With the elections over maybe the Alaska Legislature can agree on one thing in the upcoming session -- that Alaskans deserve the same protection from predatory rapists that other states provide.
This past fall an Alaska judge found Probation Officer James Stanton threatened women probationers he supervised with prison time or the loss of their children over failed drug tests unless they had sex with him. A grand jury indicted Stanton on three counts of sexual assault and bribery.
So how did Stanton end up with a slap on the wrist sentence of just six months? The judge dismissed the sexual assaults, concluding the facts didn't meet Alaska's definition of "without consent." The judge was right. It's way past time our Legislature fixed that.
In Alaska, to successfully prosecute a sexual assault, the state must prove the sex was "without consent." That's fine. But our Legislature has seen fit to go on and narrowly define "without consent" as:
"[W]ith or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone; or is incapacitated as a result of an act of the defendant."
Stanton didn't use force. He didn't have to. He threatened his victims. Alaska's Legislature seems to think the only threats that make sex non-consensual are threats of death, imminent physical injury, or kidnapping. There are worse threats to a woman than physical injury - like Stanton's threat she would lose her children.
This isn't the first time Alaska's statute has been shown inadequate. In 1991, thanks to some courageous women, I convicted Dr. Kenneth Ake of sexually assaulting six of his patients during his ob-gyn examinations of them. That case almost didn't get prosecuted for the same reason Stanton's wasn't.
Because Ake's victims were neither incapacitated nor threatened, the prosecution would have to prove they were "coerced by the use of force." An overworked District Attorney didn't think he could prove that in the context of a gynecological exam. As a prosecutor in the Office of Special Prosecutions & Appeals, I asked if I might look at the case and was given the file with "best wishes."
"Force" is also defined. It includes "any bodily impact, restraint or confinement." Having myself been subject to a gynecological exam, I was able to put the assaults in context. Ake's victims were isolated in a small room with no windows. They were told to strip and don items provided by the rapist that ensured they were vulnerable to him. They were on an elevated table, flat on their backs and with their feet in metal stirrups -- and additionally "blindfolded" by a cloth draped over the knees, so they couldn't the rapist approaching them with his penis out. Ake was between his victims and any escape. He penetrated them for just moments, and then left -- leaving them shocked, alone, frightened, afraid no one would believe them and just wanting to escape.
There was plenty of restraint and confinement. The court agreed.
But if Ake's victims had not been aware he was penetrating them with his penis instead of two fingers in the digital portion of the exam, under Alaska's statute he could have raped them and any other patients with impunity - even though such victims would have in no way consented. So, after the Ake prosecution, Alaska's Legislature amended the statute to also criminalize:
"[E]ngaging in sexual penetration or contact with a person who the offender knows is unaware that a sexual act is being committed and the offender is a health care worker; and the offense takes place during the course of professional treatment of the victim."
Enough with a Band-aid approach to protecting Alaskans from predatory rapists. There are many states that provide true non-consent protection for their citizens by simply requiring the prosecution prove the victim did not consent to the sexual act. These states don't allow a predator like Stanton to cherry pick his threats, intimidation and coercion so as to avoid Alaska's narrow language.
The Alaska legislature might look at the statutes of Colorado, Florida, Georgia, Hawaii, Missouri, Nebraska, Nevada, New Hampshire, New York, Oklahoma, Oregon, Pennsylvania, Tennessee, Utah, Vermont, Washington, or Wisconsin, amongst others.
The governor's web site includes his 2009 pledge that Alaska will take every step necessary to stop the epidemic of sexual assault in Alaska. He goes on to say, "Since then, we have witnessed more and more Alaskans finding the courage to speak, and the strength to act." Stanton's victims had the courage to speak and the strength to act. Shame on Alaska for abandoning them.
Val Van Brocklin is a former prosecutor
By VAL VAN BROCKLIN