Tougher laws can also make it tougher for victims

By Brian Knox | Published Wednesday, February 22, 2017

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The discussion around mandatory minimum sentences usually involves drug offenses.

But last week we saw an example locally of another type of mandatory minimum sentencing – one involving sexual abuse of a child.

When a Wise County jury found 61-year-old Terry McElroy of Alvord guilty of continuous sexual abuse of a child, the sentence was automatic: life in prison.

Brian Knox

Brian Knox

That’s because of a recent law that sets a mandatory life sentence for the second conviction of certain types of child sexual assault offenses in Texas.

Because McElroy had been convicted of indecency with a child by contact in 1995 in Tarrant County, last week’s conviction triggered the automatic life punishment.

If McElroy didn’t have the previous conviction, he still would have faced a minimum of 25 years in prison for the new offense.

Texas lawmakers haven’t been shy about passing tough laws against child sexual assaults. It’s an easy idea to get behind, and not many legislators want to be known as someone who tried to block a bill that would provide harsher penalties for those who would commit sex crimes against our most vulnerable population.

In addition to providing harsher penalties, another recent new law allows the victim of previous sexual assaults in some cases to testify against a defendant in the guilt/innocence phase of the trial. Normally, that type of testimony wouldn’t be allowed until the punishment phase.

The new laws are designed to help prosecutors obtain justice for child sexual assault victims, to deter would-be child molesters and to keep offenders locked up for longer periods of time so they can’t commit their crimes again.

Those are all good reasons for the strengthened sex offender laws, but I also saw a potential flaw in these laws on display last week in the courtroom.

Both prosecutors and McElroy’s defense attorneys did good jobs arguing their cases, but it was apparent from the beginning that the state seemed to have the upper hand, particularly after they called the victim in the previous conviction as their first witness. In what was clearly a difficult thing to do, the previous victim testified about how McElroy had molested her when she was a young child.

It also no doubt made a big impact on the jury, even though they were instructed not to convict McElroy on the new charge based on how they felt about the previous conviction.

The victim in the most recent assault, McElroy’s granddaughter, also testified along with her mother, providing powerful testimony against McElroy.

The jury needed only about 20 minutes to determine guilt.

It seemed like the type of case that normally would have been adjudicated before reaching the trial stage. Prosecutors often offer a plea bargain to defendants who agree to plea guilty.

But in this case, there seemed to be no need for a plea bargain. That’s because a guilty plea could only result in one sentence: life in prison. Therefore, the defendant didn’t have anything to lose by taking the case to a jury.

That resulted in not one but two people who were the victims of sexual assault having to take the stand in front of 12 people, a judge, attorneys, family members, other members of the public and the man they accused of committing the assaults and talking about the details of the crime and how it affected them.

The mother of the most recent assault victim testified that she had sought counseling for her daughter after the assault, and they would be seeking counseling again after her daughter testified.

Testifying about sexual abuse can clearly be a traumatic experience for children or adults.

It’s always a defendant’s right to have his or her case tried before a jury of their peers, but the tougher laws for repeat offenders can remove the incentive to reach a plea agreement prior to the trial.

And that could result in more child victims having to relive those crimes in the courtroom, like the two who testified last week.

It may be an unintended consequence of an otherwise well-meaning law.

Brian Knox is the Messenger’s special projects manager. He’s been covering Wise County courts for 15 years.

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