Too quick to judge judges
Massachusetts Superior Court Judge Suzanne V. DelVecchio has not been to the supermarket since she became a cause celebre on cable TV. She will be looking over her shoulder this weekend, she says, ''just in case someone attacks when I am reaching for the lettuce."
DelVecchio replaced Vermont District Court Judge Edward Cashman on cable television's national shout fests last week as the face of judicial coddling of child sex offenders. Cashman was being pilloried for trying to strike a balance between punishment and treatment in his sentencing of a child rapist. Now, DelVecchio is in hot water for giving probation to a 24-year-old former teacher who had oral sex with a high school student.
Both sentences certainly sound ill-considered, but how can we tell over the shouts of ''off with their heads?"
Earlier this month, Cashman sentenced a man who raped a preschooler over a period of years to a life sentence with all but 60 days suspended. From the bench, the judge said he did that because he believes punishment without treatment is insufficient and sex offender treatment was not available to prison inmates. After his ruling, the Vermont Department of Corrections said it would begin providing treatment in prison immediately. Cashman has agreed to review his sentence.
Wednesday, DelVecchio sentenced a Brockton man to two years suspended and five years' probation for statutory rape, a disposition that drew fire from the prosecutor who complained that the lack of jail time trivialized the abuse of power inherent in sexual contact between a teacher and student. Plymouth District Attorney Timothy J. Cruz had asked for a prison term of at least four years.
''I understand the argument that he was a teacher, but I heard the evidence. A few weeks later and there would have been no crime," DelVecchio said in an interview on Friday, noting that 16 is the legal age of consent in Massachusetts. ''This was consensual sex, one incident of consensual oral sex. The student was six weeks short of the age of consent. Was he mature enough to consent to sex that day? Was he going to be mature enough six weeks later? It's an arbitrary line. I tried to do the right thing."
Determining what constitutes ''the right thing" is never easy for judges but it is especially difficult in cases like these. Second-guessing judicial rulings has become a national pastime; we no longer expect judges simply to interpret the law but to be avenging angels.
For all the fear and anger engendered by the sexual victimization of children, we do a pretty poor job of wrestling with issues of prevention and recidivism. Our focus is appropriately, but perhaps too exclusively, on punishment and public safety.
Judge Cashman made himself a target not by ignoring questions of punishment and public safety but just by raising the issue of rehabilitation. The jury is still out on whether sex offenders respond positively to psychological counseling or behavior modification. But because serious people disagree about the efficacy of treatment, does that mean it should never be considered at sentencing?
Judge DelVecchio walked into another trap just by suggesting that an almost 16-year-old boy had consented to sex. ''This was not a situation of a child stalked and attacked by an adult," she said. ''There was no coercion. We might not want to face it, but the fact is that teenagers have sex. This train has already left the station. Should we talk about what is appropriate and what is illegal? Sure. But it shouldn't just be lawyers who decide how we are going to deal with these issues. We can put this stuff in the courtroom, but that's not really where it belongs. Everyone needs to get into the act."
Reasonable people can object to DelVecchio's decision not to give the defendant jail time; teachers have to be held to a higher standard in their conduct with students because of the obvious imbalance of power.
In an ideal world, disagreement spawns rational debate of difficult and contentious issues. In this world, it sparks cries of ''off with their heads!"
