On second thought

It's been all over the news the past week or two that a judge in Montana sentenced a 53 year-old man to 30 days in jail. The crime? Having sex with a 14 year-old girl. A girl who had killed herself at some point between the initiation of charges and their resolution. The judge (an old white guy) made some comments about how the girl was older than her chronological age and was "as much in control of the situation" as the man old enough to be her grandfather without anyone being born too hideously young.

Wait, did I mention that the creepy old man was a teacher? Yep. A high school teacher at the very school the girl attended.

So the sex this creepy old man had with this 14 year-old girl was illegal on two counts. 1) She was too young to consent as a matter of law. 2) She was a student at his school. It is illegal for teachers to have sexual relationships with students because of the power dynamic.

Yet the girl ends up dead and the creepy old man ends up serving 30 days in jail. Cue justified outrage.

This judge was all kinds of wrong, and in such a way that he demonstrated he utterly fails to understand why certain types of sexual activity is categorically banned. Prison guards can't have sex with inmates. Doctors and lawyers can't have sex with active patients/clients. (Ok, that one's not illegal, just a matter for professional ethics boards.) Teachers can't have sex with students. Creepy old men can't have sex with young teenagers. And all for very good reason. Because in any of these scenarios there is an unfair power imbalance, carrying with it the risk that seemingly voluntary sex was actually coerced on levels even the inmate or patient/client or student of young teenager doesn't recognize. The inherent power imbalance between the two people in the above scenarios makes it nearly impossible for "consensual" sex to be truly consensual. All of which seemed to be lost on this judge who saw a 14 year-old student as somehow in control of her relationship with her 53 year-old teacher.

Prosecutors had said they would look into appealing.

Now tonight comes word that the judge himself has "backed down" (as nbcnews put it) and ordered a new sentencing hearing. The judge has apparently recognized that his sentence might have been an illegal sentence. Those are the key words, illegal sentence, because if the sentence he issued was within the range allowed by law, it was a discretionary decision that appellate courts shouldn't overturn. It appears that the judge's action isn't a direct response to anything filed by the state, but is just an order issued sua sponte (on the court's own initiative).

And now the defender in me is perking up. To this point, I've been in the "this judge is a jerk" camp because his lack of understanding of how these power-dynamic sex crimes work and his lack of sensitivity in comments about a girl who was troubled enough to take her own life. But now, I want to express concern about a judge issuing an order that's not even in response to any motion or pleading filed by the parties but is just a reaction to public outcry. That isn't ok. Judicial decisions, like sentencing, aren't supposed to be subject to public polling. Judges aren't supposed to alter their decisions because the public really, really didn't like what those judges did.

It's a very fine line between the public standing up to a corrupt or incompetent judge who doesn't follow the law and the public browbeating a judge who made a legally allowable but unpopular decision. I don't know enough about Montana sentencing law (and am not in the mood to research it) to know whether the judge's new order is correct, that the 30 day jail term is considerably less than the mandatory minimum. If that's true, then maybe the State would have grounds to file a motion to correct illegal sentence or to file an appeal. I'd be ok with that. But somehow, this doesn't sit right, a judge on his own declaring there will be a new sentencing hearing after he's been hounded by national press for days about his original sentencing decision.

In the end, perhaps this particular man will get a more appropriate sentence, but I won't feel particularly good about how he got it.

UPDATE

The latest word here is that the prosecutors, who clearly did not like the 30 day sentence, are absolutely opposed to this judge's declaration that he's going to re-do the sentence. Because, you know, a judge can't just do that.

This confirms that the prosecution hadn't filed a motion to correct illegal sentence, but that the judge acted on his own. He really doesn't get to do that. As the prosecutors in this article note, sentencing is final when it's pronounced from the bench. It has to go up the chain from there. Even if it is legally allowable for a district court judge to sua sponte recognize a sentence was illegal and thus needs to be re-done, it would be a very bad idea for this judge to take any further action in this case, given the tremendous outcry about this case. This judge needs to be done with this case.