Channeling outrage over a judge's labeling of children as aggressors in a sex crime, Kansas officials have taken steps toward changing the law that allows for assessment of victim behavior to reduce a predator's prison time.

Proposed legislation would eliminate a downward departure from sentencing guidelines in cases where the victim is younger than 14. The proposal, as part of a larger package of criminal justice issues, won approval in the House, but Rep. John Carmichael, D-Wichita, urged lawmakers to let a commission tasked with criminal justice reform to review the issue.

Carmichael said the facts in a highly publicized Leavenworth County case that sparked interest in sentencing reform go beyond the information reported in newspaper articles.

District Judge Michael Gibbens in December sentenced Raymond Soden, 67, to five years and 10 months in prison for the electronic solicitation of two teenage girls. Prosecutors wanted 13 years, but Gibbens said the victims acted as the aggressor — a distinction outlined under Kansas law.

Kansas Attorney General Derek Schmidt introduced legislation in February to remove a child's participation in a sex crime from judicial discretion. Lawmakers inserted the proposal into a mega-bundle of criminal justice bills shortly before the end of the regular session last week.

Carmichael joined colleagues in approving the bundled bill on a 123-0 vote while raising concerns about the case in question.

"I think it was very apparent that the elderly veteran with limited mental capacity, chronic depression and a host of other ailments was also a victim of a criminal conspiracy, and I personally do not disagree with the judge's use of discretion to provide some leniency in sentencing in that circumstance," Carmichael said.

Soden exchanged messages with the girls, who were 13 and 14 years old, on Facebook. They agreed to go to his house in exchange for sexual favors, and the judge believed the girls could have set Soden up to be robbed.

The Kansas City Star first published the judge's remarks after obtaining a transcript of the sentencing hearing.

“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,” Gibbens said.

Rep. Cindy Holscher, D-Overland Park, said the girls were being trafficked by family members.

"While there were many circumstances in this case regarding the defendant, the point remains that children — because they are under the age of consent — should not be considered aggressors in sexual abuse cases," Holscher said.

Although the downward departure is seldom used by judges, Holscher said its availability sends a concerning message to victims of sexually violent crimes.

"To know this parameter does exist in our judicial system, that a child can be currently labeled an aggressor in their case, is a deterrent to other victims in coming forward," Holscher said. "This statute needs to pass to give all victims a much-needed reassurance in our justice system."

Natalie Chalmers, an assistant solicitor general in Schmidt's office, said the goal of the legislation is to end victim-blaming for young children. In committee testimony earlier in the session, Chalmers said the sentencing departure that allows for consideration of a child's behavior typically is applied in sex crimes. She offered several examples.

One case dealt with criminal sodomy between a 35-year-old woman and 13-year-old boy. The child initiated kissing, reassured the woman over her concerns about the illegality of the years-long relationship and gave her a ring. The woman moved to New Mexico to escape the relationship.

In an indecent liberties case involving a 19-year-old man and 15-year-old girl, the judge departed from sentencing guidelines because the girl was scantily clad, engaged in self-gratification in front of the man and invited him to join her.

Chalmers encouraged lawmakers to concur with the attorney general's position that departures shouldn't be available when the victim is younger than 14. The age distinction would still allow judicial consideration for "Romeo and Juliet" cases, where the ages of a defendant and victim are close.

“As a matter of public policy,” Schmidt said in an episode of The Topeka Capital-Journal's Capitol Insider podcast, “when you have a sex crime with an adult perpetrator and a child victim, the child’s behavior is not relevant in figuring out how culpable the adult is.”

 

The legislation initially failed to advance beyond the House committee, but Senate negotiators secured its place in a package that also addresses counterfeit currency, diversion agreements, out-of-state convictions, the use of certified drug abuse treatment programs, and a requirement that law enforcement officials notify victims of domestic violence when the accused is released from custody.

The Senate didn't vote on the package before adjourning for a three-week break.