Crime & Courts

Kansas AG wants new law after judge labeled child victim the ‘aggressor’ in sex case

A Leavenworth County judge’s decision calling a child victim an “aggressor” in a sex crime committed by a 67-year-old man has prompted the Kansas attorney general to call for a change in state sentencing law.

Attorney General Derek Schmidt said Monday that the proposed new law would prevent a judge from lowering an offender’s prison sentence due to finding a child victim younger than 14 an aggressor.

“No matter the child’s behavior, child victims are not responsible for the criminal conduct of adults who commit sex crimes against them,” Schmidt said. “In my view, the law should reflect that simple principle.”

The proposal stems from the case of Raymond Soden, a Leavenworth man who was sentenced in December for soliciting sex from teens online. The Star published a story about the case earlier this month.

The judge in the case said he believed the victim, a 13-year-old girl, was the aggressor in the case and granted Soden a significant departure from the prison term called for in sentencing guidelines.

Instead of the 13 years and 10 months called for in the guidelines, Leavenworth District Judge Michael Gibbens sentenced Soden to five years and 10 months in prison.

The judge found that there were “substantial and compelling reasons” to depart from the guidelines, including the behavior of the 13-year-old victim and another 14-year-old victim in the case.

During the sentencing hearing, the judge opined that the girls were partly responsible for what happened and questioned how much they were harmed.

The judge pointed out that the children went to Soden’s house voluntarily. And the judge repeatedly pointed out that the victims took money in exchange for sexual favors.

“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 also said the fact that the girls did not appear in court to speak at the sentencing was one of the reasons he believed they didn’t suffer the level of harm typically seen in such cases.

Schmidt’s proposal would make the aggressor finding unavailable as a sentencing factor in sex crimes when the victim is younger than 14 and the offender is an adult.

It also would make that departure unavailable when human trafficking victims are involved, regardless of their age.

Rep. Cindy Holscher, an Olathe Democrat, said she has been developing her own legislation to fix what she calls the “aggressor loophole.”

She said she will reevaluate whether to offer the bill in light of Schmidt’s proposal, but said several lawmakers had approached her about taking action to change the law.

“The main thing is that it gets addressed,” Holscher said.

Holscher said she didn’t know that feature of Kansas law existed until The Star’s story.

“Yes, (the judge) was working within parameters, but yes, there was a loophole there,” Holscher said.

Leavenworth County Attorney Todd Thompson said that although he disagreed with the judge’s decision to grant a lower sentence, current Kansas law prevented him from filing an appeal.

“When appealing a case we must remove the emotional component and focus solely on the legal argument. In this case we do not have the legal argument,” Thompson said.

“We are grateful to Attorney General Schmidt in recognizing this flaw in the law and working with us to immediately take action to fix it.”

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Tony Rizzo covers federal and state courts for The Kansas City Star, where he has been a reporter for more than 30 years. He is a Kansas City native and veteran of the U.S. Army.