim and Defendant Doe
watching television. She came back out
into the television room and saw the victim sitting on Defendant Doe’s lap
while he touched her vagina. Mrs. Doe stated that she yelled at them both and
assumed this took care of the situation.
Mrs.
Doe stated that the victim told her several times throughout the years that
Defendant Doe was touching her vagina and breasts and Mrs. Doe told her not to
let him do this. Mrs. Doe stated that
she also thought this took care of the problem.
Mrs.
Doe stated that she had a final discussion with Defendant Doe about his sexual
abuse of the victim and Defendant Doe admitted to touching the victim’s vagina
and breasts on a couple of occasions but did not mention intercourse. The police informed Mrs. Doe that the
defendant had had intercourse with the victim 2-3 times per month for several
years and Mrs. Doe, at first, did not believe them. She then became tearful and was upset that she had been lied
to. After her final discussion with
Defendant Doe about the abuse, she stated that he converted to Jehovah’s
Witness and she believed that the abuse stopped for good.
Mrs.
Doe admitted having an affair during the time of the abuse and felt guilty that
this may have caused her husband to sexually molest their daughter. She did state that Defendant Doe has
changed, that she loves him very much and that she did not want him to go to
jail and break up the family. The
police informed Mrs. Doe that her first priority should be her children and
asked her what kind of a message it would send to them if Defendant Doe was not
punished. Mrs. Doe “could not
understand this”. She stated that she
knew that the victim is currently acting out and getting into trouble because
of what Defendant Doe did to her but was adamant about keeping the family
together and stated that she cannot raise her children by herself.
The
victim’s high school counselor was interviewed and stated that the victim’s
physical education teacher noticed a change in the victim’s behavior. The teacher asked her about the change and
the victim informed the teacher of the abuse.
The teacher reported the abuse to the counselor. The counselor discussed this with the victim
who informed her that the abuse began in El Salvador when she was nine years
old, lasted for approximately four years and had stopped. The victim expressed concern to the
counselor that the authorities would find out, remove her and her sisters from
the home and break up the family. She
told the counselor that the abuse stopped and she did not think that she or her
sisters were in danger.
Defendant
Doe was interviewed by the police. He
initially admitted to fondling the victim on four to six occasions over a two
year period of time when she was eleven to thirteen years of age. He then clarified the molestation’s occurred
one to two times per month for two years although stated that he stopped in
between for approximately six months.
Defendant Doe placed blame on the victim by stating that one day the
victim began touching his body all over the place, including his penis. He stated that he became excited and
reciprocated by touching her. He
admitted to touching the outside of the victim’s naked vagina and breasts and
stated that she touched his erect penis.
In relation to the multiple encounters, he stated that he ejaculated
after each occurrence without manual or oral stimulation but that he always put
his pants back on before ejaculating.
He stated that these incidents would usually occur in the television
room after the rest of the family went to bed and admitted driving the victim
out to Anywhere park several times where they fondled each other.
Defendant
Doe stated that he stopped sexually abusing his daughter when his wife
confronted him and, after converting to Jehovah’s Witness, realized what he was
doing to his daughter was wrong and has not fondled her since. He also admitted to using his daughter for
sexual pleasure during a time that his wife was having an affair. Defendant Doe was arrested and booked into
jail.
Following
Defendant Doe’s arrest, the victim called the police to find out why her father
was in jail as she did “not put any charges on him”. She was told that he confessed to committing a crime and was
arrested based on this. The victim told
the officer that when she originally reported the molestations, she did not
want her father to go to jail but wanted help for the family.
Attached
to the police report was a memo from the original CPS worker, John Jones. The memo reflected that the victim told Jones
that when she reported the abuse, she did not want her father to go to jail but
wanted help for him and the whole family.
The victim stated that this has “destroyed our family” and she was told
that her father destroyed the family by abusing her. She told Jones that she found out that her father would be in
jail for thirty years and that if he wanted to get out, he would have to pay
$50,000.00.
Defendant’s Statement:
The
defendant stated that he accepts all responsibility for the sexual activity he
engaged in with his daughter. He stated
that the police report did not reflect, accurately, his position on this fact
and felt that the language barrier was the cause of this discrepancy. He stated that it was all his fault because
“as a father I should not have done that”.
He stated that he is responsible for watching out for his children and
seeing that all of their needs are met but instead, he took advantage of his
child. He stated that he touched her
first as opposed to the police report which reflected that he said that his
daughter touched him first. He did not
deny the extent of the abuse as it was reflected in the police report.
He
stated that he has tried, since the molestations, to be a better parent and he
very much wants his family to be healthy again. He is willing to go to individual and family therapy and wants
his entire family to get counseling. He
stated he does not want to damage the family any further then the harm he has
already caused and acknowledges that he has caused the rest of his family
significant trauma.
He
stated that he told his wife about the molestations and her reaction was
drastic. He states that he did not know
that she was having an affair and it has been very hard to keep the family
together throughout all of this. He
stated that this is the reason he has been following all of the suggestions
given to him regarding counseling.
He
stated that his oldest daughter, the victim in this case, has been acting out
and getting into trouble and he knows that these behaviors are directly related
to his abuse of her. He stated that his
involvement in the Jehovah’s Witness is a main factor in his rehabilitation and
feels that he is not at risk of re-offending.
He is hopeful “to live life with peace as it was before” and is thankful
for the help he is receiving.
Victim’s Statement:
The
victim, who was interviewed while in custody in Juvenile Hall, stated “all I
want is to go home and live with my family”.
She stated that “that thing happened four years ago. We have been having good communication and
everything was working out good”. She stated that her father apologizes often
for what he did and when they discuss the situation, he begins to cry. She stated that she is fairly sure that her
father has not sexually abused either of her sisters.
The
victim stated that she initially told her teacher about the abuse because she
was “feeling bad” and wanted to talk to someone. She stated that before she was removed from her family’s home,
she was having fewer problems in the community. She stated that she was always home and not “hanging out in the
streets”. After she was removed from
the home by CPS and initially placed at Anywhere children’s shelter and then
her aunt’s home, she began having more problems including “hanging” out in the
streets and not coming home.
In
regard to what she feels should be the outcome of her father’s criminal case,
she stated that she would feel bad if he were sent to prison. She stated she would feel somewhat
responsible for bringing this to the attention of the authorities and all she
wants is to resume the life she and her family had before her father’s arrest.
Consultant’s Note:
In
a telephone interview with the defendant’s wife, she stated that she does not
want to see her family separated and wants them together again. She stated that the relationship that they
have now is very “nice” and the crimes happened a long time ago. She pointed out that when her daughter, the
victim, reported the crimes, all her daughter wanted was help; she did not want
to have her father in jail.
Mrs.
Doe states that she has asked the other children in the home if they have ever
been abused by Defendant Doe and both said no.
Mrs. Doe stated she and her children have seen a change in the defendant
and, while she feels he should be punished for his crimes, she does not want to
see him incarcerated. She states a
concern for the financial well being of her family and states that they are
struggling now with two incomes and does not know how she could support her
children on her own.
With
regard to what she would do today if one of her children came to her and told
her that they were being victimized, she stated that she “would go to the
police for help”. She stated that she
would do this even if her husband were the perpetrator because “the father is
the one who should protect the children”.
Mrs. Doe stated that they are all going to be participating in therapy
and hopes to have her daughter and husband together and back in the home soon.
PRIOR RECORD
Adult Record:
None.
Probation/Parole Adjustment:
The
defendant does not appear to have ever been subjected to any type of community
supervision.
SOCIAL FACTORS
Family Background:
Defendant
Doe was born February 25, 1964 in San Salvador, El Salvador. He is the oldest of six siblings, having two
younger brothers and three younger sisters.
His parents remained married until his father’s death nine to ten years
ago. With the exception of one sister
who lives in Anywhere, the rest of his family resides in El Salvador. Defendant Doe stated that he had an average
childhood although stated that his father was an abusive alcoholic who abused
the whole family. Defendant Doe stated
that his father thought he, the defendant, never did the right thing, and he
would yell at him and beat him.
Defendant Doe denies being the victim of sexual abuse and denies that
sexual abuse was present in the home.
Education:
The
defendant reported he graduated from high school in El Salvador and reported no
additional education.
Residential:
The
defendant currently resides at 123 Noplace Dr. in Anywhere with his wife and
two youngest daughters. He reports
having lived at this address for the past nine years. Defendant Doe reports immigrating to the United States from El
Salvador in 1990.
Marital:
The
defendant has been legally married to his wife since 1992 although he reports
having been together with her since 1979.
They have three daughters ages thirteen, fifteen and seventeen. He states that his wife initially immigrated
to the United States and then he moved shortly thereafter. Approximately one year later, they sent for
their children.
He
stated that his past behavior has significantly effected his relationship with
his whole family but is optimistic that, through counseling, they will be able
to get through this difficult time and remain together. Following his arrest, the victim in this
case was removed from the home by CPS and has not returned as of the writing of
this report. He realizes that his
behavior is the causal factor in this and would like to have her return to live
in the family home as soon as possible.
He is willing to do whatever is necessary to facilitate this.
Military:
None
reported.
Employment:
Defendant
Doe reports being a self employed “carpenter/handyman”. He states he has worked in this capacity for
the past seven years and acquires business by personal referrals.
Financial:
The
defendant reports earning $1,200.00 per month.
He reports that his wife is employed in the house cleaning industry
earning $1,100.00 per month. Defendant
Doe reports owning a 1986 and a 1996 Dodge.
The defendant reports no liabilities or other assets.
Medical:
The
defendant reports to be in good physical condition with no medical issues.
Drugs/Alcohol:
Defendant
Doe denies ever experimenting with illegal drugs. He reports never having had a problem with alcohol although
states he has drank beer on occasion in the past until he was informed by a
doctor that he had some type of liver problem and was advised not to drink
alcohol. He did not recall what the
liver problem was and has no negative repercussions from this issue. The defendant’s lack of substance use/abuse
was confirmed by his wife.
Clinical:
Following
the defendant’s arrest in March of this year, Child Protective Services removed
the victim from the home and assisted the family with counseling
referrals. The defendant began
counseling through Family Service’s Latino Outreach program on March 29,
2003. He is currently seeing Counselor
Bob every Thursday at 9:00pm. Counselor
Bob stated that he has only met with Defendant Doe on several occasions and was
unable to provide any information regarding a prognosis.
Defendant
Doe’s wife is in counseling with Counselor Mary from Family Services.
Defendant
Doe’s victim daughter has not yet begun counseling. She has had significant difficulty in the community and, although
she did make one phone call to the Child Sexual Abuse Treatment Program in an
attempt to begin counseling, she has yet to start. Counselor Kathy from the treatment program is aware of the
victim’s status in Juvenile Hall and is anticipating seeing her in the near
future to arrange services for this minor.
It
is expected that at some point in the future, the entire family will be engaged
in individual as well as family counseling via Family Services and the Child
Sexual Abuse Treatment Program.
Social
Worker James of the Anywhere County Health and Human Service office has been
working with the family. In relation to
the victim’s situation, he has provided a report to the Juvenile Court pursuant
to W&I 241.1 recommending that her needs best be met via probation services
pursuant to W&I 602. He stated that
he knows that the abuse stopped before the victim was removed from the family
home and that both Defendant Doe and his wife want to stay together as a
family. He also stated that Defendant
Doe’s wife has sought counseling for her other two daughters as well as for
herself. Social Worker James did state
that he felt that Defendant Doe has had difficulty accepting that his behavior
is most likely the primary cause of his daughter’s problems in the community.
Pursuant
to the order of the Court in accordance with PC 288.1, a psychiatric evaluation
was performed on the defendant by Dr. Diane on April 30, 2003. It is assumed that a copy of this report has
been provided to the Court but a copy has been attached to this report as well.
Dr. Diane reports that the defendant “presents as a contradictory picture” in
that, on one hand, he appears to be a dedicated, “sensible”, church going
family man and, on the other hand, he used his daughter to satisfy his impulses
all the while knowing it was terribly wrong.
She points out that while the defendant is quick to point out that his
involvement in religion was a significant factor in stopping his behavior, he
was involved in his religious activities prior to beginning the abuse. Her rationale is that “he cannot point to
any new substantial solid church teaching or injunctions that he did not know
before his molesting of the child”.
Regarding
Dr. Diane’s opinion as to whether the defendant should be permitted to resume
living in the same home as the victim, Dr. Diane writes that he should be
“permitted to remain in the home only if there is an active treatment program
in place, involving all members of the family”.
Dr.
Diane does write that “it seems very unlikely that he will re-offend” although
he needs help to see his daughter as a victim.
Dr. Diane writes that the defendant is “probably not a danger to the
community” and incarceration will do little to assist the victim and
family. She does express concern that
the defendant does not appear as invested as he should be in taking a
therapeutic approach to his issues as well as his family’s issues. She writes that, due to his being a
“powerful figure” in the family, her “focus is drawn to the question of exactly
how much he could impede, or, on the other hand, assist, in the
much-needed reparative efforts for the child, and indeed the whole family which
has been sorely traumatized”.
Character References:
No
character references have been received as of the writing of this report.
RESTITUTION / RESTITUTION FINE
The
victim in this case is the defendant’s daughter. No restitution claim has been made as of the writing of this
report but, if one is made, the defendant should be ordered to pay restitution
at the direction of probation.
A
restitution fine in the amount of $200.00 is recommended pursuant to Penal Code
Section 1202.4.
DISCUSSION & EVALUATION
Circumstances in Aggravation,
Rule 421:
(a) Facts relating to the crime:
Rule 421(a)(1): The crime involved a high degree or
cruelty and callousness as the defendant threatened to hit his daughter with
his fist or a belt if she did not do what he wanted.
Rule 421(a)(11): The defendant took advantage of a
position of trust in that he was the victim’s father from whom she should be
able to expect care and protection.
(b) Facts relating to the defendant:
Rule 408: The defendant persisted in substantial sexual
abuse over a period of several years.
The abuse involved intercourse.
Circumstances in Mitigation, Rule
423:
(a) Facts related to the crime:
None.
(b) Facts related to the defendant:
Rule
423(b)(1): The defendant has no
prior criminal record.
Factors
in aggravation outweigh those in mitigation, therefore if state prison is
imposed, the upper term will be recommended.
Rule 413: Probation Eligibility When Probation Is Limited
The
defendant admitted three allegations pursuant to PC 1203.066(a)(8) which
prohibit probation for persons convicted of PC 288 who, in the commission of
the crime, have substantial sexual contact with the victim. However, PC 1203.066(c) states that PC
1203.066(a)(8) shall not apply when the Court makes five findings pursuant to
PC 1203.066(c)(1-5). These five
criteria will be addressed herein:
PC
1203.066(c)(1): This section relates to whether the
defendant is the natural parent of the victim.
The defendant is the victim’s natural parent.
PC
1203.066(c)(2): This section relates to whether a grant of
probation is in the best interests of the child. The psychiatric evaluation provided to the Court does not render
a decision directly related to this section.
It does relate that the defendant’s incarceration would do little to
help the victim. It also touches on
potential financial hardships the victim and her family may encounter if the
defendant were to be incarcerated. It
also relates that the victim may “be made to feel guilty and the cause of the
financial woes” of the family if the defendant were to be incarcerated. In discussion with the victim, she clearly
wants to have her father out of custody and in the family home with her. She appears to understand the need for
individual and family therapy and all members of the family appear willing to
participate. Based on this information,
with a counseling program in place involving all members of the family, it
seems that a grant of probation may be in the best interests of the victim.
PC
1203.066(c)(3): This section relates to the feasibility of
rehabilitation for the defendant, his amenability to treatment and whether he
can be immediately placed into a treatment program following a grant of
probation. The psychiatric evaluation
relates that the “defendant does not seem entirely open to following through on
a therapy program” and questioned his “ability to engage in treatment”. Dr. Diane did not offer a definite opinion
on this issue. The evaluation was
conducted on April 30, 2003. He met
with me on May 30, 2003. In that
intervening month, this defendant either had dramatic revelations about the
importance of counseling to his and his family’s recovery or realized that any
opposition to counseling would result in more serious ramifications for him and
his family. Whichever is the case, in
the probation interview he stated a desire to participate in individual and
family therapy to address the damage he has caused to his family. Whether this desire is sincere or not can
really only be assessed over time by the professional counseling staff
involved. At this time, rehabilitation
appears feasible if the defendant is cooperative. His stated willingness to participate in counseling appears to
render him amenable to treatment. And,
finally, there is a recognized treatment program available to address the
counseling issues. It should be noted
though that all of this is dependent on this defendant’s sincere and regular
involvement in whatever program in which he is directed to participate.
PC
1203.066(c)(4): This section dictates that the defendant be
removed from the home of the victim until the Court determines that the best
interests of the victim would best be served by returning the defendant to the
home. The victim has been out of the
family home for several months. It is
anticipated that she may be returning to the home in the near future. The psychiatric evaluation relates that, if
the victim returns to live in the home, the defendant should be permitted to
remain living in the home only if all members of the family are in
treatment. In addition, it appears
that, prior to the defendant’s arrest in March of this year, there was no
ongoing abuse being perpetrated by the defendant and, in fact, the abuse had
ceased a minimum of several years ago.
With all members of the family in counseling and hopefully engaging in
open communication, the victim should not be in any danger of further abuse. In addition, the victim, the defendant, and
the victim’s mother all state a desire to have the family living together
again. The victim has stated that she
would feel guilty if her father were incarcerated and would likely feel guilty
if the family cannot live, safely, together again. At this time, with counseling and probation supervision in place,
it appears in the best interest of the victim to permit the defendant to
continue living in the family home, even after the victim returns.
PC
1203.066(c)(5): This section relates to whether there is
any threat of physical harm to the victim if probation is granted. By all accounts of the victim, the
defendant, the CPS worker and Dr. Diane, it appears that the abuse ceased
several years ago. The victim stated
that the defendant apologizes regularly to her for his behavior. The defendant expressed remorse for the
damage he has caused to his whole family.
There are no indications that this defendant has engaged in any recent
abuse of the victim. With counseling
and probation supervision in place, and a willingness on Mrs. Doe’s part to
notify the police of any hint of trouble, the physical threat to the victim of
any further abuse appears minimal to non-existent.
In
addressing Rule 413 specifically, there do not appear to be any criteria
showing that this is an unusual case, pursuant to Rule 413, in which the
interests of justice would best be served by a grant of probation. However, PC 1203.066(c) addresses how a
grant of probation may be in the best interests of the victim, despite the
special allegation prohibiting probation pursuant to PC 1203.066(a)(8). The analysis of the criteria pursuant to PC
1203.066(c) seems clearly in favor of a grant of probation as it relates to the
best interests of the victim child.
Based on this, despite the lack of criteria pursuant to Rule 413 as it
relates to a grant of probation, probation appears appropriate in this case.
Criteria Affecting Probation,
Rule 414:
(a) Facts relating to the crime:
Rule 414(a)(1): The fact that this one count of PC
288 actually represents potentially over fifty separate incidents of substantial
sexual abuse clearly makes the nature, seriousness and circumstances of the
crime more serious than other instances of the same crime. This is seen as an unfavorable criterion affecting a grant of probation.
Rule 414(a)(4): The defendant inflicted physical and
significant emotional injury by forcing his daughter to have sexual intercourse
with him which is an unfavorable
criterion affecting a grant of probation.
Rule 414(a)(6): The defendant was the sole active
participant in this crime which is an unfavorable
criterion affecting a grant of probation.
Rule 414(a)(9): The defendant, being the victim’s
father, took advantage of a position of trust which is an unfavorable criterion affecting a grant of probation.
(b) Facts relating to the defendant:
Rule 414(b)(1): The defendant has no prior criminal
record which is a favorable
criterion affecting a grant of probation.
Rule 414(b)(3): The defendant states a willingness
to comply with terms of probation which is a favorable criterion affecting a grant of probation.
Rule 414(b)(4): The defendant presents as a
dedicated family man with strong religious conviction and of average
intelligence. He has no history of
substance abuse, appears gainfully self employed and seems to have the support
of his family in the community. While
his sincerity in regards to participating in counseling may be questionable, it
does appear that, if he is committed to addressing his issues, he clearly has
the ability to comply with reasonable terms of probation which is a favorable criterion affecting a grant
of probation.
Rule 414(b)(5): If the defendant were to be
incarcerated, his family will undoubtedly suffer financial hardship which is a favorable criterion affecting a grant
of probation.
Rule 414(b)(7): The defendant states remorse for the
damage he has caused his family and specifically how his actions have impacted
the victim which is a favorable
criterion affecting a grant of probation.
Rule 414(b)(8): The psychiatric evaluation concludes
that “the defendant is not highly likely to re-offend, and is probably not a
danger to the community in the future”.
Based on this and the fact that the defendant appears motivated to
address his issues, it does not appear, at this time, that Defendant Doe will
be a danger to others if not imprisoned which is a favorable criterion affecting a grant of probation.
Based
on the regularity the abuse was perpetrated over a period of years, coupled
with the truly substantial sexual contact involved, one would naturally expect
a state prison recommendation. However,
the abuse does not appear to have occurred for several years. The defendant appears to have addressed his
issues in the manner he knew how which was through religion and the support of
his church. The victim states that her
father has regularly apologized to her for his behavior and has expressed deep
remorse. The victim, as well as her
mother and the defendant, all appear motivated to try and keep the family
together.
It
appears that if the defendant were incarcerated the victim may internalize
guilty feelings which could be significantly detrimental to her. This fact alone is a very convincing
argument for a grant of probation.
There also does not appear to have been any recent abuse issues. These arguments, in addition to the
professional psychiatric opinion that the defendant does not appear to be a
danger to others in the community, are the basis for the recommendation for a
grant of probation in this case.
ANALYSIS & PLAN
Before
the Court is 35 year old Defendant Doe for his first criminal conviction
ever. Unfortunately this first
conviction involved truly despicable behavior involving a violation of trust,
parental responsibility and life altering trauma to the victim and the
defendant’s entire family. If this
abuse were recent without the apparent several year period of reparative effort
on the part of the defendant, a state prison recommendation would certainly be
made. There was, however, a significant
lapse in time between the time the abuse stopped and present day. The family has been living in the same home
since the abuse stopped and, by all statements from the victim and the victim’s
mother, things have been progressing in a positive direction. These factors coupled with the additional
trauma the victim may be subjected to if the defendant were incarcerated in the
state prison system all weigh in favor of a grant of probation.
It
is apparent that both the victim and the victim’s mother feel that the
defendant should be punished to some degree but struggle with this as they are
both concerned about the break up of the family and financial hardships. The fact that all members of the family seem
very committed to trying to keep the family together, and all seem eager and
willing to participate in counseling, are positive factors supporting a grant
of probation. Of some concern is the
information from both Dr. Diane and the Social Worker regarding this
defendant’s lack of acceptance of responsibility for his crimes and his
questionable willingness and ability to participate in counseling. The fact that it took him 4 months to get
himself involved may lend credence to these concerns.
He
did present, in the interview, as remorseful and willing to participate in any
counseling program in which he is directed.
His sincerity and investment in counseling can be tested over time. If he proves over time that he is not
invested in counseling or that he is resistant to reparative efforts within his
family, he needs to understand that the Court, during probation, still has the
authority to send him to state prison for up to eight years. Hopefully it is not this threat that drives
his motivation but a true desire on his part to participate in counseling and
assist with repairing as much of the damage that he has caused.
Probation
is being recommended in this case with standard counseling conditions at the
direction of probation. In addition, a
substantial jail sentence is being recommended as punishment is clearly in
order. Hopefully the family will be
impacted by his incarceration in jail as little as possible but this type of
behavior cannot go without serious sanctions.
He will likely be eligible for house arrest which will reduce the impact
on the family. Additional probation
conditions are elaborated below. If the
defendant has difficulty complying with probation conditions, or does not do
all that he can to repair as much damage as he can, he could be back in front
of the Court facing state prison, which he is fully cognizant of.
RECOMMENDATION
Imposition of
sentence suspended, and defendant placed on probation for a period of 5
year(s); 0 months, 0 days. Type of probation: SUPERVISED.
Defendant is placed
on probation under the following usual five terms and conditions:
1. The defendant is hereby placed under the
supervision and custody of the probation officer of the County of
Anywhere; 2. The defendant shall conduct him/herself in a law abiding
manner; 3. The defendant shall not leave the State of California nor move
his/her residence from the County in which he/she resides without prior written
approval of the probation officer or the Court; 4. The defendant shall
notify the probation officer immediately of any change in employment, marital
status, or place of residence; 5. The defendant shall report regularly as
directed by the probation officer.
As
to Count 1, defendant to serve 1 year in the custody of the Anywhere County
Sheriff.
Defendant to
participate in any treatment/therapy/counseling program including residential,
as directed by the probation officer.
The defendant shall
not cease involvement in any counseling program without the approval of the
probation officer or the Court.
The defendant must
waive all confidentiality between himself and any/all counseling staff with
whom he is involved.
Defendant is to
submit to any program of psychological or physiological assessment, including
polygraph or plathismograph testing, as directed by the probation officer.
Defendant shall not
engage in any further acts of violence, threats, stalking, sexual abuse, or
harassment involving the victim.
Defendant to pay
restitution fine in the amount of $200.00 pursuant to PC 1202.4. Stayed pending
successful completion of probation.
Defendant to
pay a fine of $200.00 pursuant to PC 290.3.
Defendant to provide
two specimens of blood and saliva sample pursuant to PC 296(a)(1), as well as
his right thumbprint and full palm prints of each hand.
Defendant shall
submit to a blood test for evidence of antibodies to the probable causative
agent of AIDS.
Defendant to seek and
maintain full-time employment/education/vocational training, as directed by the
probation officer.
Defendant to register as required
pursuant to PC 290 as a sex offender.
|
District Attorney
Dewey Chetum, Defense Counsel
|
Respectfully submitted,
|
_____________________
Steven
R. Shapiro
Correctional
Consultant
