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A Vermont attorney is attempting a unique defense in a case involving a 37-year-old man accused of having sexual intercourse with a foster child in his home. The defense rests on a technicality, and if successful the case could be dismissed.

The man, whose name will remain anonymous to protect the alleged victim’s identity, is facing two felony charges of sexual assault. He pleaded not guilty on both charges but could face up to life in prison under new state legislation if found guilty.

The Case

According to the police account, the alleged victim was 17 last summer when the sexual encounters took place. The girl reported to the police that she did not object to the man’s sexual advances because he was “hard on her.”

“She figured her life might be easier if she just went along with it. She said she was not ever explicitly forced or coerced into having sex, she just relented,” said Detective Trooper Richard Desany, who wrote the police report.

The report cites at least half a dozen sexual encounters as taking place in the girl’s room at the man’s home—where his wife and two young children also resided—and more than a dozen incidents of inappropriate touching in a car. 

Special Circumstances

Under Vermont law, 16 is the age at which a person can consent to sexual activity. However, one exception to this law involves guardian/child relationships. The man in this case is charged with violating a law that prohibits sexual activity with a child under the age of 18 who is entrusted to the accused’s care. This includes a foster child.

The man’s attorney, Bob Katims, is arguing that the girl could not be considered a foster child at the time of the sexual contact because state law implies that the term only applies to children under the age of 16.

Katims further argues that even if the girl could be considered a foster child, she could not be considered the suspect’s foster child. He cites documents—including foster care payments—that name the wife only.

“Yeah, it’s a technical defense, but it’s a crime that is defined by your status. If you are not a particular person, your conduct would otherwise be legal,” said Katims.

(Source: Burlington Free Press)

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