Constitutional Law Criminal Law

Idaho Judge Requires 19 y/o Convicted of Statutory Rape to Remain Celibate Until Married

An Idaho judge has ordered a 19-year-old man not to have sex with anyone before he marries as part of his sentencing for statutory rape of a 14-year-old girl. Judge Randy Stoker sentenced Cody Duane Scott Herrera of Twin Falls to five to 15 years in prison, but he suspended the sentence for a “rider” program. The program is a temporary six-month prison term that gives a judge “retained jurisdiction” over the case. After the defendant completes the program, the judge rules whether the defendant should be sentenced to prison or probation.

If the unmarried Herrera successfully completes the program, he could be released on probation, which requires celibacy unless he weds. Stoker said the probation condition is needed because Herrera told pre-sentence investigators he’s had 34 sexual partners. “If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” Stoker told Herrera. Herrera in March pleaded guilty to statutory rape of the 14-year-old girl. The incident occurred when Herrera was 17. He had argued that the sex was consensual and the victim claimed that while she allowed him into her bedroom through her window and agreed to kiss him, she stated she told him she wanted to go no further but he then forced himself upon her. Herrera decided to accept the plea bargain to non-force statutory rape right before trial with the condition that he NOT be required to register as a sex offender. That to me indicates the force theory was not likely to be proven.

Herrera’s Mug Shot

First of all – 34 sexual partners and the guy is only 19 years old? What is going on in Idaho? “I have never seen that level of sexual activity by a 19-year-old,” Stoker, the judge, told Herrera during the sentencing hearing. OK, but is that a reason to enhance a criminal penalty or to order an adult to be celibate? Second of all, by distinguishing sex in marriage as legal as opposed to sex outside of marriage as illegal, the order is likely unconstitutional. The hitch here is that Idaho still has a “fornication law” on the books which prohibits and criminalizes sex outside of marriage. Probationers are required to abide by all of the laws in the State which would include this one. But all across the country these “fornication laws” have been found to be unconstitutional so this one would also fall if challenged. Finally, in general, these kinds of restrictions violate several Constitutional principles: right-to-privacy; equal protection; cruel and unusual punishment; and due process among them.

Of course, unless one of his future sexual partners rats him out, it would be impossible to enforce this ban.I suspect that his lawyers will appeal and challenge that portion of the sentence once he completes the rider program and it is placed into effect.

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