Guest Editorial
Victims Come First
(The Rutland Herald)

The violent death of Brooke Bennett amid horrific circumstances has jolted the justice system in Vermont. High-profile cases tend to do that.

And just as inevitably, it has renewed the debate over mandatory minimum sentences. Lt. Gov. Brian Dubie has suggested the state look again at the so-called "Jessica’s Law" and Rutland City Treasurer Wendy Wilton, a former state senator, has urged a petition drive to pass such a law.

But aside from the deserved public outrage over it, Bennett’s death is a poor example for Dubie and Wilton to make their case.

The sole suspect in Bennett’s disappearance and death is her uncle, Michael Jacques; her former stepfather, Michael Gagnon, is accused of obstruction of justice.

Much has been made of Jacques’ previous history, but there’s nothing there that would have made him liable to a "Jessica’s Law"-type statute, which originated in Florida as a 25-year mandatory sentence for sexual offenses against a minor.

Jacques was convicted of kidnapping and rape in 1993, but the case involved an adult victim, so "Jessica’s Law" would not have applied anyway.

WCAX recently reported that Jacques also was arrested in 1985 but not convicted on charges that he repeatedly sexually molested an underage female relative. Obviously, without a conviction, there’s no minimum sentence, but the fact the charges were dropped goes exactly to the concern that prosecutors and victims’ advocates have with mandatory minimums—which is that they make it harder, not easier, to put perverts behind bars where they belong.

This is particularly true in cases where the victim and perpetrator are related. It’s hard enough to get a young child to come forward with a complaint against a family member. It’s harder to get that victim to agree to repeat the testimony in a court, and can be tremendously destructive for the victim. When the only options are 25 years in jail or total exoneration—think O.J. Simpson—those charged are far more likely to fight the case and often will walk away, free to live in open society without even the need to report to a parole officer.

In such cases, a plea bargain for 10 years with no chance of early release and no risk of a trial often makes more sense than hoping for a longer conviction.

One of the great leaps forward in sexual assault law is the practice of removing the onus on the complainant, so the prosecuting attorney becomes the plaintiff as the case goes forward to trial. That’s particularly important in cases involving family members. Think about the alleged victim in such a case: Not only do they need to find the courage to come forward, they then have to live through a family crisis. Often they feel to blame for the crisis, when really it’s the molester at fault. Adult rape victims frequently are happy to accept a plea bargain to avoid the need to testify a second time. Why pass a law likely to force children to go through that ordeal?

Short sentences for child molesters usually come from one of two factors. Either the state’s case is very weak, so prosecutors fear losing and letting a molester go scot-free, or it is what is called a "Romeo and Juliet" case involving consensual sex between minors. That’s why most "Jessica’s Laws" include exemptions for cases involving minors. Some, targeted at the rare—through terrifying—cases of anonymous sexual predators, mistakenly exempt family members.

But in a case as horrific as the current one, the minimum sentence should not be at issue. Let’s be very clear: If Jacques is convicted of the kidnapping, rape and murder of his niece as outlined in the affidavit on the kidnapping charge, 25 years is nowhere near a sufficient sentence.

Rather than institute an inflexible an sometimes overlong mandatory minimum sentence, the state should start by reviewing its over-reliance on treatment programs, that may or may not work, when determining the fate of violent or repeat offenders.

It should look at programs like GPS tracking of paroled offenders—in a test program, Florida cut the recidivism rate from 12% to 3% almost immediately.

It should ensure victims and their proxies have the right to be heard clearly at sentencing and parole hearings. The legislature must hold judges accountable I they fail to do so.

Vermont should ensure that the process is as transparent to the public as possible so he community, particularly abuse survivors and their loved-ones, can see justice is done.

And most crucially, it should ensure that the victim’s rights are paramount at every step of the process, from investigation through punishment and, where appropriate, eventual state release of the convicted. That includes respecting Brooke Bennett as a little girl whose innocence and life were both snatched from her, and not using her memory to score cheap political points.