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Appeals court affirms sentence aimed at deterring Amish from covering up child sexual assault

State v. Westley D. Whitaker, 2021 WI App 17, petition to review granted, 6/16/21, affirmed, 2022 WI 54; case activity (including briefs)

This appeal raises a hot-button issue likely to interest SCOW. Just last year an investigative journalist reported that Amish communities do not report sexual assaults of children to social workers or police. Parents and church elders strive to address the problem themselves. (NPR story). That’s what happened in Whitaker’s case. He repeatedly sexually assaulted his younger sisters then stopped when he was 14. His crimes went unreported until he was 25, well after he had left the Amish community. He pled to one count of 1st-degree child sexul assault and requested a “fines only” sentence. The circuit court found no risk that he would re-offend and no need for rehabilitation. Yet it imposed a prison sentence in order to “send a message” to the Amish community that this behavior is unacceptable and members need to report it.

1st Amendment. Whitaker argued that the circuit court improperly considered religious beliefs  or association with a religious community when it imposed a sentence of 2 years initial confinement and 2 years extended supervision in order to encourage the Amish to report child sexual assault.

The 1st Amendment bars a court from basing a sentence on a defendant’s or victim’s religious beliefs or associations. State v. Ninham, 2011 WI 33, 333 Wis. 2d 225, 797 N.W.2d 451. It also precludes a court from considering a defendant’s lack of religious affiliation as an aggravating sentencing factor. State v. Fuerst, 181 Wis. 2d 903, 512 N.W.2d 243 (Ct. App. 1994)(applying the Lemon v. Kurtzman, 403 U.S. 602 (1971) test for whether State action interferes with religion). A sentencing court may consider a defendant’s religious beliefs and practices only if a “reliable nexus” exists between his religious beliefs and his criminal conduct. Fuerst, 181 Wis. 2d at 913 (applying U.S. v. Lemon, 723 F.2d 922 (D.C. Cir. 1983)). See also, Dawson v. Delaware, 503 U.S. 159-166-167 (1992)(ditto re the defendant’s protected beliefs or associations).

The circuit court made its rationale clear. It hoped the sentence would deter the Amish from permitting their sons and husbands to engage in such behavior. It wanted Amish elders to pay attention to the sentence. They should not handle child sexual assault within the community; they should report it to the judicial system. Opinion, ¶¶26-29. 

The court of appeals agreed that the sentence was not aimed at deterring Whitaker specifically from such conduct in the future. The circuit court stated on the record that his current life (full-time job, raising a child, no criminal history) indicates that he poses zero risk of recidivism and no need for rehabilitation. Opinion, ¶12.

Whitaker argued that the sentence was not aimed at the general deterrence of sexual assault either. It was aimed specifically at the Amish. (Whitaker’s Brief at 13). The court of appeals brushed this off as the circuit court simply “mislabeling” its sentencing rationale. What the circuit court had meant was that the sentence was aimed at “child protection,” which is a legitimate sentencing rationale. Opinion, ¶37.

The court of appeals assumed for the sake of argument that the circuit court potentially infringed Whitaker’s protected religious beliefs or right to associate with a religious community. It affirmed because it discerned a “reliable nexus” between the circumstances of Whitaker’s assaults and giving him prison time in order to send a message to the Amish community. Opinion, ¶¶39-44.

Whitaker pointed out that there are civil remedies for addressing institutional failures by civil or religious organizations to protect children. Using a criminal sentence to compel the Amish to change their social and moral standards violates the 1st Amendment.  The court of appeals dodged this point as undeveloped. Opinion, ¶39.

Eighth Amendment. A sentence may violate the 8th Amendment when the punishment is inconsistent with “evolving standards of decency that mark the progress of a maturing society.” Ninham, ¶46. Whitaker argued that his sentence violated this standard because he committed the assaults between the ages of 12 to 14. Had he been sentenced as a juvenile offender, he could not have received more than 30 days of punitive incarceration per offense under §938.34(3)(f)1 (2005-2006). Twelve years later, as a reformed adult, he confessed to the crimes in order to help his sisters move past their trauma. He requested a fine-only sentence.

The court of appeals showed no sympathy. Whitaker’s sentence was not disproportionate to his offenses so as to shock public sentiment or violate the judgment of reasonable people about what is proper in these situations.  Whitaker assaulted his sisters night after night for years and used threats to keep them quiet. The imposed sentence was a small fraction of the 60-year bifurcated sentence available based on the course of his “abhorrent” conduct.  Thus, it did not violate the 8th Amendment. Opinion, ¶¶57-62.

Gallion. Whitaker also argued that the circuit failed to explain how its stated purposes were advanced by the sentence it chose as required by State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197.  This argument only prompted the court of appeals to fix the circuit court’s mistake and uphold the sentence. Opinion, ¶63-70.


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