Ex-NHL player’s settlement in sexual assault case raises alarm
The former lead prosecutor in Larry Nassar’s serial sexual assault case, a state senator and a victims’ rights group are sounding the alarm about Monday’s expected outcome in the case of sexual assault of former NHL player Reid Boucher.
Boucher, 28, is set to be sentenced on Monday under the Holmes Youthful Trainee Act, or HYTA, which gives young offenders a chance to keep a clean public record if they successfully complete their sentence.
Boucher was 17 at the time of the reported sexual assault. He pleaded guilty last month to criminal sexual conduct in the third degree involving sexual penetration with an individual between the ages of 13 and 16.
But the case that brought him to court involved a 12-year-old girl.
And some of those looking into the matter say it’s a problem.
Boucher was initially charged with first-degree criminal sexual conduct, which carries a sentence of 25 years to life.
The charge dates back to 2011, when the now-adult woman in the case says he twice forced her, then 12, to use her mouth in an oral sexual assault. At the time, she was part of Boucher’s foster family while he participated in the United States National Hockey Team’s development program.
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The Washtenaw County District Attorney’s Office said there were complications in the case, such as evidentiary issues, and it made a plea offer to secure some accountability.
The first degree charge does not allow for the HYTA designation, but the lesser third degree charge, when it specifically involves a person between the ages of 13 and 16, does. Without HYTA, Boucher’s charge normally carries a sentence of up to 15 years in prison and a sex offender registration.
In December, Washtenaw County Circuit Judge Patrick Conlin agreed to grant Boucher HYTA, without an initial jail sentence, under a so-called “Cobbs Agreement” at the request of the attorney for Boucher’s defence. Conlin pointed out the time that had passed and Boucher’s age at the time, and awarded HYTA despite the survivor’s objection.
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Conlin’s office had previously said it would not comment on the matter and could not be reached for comment on the HYTA issue before it was published. Boucher’s attorney previously expressed support for the resolution, and Washtenaw County prosecutors declined to comment on the sentence or HYTA.
When a judge accepts a guilty plea, he must establish the basis for a finding that the defendant is indeed guilty — a factual basis. In court, this may give the impression that the defendant confirms his actions on the date of the incident.
Currently, Michigan court rules state that such support may be based on “the offense charged or the offense to which the defendant pleads”; the Michigan Supreme Court is considering a rule change in which the finding is based solely on the offense to which the defendant pleads guilty, not the one initially charged.
But Nassar’s lead prosecutor, Angela Povilaitis, takes a narrower view of HYTA than that applied in the Boucher case.
A case of penetration involving a 12-year-old child falls under the most serious charge in the first degree, and the facts of the offense itself must lead to the HYTA designation, she said. The law does not allow the discretion to accept a “fictitious plea”, as some call it.
“Otherwise you would have large cases with young children involving sexual penetration that would make an offender eligible for HYTA and that is simply not the intent of the legislation or this law,” she said.
After learning of the Boucher case, the Michigan Coalition to End Domestic and Sexual Violence addressed the concern – with HYTA being enforced in these “mock pleas”, said Sarah Rennie, the executive director.
The coalition found at least half a dozen cases where HYTA was applied to cases of victims under the age of 13.
In one case in the last year, the victim was 8 and the defendant 16, “which is clearly beyond the scope of what HYTA should be,” Rennie said.
She said she couldn’t divulge more details about it with the 8-year-old, but said the tactic seemed to be a new trend mostly in the last year. Her group’s review did not specifically examine whether penetration was involved, but was based on ages.
Rennie said the HYTA deal in the Boucher case was not authorized by law. However, she said, there appears to be confusion with the court rules, and her organization will now push for changes to the law either to make HYTA even more explicitly prohibited where victims have less of 13, or to request that the rule under the third- degree burden be abolished entirely.
She noted that the Michigan legislature could still grant an exemption to young offenders under the age of two of the other person, as other state legislatures have done.
But longtime Detroit defense attorney Gabi Silver said she was worried about the HYTA crunch.
She said it’s not unusual to have less serious charges that don’t exactly match the specifics of a case – take, for example, a crime with a weapon that was definitely committed but where the accused is offered a charge just for an attempt.
She said there were a lot of considerations in these types of cases and that it was “foolish” to restrict the ability to solve the case and deny judges and prosecutors the discretion to convict or indict. charge based on different circumstances.
“When you classify every case as the same and restrict the ability to plea bargain or bargain when it’s necessary or really the right thing to do…I think that’s just not fair,” he said. she declared.
Jonathan Sacks, director of the State Appellate Defender Office, said HYTA is properly drafted to enable consideration of young people in the criminal justice system.
Sacks said he couldn’t speak specifically to any case, but speaking generally about the law, noted that HYTA is an acknowledgment that children are different – something the U.S. Supreme Court recognized in decisions of recent years, due to what is now known about how brains develop.
Sacks said a defendant can plead guilty to a lesser charge, if the prosecutor allows it, and “the law allows, as it should, that when someone pleads guilty to a lesser charge, the factual basis can come of the original charge.”
His organization and others such as the Michigan Innocence Clinic have made submissions to the Michigan Supreme Court on the topic of restricting a factual basis to the charge used for a plea.
Although some call it a “fictitious plea”, Sacks uses the term “fair plea”.
Sacks pointed to the Innocence Clinic’s submission, which argues that the court’s rule change would hurt innocent individuals who enter a plea to a lesser charge for fear of a higher sentence if they go to trial.
And, Sacks said finding a lesser charge that makes more sense for the outcome is “the way our system has to work sometimes, especially when you have young people who would otherwise be treated as adults.”
Povilaitis said it was concerning when a victim disagreed with the use of HYTA, and such an objection should be taken into account.
Additionally, she said it was important for the community to understand that late disclosures of sexual assault are not uncommon, and although one child survivor denied anything happened, it did not happen. doesn’t mean she’s lying now.
More than that, there are concerns when a HYTA deal like Boucher’s is allowed, she said.
Offenders are avoiding jail time as they otherwise would and are avoiding sex offender registration, she said.
“And the public wouldn’t be told the story of this offender or in particular of someone involved in potentially youth sports, on the right – in the future if he were to coach or do other things – this file would be sealed and not available to others,” she said. .
Rennie also expressed concern for this part.
“We know that sex offenders are often serial offenders, especially when it comes to minors and paedophilia,” she said.
Michael Rataj, a Detroit criminal defense attorney for over 30 years, simply said Boucher was eligible for HYTA at the time the offense occurred; this eligibility age was also recently increased to 26 when Michigan law in 2021 was amended to allow 17-year-olds to be treated as minors at the discretion of a prosecutor.
Rataj also noted the agreement between the parties that needed to happen for the resolution to be reached, that he was sure everyone involved knew the law and that the advocacy followed it.
“It’s not out of the realm of possibility,” he said of HYTA’s application of the matter. “I’ve seen HYTAs on CSC-3s (Criminal Sexual Conduct Third Degree). Me personally, I’ve had HYTA pleas to manslaughter and other felonies, felonies. That’s the whole point of this one- this.
State Senator Jim Runestad of R-White Lake Township said there are multiple loopholes in HYTA that need to be closed.
The one he sought to approach was identified by the Lansing State Journal, which discovered that an accusation described as “archaic” – the seduction of a single woman – was used to enforce HYTA.
Runestad said he supports certain exceptions for minors in otherwise consensual situations, but does not believe HYTA should apply to minors in cases of sexual assault without any form of consent.
And he called the reported use of HYTA for a case with an 8-year-old child “outrageous.”
“It’s disgusting to me that these rapists are walking,” he said.
Darcie Moran is a breaking news reporter and podcaster for the Detroit Free Press. She was an investigative reporter and covered justice issues, crime, protests, wildfires and government affairs. Contact Moran: [email protected] Twitter: @darciegmoran.
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