TWIN FALLS — After sentencing a 19-year-old Twin Falls man to a year-long therapeutic prison program on a rape charge last week, a judge added an unusual caveat should the teen successfully complete the program and be placed on probation.
“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,” 5th District Judge Randy Stoker said.
The judge’s unusual proclamation was made during the sentencing of Cody Duane Scott Herrera, who pleaded guilty to the statutory rape of a 14-year-old girl in March 2015. Now, legal scholars are questioning whether the judge could hold Herrara to his warning.
Stoker said the condition would be put in place in part because Herrera told presentence investigators he’s had 34 sexual partners.
“I have never seen that level of sexual activity by a 19-year-old,” Stoker said.
Prosecutors also revealed Herrera, who could face more sex-related charges involving an underage girl, has had fantasies about a 13-year-old girl and watches pornography depicting rape.
The Idaho Department of Health and Welfare “did not designate Mr. Herrera as a sexual predator,” Stoker said during his sentencing, “though there seems to be an argument that could be made for that.”
The victim’s mother, making a victim-impact statement, certainly believed Herrera was a predator.
“It was his intent from the beginning to take what he wanted from my 14-year-old child — her virginity,” the victim’s mother told the court. “And he stayed around until he got it from her. Cody will never understand what he has done to our family. Cody robbed her of her innocence. He destroyed the child left in her. This can never be returned.”
Stoker sentenced Herrera to an underlying prison sentence of five to 15 years, but suspended the sentence in favor of the year-long rider program. If Herrera successfully completes the program, he’ll be released to probation, and, according to Stoker, a life of celibacy unless he weds.
But that probation condition might be illegal or unenforceable, according to Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law.
“I would suspect (a judge can’t do that),” Sanders said. “I think it infringes on his constitutional rights.”
While judges “have quite a bit of discretion” in creating special probation terms, Sanders said, they can’t violate the federal or state constitution.
“I think if he appealed, he would win,” Sanders said.
Twin Falls County Prosecutor Grant Loebs said he did think Stoker would be able to impose the probation condition.
“The judge has the ability to tell people to do or not do all sorts of things that are (otherwise) legal and constitutional,” Loebs said, pointing out that abstaining from alcohol is a condition of most probations.
“A judge’s purpose is to keep them from committing another offense,” Loebs said. “A judge has right to order things to keep him from doing that … I don’t think this goes beyond what a judge is allowed to do.”
But Sanders pointed out two cases that Herrera could use to defend himself from an overreaching probation condition. One case out of Texas that went to the Supreme Court protected the rights of all citizens to engage in sexual activity in private with another consenting adult.
The other case, from Oklahoma, protected the general right to procreate after the state tried sterilizing criminals.
“There, the court said there is a right to procreate,” Sanders said. “In this particular situation, we seem to have an order infringing on (Herrera’s) right to procreate. A court can’t dictate how he decides to procreate.”
Sanders said she’s never seen a ban on sex as part of a probation requirement, calling it “bizarre” and saying it would also raise Fourth Amendment issues.
“Probationers already give up a lot, especially in terms of law enforcement monitoring,” Sanders said. “But how would you even enforce this? It seems to be quite intrusive if they can just bust into his bedroom to make sure he’s not getting it on.”
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