Increased Term in Abuse of Girl Upheld : Court: Justices set precedent, ruling that transmission of incurable disease warrants the longer sentence.

By HENRY WEINSTEIN

Feb. 22, 1992 12 AM PT

TIMES STAFF WRITER

In a precedent-setting decision, a federal appeals court ruled Friday that the transmission of a highly contagious and incurable sexual disease during an assault on a child warranted a substantial increase in a criminal defendant’s sentence.

The U.S. 9th Circuit Court of Appeals held that the sentence of an Arizona man who repeatedly assaulted his 9-year-old niece could be increased from 11 years and 3 months to 17 years and 6 months because he infected the girl with herpes type-II virus.

Herpes has “obvious and detrimental impacts on a person’s lifestyle and relationships” and makes natural childbirth difficult, Judge Alfred T. Goodwin said in his majority opinion.

Judges Jerome Farris and Cecil F. Poole joined in the unanimous opinion, which affirmed the increased sentence imposed by U.S. District Judge Paul G. Rosenblatt and quoted his reasoning approvingly:

“While someone may overcome the psychological trauma of sexual abuse, it’s also clear that by virtue of the recurring nature of this particular disease, that it would be a constant and recurring reminder of the abusive act itself.”

University of Michigan law professor Catherine MacKinnon, a nationally recognized expert on sexual abuse, said the decision is significant and reflects increasing sensitivity on the part of judges to the harm caused by sexual assaults. It affects defendants in nine Western states, including California.

In particular, she praised the judges for noting “how the permanent physical effect of the disease serves to sustain and exaggerate the suffering of the victim . . . over the rest of her life.”

Federal sentencing guidelines allow extra prison time to be imposed based on the severity of injuries to a victim. The greatest sentence increase is allowed for permanent injury, and the appeals court upheld the view that the herpes virus qualifies as an incurable affliction.

MacKinnon said that although the court could not increase a sentence solely because of mental harm, the judges did a good job of linking the permanent physical harm to ongoing emotional trauma experienced by the victim.

“Women have known for a long time” about the long-term impact of sexual assaults, MacKinnon said. “That knowledge is starting to get through to men.”

The decision’s focus on the crime’s effect on the victim was applauded by Loyola University law professor Laurie Levenson, a criminal law specialist.

“It’s a more realistic view of the long-lasting impact of this criminal behavior,” Levenson said. “This girl will have to live with the consequences of this crime for a lifetime.”

The case arose from a series of assaults that began in 1988 on a remote part of the Navajo reservation in Shiprock, Ariz. According to testimony introduced at a 1990 trial, Roger James abused his niece over a 15-month period.

“The victim’s father had abandoned the family shortly after she was born. James assumed a father-like relationship and then abused the trust,” said Gary Husk, who prosecuted the case when he was an assistant U.S. attorney.

The prosecutor said that James gave the victim small amounts of money to keep the assaults secret and later threatened her to keep her quiet. The assaults came to light, Husk said, when the girl had such a severe outbreak of herpes that she was taken to an emergency room with a high fever and hallucinations.

Husk said testimony revealed that James had previously been treated for a discharge from his penis and had been given medication and that a doctor “had provided and strongly suggested” that he use a condom during intercourse. “He had been put on notice that he had a problem,” Husk said.

“The significance of this decision is a recognition by the 9th Circuit that an individual who knowingly engages in sexual activity with children when he has a communicable disease is to be treated more severely than someone who does not have a sexual disease,” Husk said.

James’ attorney did not return calls seeking comment.