Criminal Justice

Judge makes celibacy outside of marriage a condition of probation

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An Idaho judge sentencing a 19-year-old man for rape last week remarked on the defendant’s number of sexual partners and set an unusual condition for probation.

Judge Randy Stoker told Cody Duane Scott Herrera that, if he successfully completes an education and rehabilitation program, Herrera could be placed on probation rather than sent to prison. And while on probation, Stoker said, “a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married.” The New York Times, the Washington Post and the Twin Falls Times-News, have stories.

Before announcing his intent to impose the condition, Stoker noted that Herrera had told investigators he has had 34 sexual partners, according to the Times-News account. “I have never seen that level of sexual activity by a 19-year-old,” Stoker said.

Herrera was sentenced after pleading guilty to an offense related to sex with minors, according to the New York Times; the newspaper says that Idaho does not use the term “statutory rape.” The 14-year-old girl whom Herrera admitted to raping told the authorities that they had planned to watch a movie together, and he had entered her bedroom by climbing through a window. Instead, she said, he touched her sexually; did not stop when she asked him to; and went on to sexually assault her. The New York Times says Herrera was 18 at the time of the incident, while the Washington Post says he was 17.

The girl told police she told Herrera she was 16 when they first started dating. The girl’s mother says that once she found out about the relationship, she informed Herrera her daughter was only 14 and she was too young to date.

Twin Falls County Prosecutor Grant Loebs told the Washington Post that Herrera will be free to reject the probation agreement. Loebs also told both the Post and the New York Times that people on probation are barred from breaking the law—and Idaho has a law on the books that makes it a crime for an unmarried person to have sexual intercourse with an unmarried person of the opposite sex. Violators can be fined up to $300 and sent to prison for up to six months.

Herrera may also face further sexual misconduct charges, based on video and pictures he had taken of a different underage girl, the Twin Falls Times-News reported in an earlier story.

Harvard Law School lecturer Nancy Gertner told the Times that fornication laws are seen as unconstitutional following the U.S. Supreme Court’s 2003 decision, Lawrence v. Texas, which struck down a law barring sodomy. Judges are free to impose probation restrictions related to the offense, but “there are limits that have to do with dignity and substantive due process,” she said.

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