Can children aged 13 and 14 years old be the aggressors in a sexual encounter with a 67-year-old man?
A Leavenworth County judge recently said he thought so when he reduced the prison sentence for a man who paid for sex with young girls he solicited over the internet.
District Judge Michael Gibbens sentenced Raymond Soden to five years and 10 months in prison. That was eight years less than what was called for in Kansas sentencing guidelines.
In doing so, the judge opined that the girls, who were both younger than 15, were partly to blame for what happened and questioned how much they were harmed. The judge pointed out that the children went to Soden’s house voluntarily and didn’t appear in court when he was sentenced.
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“I do find that the victims in this case, in particular, were more an aggressor than a participant in the criminal conduct,” Gibbens said before sentencing Soden. “They were certainly selling things monetarily that it’s against the law for even an adult to sell.”
The judge declined a request to comment for this story.
The judge’s comments at Soden’s sentencing drew questions and concern from prosecutors and advocates for child victims.
When Deputy County Attorney Joan Lowdon questioned some of the judge’s rationale for the sentencing departure, he told her it was something she could take up on appeal.
A possible appeal is being researched by prosecutors, according to Leavenworth County Attorney Todd Thompson.
“We have looked into filing an appeal, but we have not made a decision,” Thompson said. “We always try to zealously advocate for the victims and community safety in every case we pursue.”
Thompson said he could not comment beyond what was said in court. But a transcript from the sentencing hearing details the judge’s comments, which troubled advocates who work with abused children. Gibbens did not return a message from The Star seeking comment for this story.
“These girls are minors, and are the victims, not the aggressors,” said Michelle Herman, president and CEO of Sunflower House, a child advocacy center based in Shawnee.
“Sexual assault is never the victim’s fault. It doesn’t matter what the girls did or didn’t do, he is still the adult and nobody deserves to be taken advantage of sexually.”
According to Thompson, Soden had two prior criminal convictions: one for battery and one for sexual battery. Based on his criminal history, prosecutors argued for a sentence of 13-plus years in prison while his attorney asked for probation.
According to Kansas law, in order to depart from sentencing guidelines, a judge must find “substantial and compelling reasons.”
In Soden’s case, the judge cited as reasons evidence that the 13-year-old and 14-year-old had voluntarily gone to Soden’s house and had taken money for sexual favors.
Soden’s lawyer, Clinton Lee, had requested the lower sentence, saying that giving Soden the prison time called for in the guidelines was essentially a death sentence.
The defense attorney also noted that the girls allegedly tried to have someone rob Soden and that their older sister had been the one who arranged for them to meet Soden.
Soden knew the girl’s mother and paid her for chores around his house, according to statements at the sentencing hearing. Through that connection, he knew the woman’s older daughter whom he described as the “pimp” for her younger sisters.
The judge took those things into consideration in the sentencing and cited other factors, including Soden’s age, poor physical health and low intellectual functioning.
According to a statement the younger girl gave to authorities, she felt “uncomfortable” about an incident where there had been physical contact.
“And so she’s uncomfortable for something she voluntarily went to, voluntarily took her top off of, and was paid for?” Judge Gibbens asked the prosecutor.
“Yes, judge. She was also a 13-year-old who under our laws can’t consent to anything,” said Lowdon, the prosecutor handling the case.
The judge said he understood that, but told the prosecutor, “I wonder what kind of trauma there really was to this victim under those peculiar circumstances.”
At the sentencing hearing, the judge said he was “pretty familiar” with the girls already and that, based on what he knew about them, he believed it was possible that they could have set Soden up to be robbed.
The judge said the case was “bizarre” and “unfathomable,” and that the girls, particularly the youngest, were in a vulnerable situation.
He also said that the fact that the girls did not appear in court to speak at the sentencing was one of the reasons he believed that they didn’t suffer the level of harm typically seen in such cases.
“I think that a 13-year-old who offered what she offered for money is certainly an aggressor, particularly since she’s the one that had to travel to Mr. Soden,” the judge said.
Haleigh Harrold, coordinator of prevention for the Metropolitan Organization to Counter Sexual Assault, said it was absurd to think a child would have the ability to understand the consequences of engaging in a sexual relationship with an adult.
“Children and adults have very different life experiences and development,” she said.
She said that perpetrators target kids from troubled situations who may not have the kind of support they need.
“It doesn’t mean those children are at fault in any way or have to opportunity to consent in a relationship with an adult.”