NEWSPAPER EDITORIAL
Does the punishment fit the crime?
September 8, 2008 - When 40-year-old Denise Harvey was recently sentenced for having sex with a teenage friend of her son’s to 30 years in prison, the newspaper of record in Florida, wondered if the punishment fit the crime.
Recent, roughly comparable cases suggest that Harvey’s punishment was grossly out of proportion.Baseball coach testifies he told police about alleged sex between teen, mom (July 2, 2008)
When middle school teacher Debra Lafave was convicted for her ongoing sexual flings with a 14-year-old student in Hillsborough County, she received not one day of jail time. Instead, she got three years of house arrest and seven years probation. Though she subsequently violated that probation, she still has served no time behind bars.
In Martin County, South Fork High School teacher Shawn Trotter had sex with a 16-year-old female student three times on campus. He was sentenced to 10 years — a year less than the “deal” prosecutors offered to Harvey.
Without in any way excusing Harvey’s actions, it seems odd that two teachers — operating under the color of authority as school district employees — would receive more leniency than the Vero Beach woman.
While Lafave and Trotter lost their jobs, Harvey has effectively lost her life. If required to serve her full sentence, she would be 70 years old upon release.
Man stands by wife in sex case in Indian River (July 3, 2008)
"If I remotely thought she (Denise Harvey) cheated, I would have divorced" her, Vero Beach resident Charles Harvey said. [tt- He did not show up for sentencing.] The teen's sister walked in on them in his bed, according to trial testimony. The husband called the 16-year-old boy a liar. Denise Harvey's DNA was found on a condom at the boy's house.
Vero Beach woman guilty of sex with a minor (July 4, 2008)
Harvey was found guilty by a jury after 90 minutes of deliberation. The jury convicted her of having four sexual encounters at the home of the youth's stepfather. The fifth, the jury said, was in Denise Harvey's second-floor office in a bank building on U.S. 1 in Vero Beach.
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TT - Useful to remember is that Shawn Trotter took a plea deal that sentenced him to 10 years in prison. Harvey was offerred a similar plea deal that would have meant 11 years in prison. She elected to go to trial instead.
tt- entry for Trotter.
UPDATE September 9 - Indian River County Circuit court case records are not online.
Although newspapers do not list the statutes, it is:
2008->Ch0794->Section%2005#0794.05">794.05 Unlawful sexual activity with certain minors.--
1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this section, "sexual activity" means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose.
. . .
(3) The victim's prior sexual conduct is not a relevant issue in a prosecution under this section.
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It is a second degree felony that is punishable by up to 15 years. (Per count.) Notice the age of the victim. To prove the elements of the crime, State must prove the three elements beyond a reasonable doubt: Age of the victim. Age of the defendant and the activity.
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RESOURCES:
From the Florida Department of Corrections: Overview of Florida's Sentencing Policies
From the Cobb Criminal Defense Law Firm: Felony Criminal Punishment Code Scoresheet.
Editor's Note: The actual Scoresheet is a form with boxes. This contains the actual text of the scoresheet without the boxes. The magic number is 44: Anyone scoring above 44 points "must" be sentenced to state prison under the Code.Scoresheets Received Compared with Admissions to the Department of Corrections by Judicial Circuit show that Scoresheets Received through September 1, 2007 for Offenders Sentenced between July 1, 2006 and June 30, 2007 from the 19th Circuit range from 89.6% for Supervised Admission to a high of 92.6% for those Prison Admissions.
However, the plea bargaining process can a) reduce the number of counts charged, b) have an agreement not to score certain items, c) substitute charges, d) reduce the actual count charged, or e) several other creative techniques can be used to get someone sentenced to a non-incarcerative sentence. Note the departure grounds under Rule 3.992(b), but also note the actual language of the "Sentence Computation" because someone charged with a felony can be sentenced to state prison even if the score fewer than 44 points. For this reason, felony cases are always very serious legal matters.
tt - Rather than editorialize about the "unfairness of the sentence," it would be helpful if newspapers educated their readers so that they are aware that plea bargains are admissions of guilt, or, in the case of no contest pleas, the acceptance of guilt. In itself, that may be seen as remorse. (Remorse is somewhat essential. We've seen cases where the defendant, despite a guilty plea, refuses to acknowledge remorse and the judge refused the plea bargain.)
Plea bargains spare the victim from testifying. Plea bargains invariably include a provision that the defendant will not appeal the sentence. This spares the victim endless appeals and possible retrials. Those are major considerations for the prosecution and the court. And the victim or their family.
It is lazy journalism to editorialize about the "unfairness of a sentence" without referring to the actual sentences given in Florida in each county. It is irresponsible journalism to try to create an issue when none exists. The law is clear. The jury verdict was clear and the penalties are spelled out in the Criminal Code. She took her chances in a court of law and lost.
She should have picked another state, a different county, another prosecutor or another courtroom.
