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Judge’s invocations of religious deity were “ill-advised,” but do not show he imposed sentence based on religious considerations

State v. Robert J. Betters, 2013 WI App 85; case activity

When sentencing of Betters for child sexual assault, the judge stated that “every child is a gift from God,” and indicated Betters’s conduct toward the victims was “an abomination in the sight of God and in the sight of man, and … totally unacceptable.” ( ¶¶4, 15). The court of appeals rejects Betters’s claim that these references show the judge sentenced Betters based on religious considerations because the “offhand religious references” (¶20) addressed proper secular sentencing factors:

¶17      The sentencing court’s belief that “every child is a gift from God” does not constitute an impermissible religious factor. Placing this comment in context, it is clear the court was referring to the secular notion that an individual’s “greatest duty” is to “protect the innocent.”As the court explicitly recognized by referring to this mandate as a societal obligation, this duty is plainly expressed in statutes criminalizing sexual conduct between adults and minors. See Arnett [v. Jackson], 393 F.3d [681,] 687-88 [(6th Cir. 2005)] (“[O]ur society has a long history of sternly punishing those people who hurt young children.”). The court properly observed that Betters’s violation of this societal duty would likely impact the victims for the rest of their lives. Thus, although the court’s religious comment was ill-advised, the court’s actual sentence was informed by proper secular factors regarding the seriousness of the offense, and the nature and extent of injury to the victim.

¶18      Similarly, the court’s statement that Betters’s conduct was “an abomination in the sight of God and in the sight of man” does not represent reliance on an impermissible religious factor. To the extent the court’s statement suggested its “personal sense of religiosity” was offended by Betters’s conduct, its immediate reference to “the sight of man” suggested that Betters’s sexual abuse was no more offensive to the court’s religious sensibilities than it was to well-established social norms. By immediately placing Betters’s conduct in a secular context, the court mitigated any perception that its comments were intended to establish that the “court’s own sense of religious propriety had somehow been betrayed.” See [United States v. Bakker, 925 F.2d [728,] 740-41 [(4th Cir. 1991)].

The leading case on this issue is Bakker, which involved the famous televangelist who was convicted of defrauding parishioners. At sentencing the judge referred to the defendant’s conduct as resulting in “those of who do have a religion” being “ridiculed as saps from money-grubbing preachers or priests.” 925 F.2d at 731, 740. That comment–and it was the only one the judge made–led the appellate court in that case to conclude it created the perception that the judge was taking into account his own personal sense of religiosity. Id. at 740.

The court here notes (¶5 n.1) that the parties argue about the propriety of citing an unpublished per curiam opinion in another case in which the same circuit judge made similar comments and had been admonished (but not reversed) for doing so. The court concludes the debate is “academic” because it doesn’t aid Betters’s argument. Betters cited to the case not for persuasive or mandatory authority, as it has neither (Rule 809.23(3)(b) allows citation of unpublished authored opinions for their persuasive value); rather, he argued, it suggests the judge’s religious considerations are not isolated and irrelevant statements, but a motivating sentencing factor for this particular judge. (Betters’s brief-in-chief at 8-9; reply brief at 1-2).

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{ 1 comment… add one }
  • Robert R. Henak June 21, 2013, 8:33 am

    In holding that the sentencing court’s reference to the offense being “an abomination in the sight of God and in the sight of man” was permissible if ill-advised, the Court of Appeals overlooks the actual context of that Biblical phrase. The Bible doesn’t condemn sex with a teenager as an “abomination” since such conduct was regularly accepted at the time. Accordingly, the Court of Appeals perception that the reference was to the seriousness of the modern day offense of sexual assault of a child is clearly mistaken.

    Rather, the referenced “abomination” was homosexuality, the victim of Better’s offense being a teenaged male rather than a female. Under the King James Version of the Bible, Leviticus 18:22 is translated: “Thou shalt not lie with mankind, as with womankind: it is abomination.” The sentencing court’s invocation of that provision of the Bible accordingly gives every indication that it imposed a sentence much longer than even the state requested, not because a child was the victim, but because the defendant is homosexual.

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