There was no evidence the October 2015 attack on a black, disabled Dietrich High School football player was motivated by sexual arousal, gratification or abuse — making it impossible under Idaho law to charge it as a sex crime, Idaho’s attorney general said Wednesday.
Lawrence Wasden defended his office’s prosecution of John R.K. Howard for the incident where a clothes hanger was kicked into the black teen’s buttocks in a school locker room.
Howard, 19, was originally charged with forcible sexual penetration with a foreign object, a felony. In December, he entered an Alford plea to felony injury to a child, maintaining his innocence but acknowledging prosecutors could have won a conviction. The ultimate fates of two others charged as juveniles are unknown, as their cases are sealed.
“It is not, in my view, a sex crime,” Deputy Attorney General Casey Hemmer said at Howard’s change-of-plea hearing, a statement that led to national criticism.
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What was it then? Extreme bullying and hazing, Wasden and Hemmer said Wednesday. “And it was targeted at anyone that these persons believed or perceived as being weaker or younger,” Wasden said.
A freshman player who was nearby when the victim was targeted told Howard and the others to stop. “‘It’s not any of your business or we’ll do the same to you,’” Wasden said the bullies told the other player. “They were victimizing a whole variety of people.”
Last week, Howard was sentenced to 300 hours of community service and three years of probation, renewing the public outcry — including attention to a petition calling for 5th District Judge Randy Stoker’s removal.
Wasden, Hemmer and several other officials sat down Wednesday afternoon with the Idaho Statesman to talk about the case.
Q: What were your goals in prosecuting this case?
Wasden: This was a tough case to handle, because we have two primary goals. No. 1 was to protect this very vulnerable young man. What happened to him was tragic and terrible. We have an obligation to protect him. The other thing that we have an obligation to do, and a commensurate responsibility, is to hold the perpetrators responsible. And that’s precisely what we did here.
Q: A lot of people say you didn’t protect the victim, you didn’t go far enough.
Wasden: We have to take into account, what did we do to protect this victim? We have to recognize that he did not want to testify. His parents did not want him to testify. In fact, it was not in his best interest to put him on the stand. And so, as a consequence, we chose not to do that. We couldn’t try this case without putting him on the stand. And it was not good for him to do that. And so the consequence of that is, what else do you do? The answer is we were able to get a felony conviction ... for the defendant and still preserve the victim in fulfilling his wish not to testify.
Q:What would have happened if you had gone to trial?
Wasden: The case would have been tried as a felony injury to child case because that’s where the facts fit. ... Secondly, there would have been the potential of a conviction on that case or a lesser crime of battery, or it could be that there would not be a conviction at all. So those are the risks you have associated with that case. You have to take into account, not only the provable facts you have, but the quality of evidence that you have, how well the witness is going to perform on the stand and, in this instance, there were countervailing recorded statements that you have that all goes into how effective we are going to be in proving our case beyond a reasonable doubt.
Q: It would seem like the victim’s shifting stories would have made it difficult.
Wasden: It certainly added to our prosecutorial challenges. We felt committed to putting an end to this abuse of this young man. But there were statements we were going to have to face at trial and it does add to the challenges of prosecuting the case.
Q: The Idaho Coalition Against Sexual and Domestic Violence said you were “complicit in state-sanctioned sexism, racism, able-ism and violence.” How do you respond to that?
Wasden: We took a case as a special prosecution case (at the request of Lincoln County) that involved a very vulnerable young man and we had an obligation to protect him. We did that. We had an obligation to impose criminal sanctions against the perpetrators of that crime and we did that. So I felt like we did exactly what we were supposed to do.
Q: There’s been a lot of talk about whether names the victim was called — watermelon, fried chicken, grape soda — whether those were racist hate words directed toward him.
Wasden: The statute that is in play is the malicious harassment statute. And what it says is that it shall be unlawful for any person maliciously, and with the specific intent, to intimidate or harass another person because of that person’s race, color, religion, ancestry or national origin. What we have to do is to step into the mind of the perpetrator, the defendant here. And we have to show beyond a reasonable doubt that he had the specific intent to harass this victim, this vulnerable victim. And that ... the specific intent for that was because of that person’s race or color or religion or so forth. That was the evidence that was missing. It isn’t what other persons may have said, it’s what this individual did. And what was in this individual’s mind. ... The incidents concerning grape soda, watermelon, those kinds of things occurred but not in the location or in the time frame of these acts. We didn’t have the evidence to show beyond a reasonable doubt ... that the specific intent to intimidate or harass was because of his race, color or so forth.
Q: What happened in the locker room?
Tony Pittz, Attorney General’s Office investigator: Before practice, a member of the football team either put his arm around our victim or gave him a hug. Another player gave him a wedgie, enough to tear his underwear. They chased one another around the locker room and went to practice. After practice, the victim’s underwear was torn enough that they’re hanging below his buttocks, exposing his buttocks. A member of the football team took a coat hanger and either once or twice, depending upon the witnesses, slips the shoulder end of the hanger in between his buttocks. At some point this hanger is stuck between the buttocks of the victim and the defendant John Howard kicks at the victim, either at the victim or at the hanger. He kicked at the victim, making contact with the hanger, either on purpose or on accident and forces the hanger further into the victim. The victim yells out as if he’s in pain, someone removes the hanger from him and throws it across the room. The coaches come into the room at that time and everyone shuts up.
Q: What did you consider in charging Mr. Howard?
Wasden: We applied those facts against the provision for forcible sexual penetration by the use of a foreign object. It says for every person who for the purpose of sexual arousal, gratification or abuse causes the penetration, however slight, of the genital or anal opening of another person by any object, instrument or device against his will. The question is whether, based upon that evidence, that we can establish beyond a reasonable doubt that the purpose for this anal penetration was sexual arousal, gratification or abuse. On the basis of that evidence, there isn’t evidence there was some sexual reference or sexual activity. There was nothing that raised that level of activity to something we could say we have proof beyond a reasonable doubt that the purpose of this anal entry was sexual arousal, gratification or abuse. In this instance, we would have to prove beyond a reasonable doubt that that purpose was sexual. In this instance, we didn’t have that evidence.
Q: What are your feelings about what happened?
Wasden: We don’t think this was good behavior in any way, shape or form. But the question isn’t whether we think that or not. The question is, based on this evidence, can we prove beyond a reasonable doubt elements of that crime? That’s what we had to do.
Q: What happened between the filing of the original felony and the final charge?
Hemmer: Over time cases evolve. They don’t always start charged one way and finish charged the same way. That’s through witnesses, how they develop over time, additional information that comes out, the best interests of the victim. All of those things are taken into account. As the case progressed, it became clear that we couldn’t prove the sexual intent element. It was important to the family and to the state that a felony conviction was obtained, but what statute does this conduct fit? And in this case it was felony injury to children.